What Torture Ruling Means For State Secrets Privilege

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By Robert Loeb and Cesar Lopez-Morales (March 3, 2022, 6:58 PM EST) — On Oct. 6, 2021, the U.S. Supreme Court heard oral argument in U.S. v. Zubaydah, a case about whether the state secrets privilege is properly invoked to bar a request from Guantanamo detainee Abu Zubaydah, an alleged senior al-Qaida official, for discovery of information to use in foreign proceedings.

Today, in an opinion by Justice Stephen Breyer, the court held that the state secrets privilege required dismissal of Zubaydah’s action. This ruling was the first state secrets ruling in more than a decade, producing five separate opinions that will continue to provide fodder among national security scholars regarding the future of…

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