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Petitions of the week

Two cases on the state-secrets privilege

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the federal government’s state-secrets privilege to protect classified information from disclosure.

In United States v. Zubaydah, respondent Zayn Husayn, also known as Abu Zubaydah, is a former associate of Osama bin Laden who was detained abroad after his capture in Pakistan and who is now being held at the U.S. government’s Guantanamo Bay detention facility. Zubaydah alleges that, before being transferred to Guantanamo, he was held at a CIA “dark site” in Poland, where two former CIA contractors used “enhanced interrogation techniques” against him. Zubaydah, through his attorneys, intervened in a Polish criminal investigation into the CIA’s conduct in that country, and he sought to compel the U.S. government to hand over evidence connected with that investigation. Though the government has declassified some information about Zubaydah’s treatment in CIA custody, it has protected other information as privileged state secrets. Rejecting the government’s argument, the U.S. Court of Appeals for the 9th Circuit allowed discovery in the case to proceed.

In Federal Bureau of Investigation v. Fazaga, Yassir Fazaga and two other Muslim men from Southern California brought multiple constitutional claims alleging that the FBI used a confidential informant to covertly gather information about Muslims in their communities based solely on their religion. The district court dismissed the claims on the basis of the state-secrets privilege. The 9th Circuit reversed and remanded for further proceedings, instructing the district court, with restrictions, to review the material over which the privilege was claimed to determine whether the surveillance was authorized and conducted lawfully.

The federal government is asking the Supreme Court to review the 9th Circuit’s rulings in both cases.

These and other petitions of the week are below:

Miles v. California
Issues: (1) Whether a court reviewing a claim under Batson v. Kentucky may consider reasons distinguishing stricken jurors from those accepted by the prosecutor when the prosecutor did not cite the distinguishing reason in the trial court as a basis for the strike; and (2) whether, for purposes of comparative juror analysis, the jurors being compared must have expressed the same combination of responses in all material respects for the comparison to have significant probative value.

Brewer v. Hooks
Issues: (1) Whether probable cause or arguable probable cause exists to seek a search warrant when an officer relies upon an informant who turns himself in, admits commission of multiple including unreported/ unsolved crimes, and whose information is partially corroborated; (2) whether an officer retains qualified immunity when he takes the additional step of consulting with and relying upon the advice of an assistant district attorney that probable cause exists prior to seeking and securing a search warrant; and (3) whether the subject of a knock-and-announce search warrant raising a weapon at officers executing such a warrant breaks the causal connection between the allegedly flawed search warrant and damage claims, including the death of a homeowner shot by officers who warned the subject homeowner to drop his weapon before firing.

Brown v. Davenport
Issue: Whether a federal habeas court may grant relief based solely on its conclusion that the test from Brecht v. Abrahamson is satisfied, as the U.S. Court of Appeals for the 6th Circuit held, or whether the court must also find that the state court’s application of Chapman v. California was unreasonable under 28 U.S.C. § 2254(d)(1), as the U.S. Courts of Appeals for the 2nd, 3rd, 7th, 9th and 10th Circuits have held.

United States v. Abu Zubaydah
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.

Federal Bureau of Investigation v. Fazaga
Issue: Whether Section 1806(f) of the Foreign Intelligence Surveillance Act of 1978 displaces the state-secrets privilege and authorizes a district court to resolve, in camera and ex parte, the merits of a lawsuit challenging the lawfulness of government surveillance by considering the privileged evidence.

Washington v. Ali
Issue: Whether Graham v. Florida and Miller v. Alabama require an individual proportionality determination before imposing any sentence on a juvenile offender convicted in adult court.

Washington v. Domingo-Cornelio
Issue: Whether Graham v. Florida and Miller v. Alabama require an individual proportionality determination before imposing any sentence on a juvenile offender convicted in adult court.

Miesen v. Munding
Issues: (1) Whether the plaintiff in a derivative action, brought under diversity jurisdiction, must plead and prove the adequacy of its derivative demand letter as part of Federal Rule of Civil Procedure 23.1’s pleading requirements and whether the court must apply the law of the state of incorporation to determine the letter’s adequacy; and (2) whether a de-novo or an abuse-of-discretion standard applies to the review of dismissals of derivative actions under Rule 23.1.

Allen v. Wells Fargo & Co.
Issues: (1) Whether, under Fifth Third Bancorp v Dudenhoeffer, fiduciaries of an employee stock ownership fund are effectively immune from duty-of-prudence liability for the failure to publicly disclose inside information; and (2) whether Dudenhoeffer’s framework extends beyond prudence-based claims and applies to duty-of-loyalty claims against ESOP fiduciaries.

Recommended Citation: Andrew Hamm, Two cases on the state-secrets privilege, SCOTUSblog (Jan. 22, 2021, 1:36 PM),