Kramer Levin Files Amicus Brief on Behalf of September 11th Families for Peaceful Tomorrows in U.S. v. Husayn

On Aug. 20, Kramer Levin filed an amicus brief on behalf of September 11th Families for Peaceful Tomorrows in U.S. v. Husayn, pending before the United States Supreme Court. 

Peaceful Tomorrows is an organization of more than 250 family members of those killed in the attacks of Sept. 11, 2001, who have united to turn their grief into action for peace. Founded in February 2002, Peaceful Tomorrows’ mission is to develop and advocate for peaceful actions in the pursuit of justice—breaking down the cycles of violence engendered by war and terrorism.

The case before the Supreme Court concerns the U.S. government’s invocation of the state secrets privilege to quash subpoenas seeking testimony concerning the government’s torture of Abu Zubaydah in Poland as part of the CIA’s “enhanced interrogation technique” program. Mr. Zubaydah has been detained by the government in Guantanamo Bay, Cuba for more than a decade without trial or charges. The government has publicly conceded that he was not a member of Al-Qaeda and was not involved with the Sept. 11 attacks. The government has also publicly acknowledged, in great detail, that Mr. Zubaydah was subjected to water boarding, sleep deprivation, burial alive, and many other brutal forms of torture as part of the CIA’s enhanced interrogation technique program.

In the case before the Supreme Court, Mr. Zubaydah served subpoenas seeking the testimony of two CIA contractors in connection with a case and criminal investigation pending in Poland concerning his treatment while detained there. The CIA contractors designed the enhanced interrogation technique program and were involved with and witnessed the interrogation of Mr. Zubaydah. With the government’s knowledge, these contractors have already testified publicly twice, including about Mr. Zubaydah’s interrogation at a foreign CIA “black site,” and one of the contractors published a book containing a detailed description of Mr. Zubaydah’s treatment. Nevertheless, the government intervened in the case to quash the subpoenas pursuant to the state secrets privilege and national security concerns. The district court quashed the subpoenas, but the United States Court of Appeals for the Ninth Circuit reversed, holding that the district court was obliged to first attempt to “disentangle” any non-privileged information from privileged information before quashing the subpoenas, particularly in light of the deponents’ extensive prior testimony and the detailed public record concerning Mr. Zubaydah’s treatment. The government appealed to the Supreme Court.

A central issue on appeal is the judiciary’s role in ensuring that the government does not abuse the state secrets privilege to suppress information in court proceedings that is public, or to shield evidence that is not a matter of national security, but rather a matter of embarrassment. Peaceful Tomorrows believes that the Supreme Court should affirm the Ninth Circuit’s decision and require the district court to fulfill its crucial gatekeeping function by attempting to disentangle non-privileged information from privileged information, consistent with existing Supreme Court precedent.

In the amicus brief, the members of Peaceful Tomorrows recount how they witnessed firsthand the dangers of potential government abuses of the state secrets privilege and the importance of a judge’s gatekeeping role in safeguarding against such abuses. Collectively, the members of Peaceful Tomorrows have attended all 41 pretrial hearings in the Office of Military Commissions’ case against the five men charged with assisting in the 9/11 attacks. The case remains stalled in the pretrial phase, nearly a decade after it started. In their amicus brief, the members of Peaceful Tomorrows provide accounts of the government’s sweeping invocations of national security in those proceedings to suppress evidence of the defendants’ torture at CIA black sites, the protracted delays caused in the proceedings by the invocations of a national security, and the importance of judges exercising their gatekeeper function.

Peaceful Tomorrows explains that this experience has taught its members that the government’s invocations of the state secrets privilege should be carefully examined when it comes to the enhanced interrogation technique program. Peaceful Tomorrows argues that the expanding public record and the risk of further embarrassment to the government underscore the need for disentanglement and for courts to fulfill their gatekeeping function to maintain the appropriate balance between protecting national security and preserving a fair and open court system. Peaceful Tomorrows argues that meaningful judicial scrutiny of national security invocations is critical to the administration of justice generally, will advance the cause of justice on behalf of the loved ones they lost on Sept. 11, and will effect positive change in the Military Commissions trial in Guantanamo Bay.

View the amicus brief here.