Petitions of the Week: Two Instances on the Privilege of State Secrets and techniques

Posted January 22, 2021 at 1:36 pm by Andrew Hamm

This week we highlight certification filings urging the Supreme Court to consider, among other things, the federal government’s privilege to protect classified information from disclosure.

In the US against Zubaydah, respondent Zayn Husayn, also known as Abu Zubaydah, is a former Osama bin Laden employee who was detained overseas after being captured in Pakistan and is currently being held in the US government’s Guantanamo Bay Detention Center. Zubaydah claims that prior to his transfer to Guantánamo, he was held in a CIA “dark place” in Poland where two former CIA contractors used “enhanced interrogation techniques” against him. Zubaydah, through his lawyers, intervened in a Polish criminal investigation into the conduct of the CIA in that country and attempted to force the US government to hand over evidence related to the investigation. Although the government has released some information about Zubaydah’s treatment in CIA custody, it has protected information other than privileged state secrets. The U.S. Court of Appeals for the 9th Circuit dismissed the government’s argument and allowed the case to be exposed.

In the Federal Bureau of Investigation against Fazaga, Yassir Fazaga and two other Muslim men from southern California made several constitutional allegations 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 secret privilege. The 9th Circuit was reversed and referred back for further proceedings, with the District Court being ordered, with restrictions, to review the material on which the privilege was claimed to determine that the surveillance was approved and lawfully conducted.

The federal government calls on the Supreme Court to review the judgments of the 9th district in both cases.

These and other petitions of the week are listed below:

Miles v. California
Problems: (1) Can a court examining a Batson v. Kentucky lawsuit consider grounds that distinguish the jury concerned from those accepted by the prosecutor if the prosecutor has not cited the discrimination ground in the court as the basis for the strike? and (2) whether the judges being compared must have expressed the same combination of responses in all material respects for the purpose of comparative juror analysis in order for the comparison to have significant probative value.

Brewer v. Hooks
Problems: (1) Is there a probable or probable reason for seeking a warrant when an officer relies on a self-registering informant, allowing multiple crimes, including unreported / unsolved crimes, to be partially confirmed ? (2) Whether an officer retains qualified immunity if he takes the additional step of consulting with and relying on the advice of a deputy district attorney that there is a probable reason before applying and securing a search warrant; and (3) whether the subject of a search warrant bringing a weapon against officers executing such an arrest warrant disrupts the causal link between the allegedly flawed search warrant and claims for damages, including the death of a homeowner shot by officers who warned The Homeowner concerned must drop their gun before firing.

Brown v. Davenport
problem: Whether a federal habeas court can only grant relief based on its conclusion that Brecht’s test against Abrahamson has been met, as the US Court of Appeals for the 6th Circuit found, or whether the court must also determine that the motion of the Chapman District Court v. California was inappropriate under 28 USC § 2254 (d) (1), as the US appeals courts ruled for the 2nd, 3rd, 7th, 9th and 10th circuits.

United States v. Abu Zubaydah
problem: Whether the U.S. Court of Appeals for Circuit Ninth made a mistake in denying the United States’ claim to the state secrecy privilege based on the court’s own assessment of possible harm to national security and another discovery under 28 USC 1782 required (a) against former Central Intelligence Agency contractors in matters involving alleged secret CIA activity.

Federal Bureau of Investigation v Fazaga
problem: Whether Section 1806 (f) of the Foreign Intelligence Surveillance Act of 1978 suppresses the privilege of state secrets and empowers a district court to judge the merits of a lawsuit challenging the legality of state surveillance, taking into account the privileged in camera clarify evidence.

Washington v. Ali
problem: Whether Graham v Florida and Miller v Alabama require an individual proportionality test before convicting a juvenile offender convicted in adult courts.

Washington versus Domingo-Cornelio
problem: Whether Graham v Florida and Miller v Alabama require an individual proportionality test before convicting a juvenile offender convicted in adult courts.

Lousy v. Munding
Problems: (1) Whether the plaintiff in a derivative action that falls under the jurisdiction of diversity must assert and demonstrate the adequacy of his inferred petition letter as part of the briefing requirements of Federal Code of Civil Procedure 23.1, and whether the court must apply the law of the state of incorporation to determine the adequacy of the writing; and (2) whether a de novo or misuse standard applies to the review of the dismissal of inferred claims under Rule 23.1.

Allen v. Wells Fargo & Co.
Problems: (1) Are trustees of an employee participation fund in accordance with Fifth Third Bancorp / Dudenhoeffer effectively protected from the duty of care for non-disclosure of inside information? and (2) whether the scope of Dudenhoeffer goes beyond prudent claims and applies to claims of fiduciary duty towards ESOP trustees.

Posted in Miles versus California, Brewer versus Hooks, Brown versus Davenport, USA versus Abu Zubaydah, Federal Bureau of Investigation versus Fazaga, Washington versus Ali, Washington versus Domingo-Cornelio, Miesen versus Munding, Allen versus Wells Fargo & Co., Featured, Cases in the pipeline

Recommended citation:
Andrew Hamm, Petitions of the Week: Two Cases on State Secret Privilege,
SCOTUSblog (January 22, 2021, 1:36 p.m.),

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