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lol eat poo poo Clyburn
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Feb 25, 2022 17:10
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galenanorth posted:pros https://www.cnn.com/2022/02/25/politics/supreme-court-ketanji-brown-jackson/index.html I'm not going to be too distressed by a lawyer for the plaintiff saying "I don't like this judge because she ruled against me" as a reason she shouldn't be on the SCOTUS. A class action lawsuit for discrimination seems exceptionally stupid given that the levels of discrimination people can experience would not be properly addressed by a class action settlement and is something that should probably be handled on a case by case basis. Kalli posted:In response to that cons: Yeah gently caress this guy. This just makes her sound even better.
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Feb 25, 2022 17:16
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EDIT: Nahhh.
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Feb 25, 2022 17:17
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Finally an advocate on the court for unrepresented communities like Lockheed Martin and other racist employers
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Feb 25, 2022 17:50
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VitalSigns posted:Finally an advocate on the court for unrepresented communities like Lockheed Martin and other racist employers She ruled in accordance with the law, and to avoid a settlement that was going to benefit the class counsel and Lockheed - it would have absolutely hosed over the employees and resulted in Lockheed escaping a ton of liability. But because it (formally) sided with Lockheed, people like you are going to claim it makes her bad.
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Feb 25, 2022 18:15
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I'm just relieved that we somehow avoided Childs, who is wildly awful so of course she was the apparent favorite.
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Feb 25, 2022 18:18
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Kalman posted:She ruled in accordance with the law, and to avoid a settlement that was going to benefit the class counsel and Lockheed - it would have absolutely hosed over the employees and resulted in Lockheed escaping a ton of liability. I might find this convincing if any proof was provided that the employees went on to sue individually and get a better deal To me it sounds like the usual Catch-22 "Oh no no no you don't want to sue as a class, if you sue individually you can control your own settlement see, I'm really helping you by dismissing your case" "Ok I'll do that then" "Oh sorry looks like you don't have six million dollars each no justice for you, and anyway you can't prove the discrimination you each faced individually wasn't just all coincidence" But maybe I am wrong and they went on to win huge settlements, do you know? VitalSigns fucked around with this message at 18:39 on Feb 25, 2022 |
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Feb 25, 2022 18:32
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VitalSigns posted:Finally an advocate on the court for unrepresented communities like Lockheed Martin and other racist employers Yes that's exactly what she did and she's just a woman version of Clarence Thomas, good job!
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Feb 25, 2022 18:39
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VitalSigns posted:Finally an advocate on the court for unrepresented communities like Lockheed Martin and other racist employers Yeah there's definitely better nominees in the court's history, who had a public defender background like her. Such as and
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Feb 25, 2022 19:14
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VitalSigns posted:I might find this convincing if any proof was provided that the employees went on to sue individually and get a better deal So here's the thing. Lockheed agreed to this settlement. But. There was extremely clear case law (Walmart v. Dukes) that the proposed class was not certifiable as a class action. Why would they agree to a settlement in a case they could have eliminated? (It may be useful to keep in mind that, after the class certification was refused so Lockheed couldn't get its collusive settlement, Lockheed cited Dukes to get the class action killed entirely.) Do you think that Lockheed, out of the goodness of their heart, adopted a fair settlement when they could have nuked the case entirely? Or is it more likely that they negotiated a settlement that would benefit class counsel and representatives and also gently caress over most of the rest of the class to Lockheed's benefit? (The named plaintiffs later settled the case, non-class, so they got paid at a minimum. No record of how much they got.)
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Feb 25, 2022 19:15
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We're really hung up on one case where a judge oversaw a case, in the United states, where a class action was brought between relatively poor people and a military industrial contractor, in the United states, and a settlement was reached that screwed over the plaintiffs, in the United States like, this is on the court history for a judge in the United States, and that is upsetting beyond baseline career expectations for any judge in the United States? Potato Salad fucked around with this message at 19:30 on Feb 25, 2022 |
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Feb 25, 2022 19:28
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was somebody holding their breath for Justice John Brown Reanimated JD Esq or somethingJaxyon posted:Yeah there's definitely better nominees in the court's history, who had a public defender background like her. that's well put Potato Salad fucked around with this message at 19:34 on Feb 25, 2022 |
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Feb 25, 2022 19:29
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A little grousing in this thread is unavoidable since the person who nominated her is a Democrat, after all. But yeah you can much more easily make the case she ruled against Lockheed since they (and some big shot plaintiff lawyers in line to make millions) were the ones who were asking her for a favor.
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Feb 25, 2022 19:34
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Kalman posted:
Kalman posted:(The named plaintiffs later settled the case, non-class, so they got paid at a minimum. No record of how much they got.)
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Feb 25, 2022 19:46
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Jaxyon posted:Yeah there's definitely better nominees in the court's history, who had a public defender background like her. Yeah it's like criticizing the pope, anyone who makes it to the top of a terrible unjust system is gonna have some skeletons By normal human standards Francis is a massive piece of poo poo bigot rear end in a top hat, but if you judge him against other popes whoa he's the best ever and it's not even close. I think we should still criticize the pope though
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Feb 25, 2022 19:51
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VitalSigns posted:Probably not, but that raises the question if they could all get more suing individually why the class action at all. Were they just tricked by unscrupulous lawyers (maybe, it happens) They probably sued as a class because it's a way to pump up the money received by counsel/class reps, since you're representing the interests of lots of people and you get to take your cut before any of it goes to them. Remember that a class action is filed by lawyers and a couple members of the class - they don't need permission from the other members of the class they're putatively representing to file. That's why you often wind up with competing class representatives in large-scale class actions - each one is competing to be the one who gets the lion's share of the recovery. That was actually one of KBJ's problems with the class. The other members of the class would be excluded from the settlement unless they did everything just right, but would still lose their rights to sue Lockheed over "'any and all racial employment discrimination claims of whatever nature, known or unknown,' including but not limited to all 'claims of alleged racial discrimination in employment or in the provision of employee benefits claims under Title VII, Section 1981, ERISA[,]' and 'any other federal, state, or local' law)." All that while only receiving payment for the single behavior challenged in the suit w/r/t unfair performance review processes. (And yeah, settlements being private is insanely frustrating as an outside observer, even if there's perfectly good reasons for it.)
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Feb 25, 2022 19:58
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Well ok you've convinced me the proposed settlement was actually pretty bad so I guess I'll wait and see if anything else comes out or if she's actually maybe okay Lindsay Graham hates her so that's a good sign
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Feb 25, 2022 20:31
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VitalSigns posted:Lindsay Graham hates her so that's a good sign This is universally a good sign.
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Feb 25, 2022 20:37
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VitalSigns posted:... It's totally true but this statement still made me laugh. I hate that man so much lol
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Feb 25, 2022 20:56
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https://twitter.com/TheOnion/status/1497304178749812738
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Feb 25, 2022 22:56
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https://twitter.com/toddruger/status/1498856792771682304?s=21
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Mar 2, 2022 06:38
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KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, SOTOMAYOR, and K AVANAUGH, JJ., joined, and in which THOMAS, ALITO, and B ARRETT, JJ., joined as to all but Part II–B. SOTOMAYOR, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, J., joined as to Parts II, III, and IV.
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Mar 7, 2022 20:49
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Mr. Nice! posted:KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, SOTOMAYOR, and K AVANAUGH, JJ., joined, and in which THOMAS, ALITO, and B ARRETT, JJ., joined as to all but Part II–B. SOTOMAYOR, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, J., joined as to Parts II, III, and IV. And what is the name of this routine?
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Mar 7, 2022 21:00
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Good job on that US Attorney for coming up such a ridiculous interpretation of the armed career criminal act that got a 9-0 “well obviously it doesn’t mean this” out of this court but they seemed to struggle to set up a standard for lower courts to apply.
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Mar 7, 2022 21:02
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Mr. Nice! posted:KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, SOTOMAYOR, and K AVANAUGH, JJ., joined, and in which THOMAS, ALITO, and B ARRETT, JJ., joined as to all but Part II–B. SOTOMAYOR, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. GORSUCH, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, J., joined as to Parts II, III, and IV. That’s not really that bad. Just a bunch of concurrences. Here’s a fun one from the Federal Circuit: Opinion filed by Circuit Judge O’MALLEY, in which Circuit Judges NEWMAN, LOURIE, MOORE, and WALLACH join, and in which Circuit Judges DYK and REYNA concur in result. Opinion filed by Circuit Judge MOORE, in which Circuit Judges NEWMAN and O’MALLEY join. Opinion filed by Circuit Judge REYNA, in which Circuit Judge DYK joins, and in which Chief Judge PROST and Circuit Judges TARANTO, CHEN, and HUGHES join in part. Opinion filed by Circuit Judge TARANTO, in which Chief Judge PROST and Circuit Judges CHEN and HUGHES join, dissenting from the judgment, and in which Circuit Judges DYK and REYNA join in part in other respects. Opinion dissenting from the judgment filed by Circuit Judge HUGHES, in which Circuit Judge CHEN joins.
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Mar 8, 2022 04:55
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quote:When Supreme Court Justice Clarence Thomas was promoting a new release of his 2007 memoir last October, he made an interesting choice for his public relations firm, a company run by one of the most influential figures in conservative legal circles: Leonard Leo. https://www.thedailybeast.com/supreme-court-justice-clarence-thomas-strange-pick-to-promote-his-book-says-it-all
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Mar 8, 2022 18:46
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So close to Leonardo Leonardo https://www.youtube.com/watch?v=zyNWXxhihY0
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Mar 9, 2022 01:22
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 Opinion! Trying to clear the backlog. I blame Mardi Gras. Here's one from February 24.UNICOLORS, INC. v. H&M HENNES & MAURITZ, L. P. TLDR: A copyright registration is valid, even if it contains inaccurate information, so long as the copyright holder didn’t know the registration was inaccurate. This includes both a mistake of law (misunderstanding the law) or a mistake of fact (misunderstanding the facts). Holding / Majority Opinion (Breyer) A valid copyright registration provides a copyright holder with important and sometimes necessary legal advantages. It is, for example, a prerequisite for bringing a “civil action for infringement” of the copyrighted work. ,,, To obtain registration, the author of a work must submit to the Register of Copyrights a copy of the work and an application. The application must provide information about the work. Some of this information is purely factual, but some of it incorporates legal conclusions. If the Register determines that the work is copyrightable and meets other statutory requirements, she will issue a certificate of registration. The information on this certificate reflects the information that the copyright holder provided on the application. Naturally, the information provided on the application for registration should be accurate. Nevertheless, the Copyright Act provides a safe harbor. It says that a certificate of registration is valid “regardless of whether the certificate contains any inaccurate information, unless— “(A) the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate; and “(B) the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.” The important point for our purposes is that a certificate of registration is valid even though it contains inaccurate information, as long as the copyright holder lacked “knowledge that it was inaccurate.” The question before us concerns the scope of the phrase “with knowledge that it was inaccurate.” [That is, does it include mistakes of law or only mistakes of fact]. … [As you might expect, Unicolors has some registrations and sued H&M. H&M defended on the grounds that Unicolors had improperly filed for a single application covering 31 works, which requires that the works were “included in the same unit of publication”, and apparently some of the works had been held back for certain customers. The 9th Circuit found that, since Unicolors knew the works had been held back, they knew about the inaccuracy, even if Unicolors didn’t understand that meant the works weren’t in the same unit of publication.] A brief analogy may help explain the issue we must decide. Suppose that John, seeing a flash of red in a tree, says, “There is a cardinal.” But he is wrong. The bird is not a cardinal; it is a scarlet tanager. John’s statement is inaccurate. But what kind of mistake has John made? John may have failed to see the bird’s black wings. In that case, he has made a mistake about the brute facts. Or John may have seen the bird perfectly well, noting all of its relevant features, but, not being much of a birdwatcher, he may not have known that a tanager (unlike a cardinal) has black wings. In that case, John has made a labeling mistake. He saw the bird correctly, but does not know how to label what he saw. Here, Unicolors’ mistake is a mistake of labeling. But unlike John (who might consult an ornithologist about the birds), Unicolors must look to judges and lawyers as experts regarding the proper scope of the label “single unit of publication.” The labeling problem here is one of law. Does that difference matter here? We think it does not. Our reasons are straightforward. For one thing, we follow the text of the statute. Section 411(b)(1) says that Unicolors’ registration is valid “regardless of whether the [registration] certificate contains any inaccurate information, unless . . . the inaccurate information was included on the application for copyright registration with knowledge that it was inaccurate.” Both case law and the dictionary tell us that “knowledge” has historically “meant and still means ‘the fact or condition of being aware of something.’” I Unicolors says that, when it submitted its registration application, it was not aware (as the Ninth Circuit would later hold) that the 31 designs it was registering together did not satisfy the “single unit of publication” requirement. If Unicolors was not aware of the legal requirement that rendered the information in its application inaccurate, it did not include that information in its application “with knowledge that it was inaccurate.” Nothing in the statutory language suggests that this straightforward conclusion should be any different simply because there was a mistake of law as opposed to a mistake of fact. To the contrary, nearby statutory provisions help confirm that here “knowledge” refers to knowledge of the law as well as the facts. Registration applications call for information that requires both legal and factual knowledge. See, e.g., §409(4) (whether a work was made “for hire”); §409(8) (when and where the work was “published”); §409(9) (whether the work is “a compilation or derivative work”). Inaccurate information in a registration is therefore equally (or more) likely to arise from a mistake of law as a mistake of fact. That is especially true because applicants include novelists, poets, painters, designers, and others without legal training. Nothing in the statutory language suggests that Congress wanted to forgive those applicants’ factual but not their (often esoteric) legal mistakes. Other provisions of the Copyright Act confirm that, in this context, the word “knowledge” means actual, subjective awareness of both the facts and the law. Those provisions suggest that if Congress had intended to impose a scienter standard other than actual knowledge, it would have said so explicitly. … For another thing, cases decided before Congress enacted §411(b) “overwhelming[ly held] that inadvertent mistakes on registration certificates [did] not invalidate a copyright and thus [did] not bar infringement actions.” Many of those cases involved mistakes of law. … Further, those who consider legislative history will find that history persuasive here. It indicates that Congress enacted §411(b) to make it easier, not more difficult, for nonlawyers to obtain valid copyright registrations. … H&M argues that our interpretation of the statute will make it too easy for copyright holders, by claiming lack of knowledge, to avoid the consequences of an inaccurate application. But courts need not automatically accept a copyright holder’s claim that it was unaware of the relevant legal requirements of copyright law. We have recognized in civil cases that willful blindness may support a finding of actual knowledge. Circumstantial evidence, including the significance of the legal error, the complexity of the relevant rule, the applicant’s experience with copyright law, and other such matters, may also lead a court to find that an applicant was actually aware of, or willfully blind to, legally inaccurate information. H&M also argues that our interpretation is foreclosed by the legal maxim that “ignorance of the law is no excuse.” This maxim “normally applies where a defendant has the requisite mental state in respect to the elements of [a] crime but claims to be unaware of the existence of a statute proscribing his conduct.” It does not apply in this civil case concerning the scope of a safe harbor that arises from ignorance of collateral legal requirements. … For these reasons, the judgment of the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Breyer, joined by Roberts, Sotomayor, Kagan, Kavanaugh, and Barrett. Dissent by Thomas, joined by Alito and joined by Gorsuch except for Part II. Dissent (Thomas, joined by Alito and joined by Gorsuch except for Part II) A copyright registration is invalid if the registrant included materially inaccurate information in its application “with knowledge that [the information] was inaccurate.” In its petition for certiorari, Unicolors asked us to decide a question on which the Courts of Appeals were split: whether §411(b)(1)(A)’s “knowledge” element requires “indicia of fraud.” Specifically, Unicolors argued that “knowledge” requires “inten[t] to defraud the Copyright Office.” Yet now, after having “persuaded us to grant certiorari on this issue,” Unicolors has “chosen to rely on a different argument in [its] merits briefing.” It no longer argues that §411(b)(1)(A) requires fraudulent intent and instead proposes a novel “actual knowledge” standard. Because I would not reward Unicolors for its legerdemain, and because no other court had, before today, ever addressed whether §411(b)(1)(A) requires “actual knowledge,” I would dismiss the writ of certiorari as improvidently granted. … First, Unicolors has abandoned the actual question presented and now presses novel arguments in favor of reversal. We took this case to resolve an apparent split between the Eleventh Circuit, which has held that §411(b)(1)(A) requires “deceptive intent,” and the Ninth Circuit, which held below that “there is no such intent-to-defraud requirement”. Agreeing with the Eleventh Circuit, Unicolors argued in its petition for certiorari that “knowledge” requires “inten[t] to defraud.” But now, siding with the Ninth Circuit, Unicolors contends that a mere “knowing failure” satisfies §411(b)(1)(A). The United States, as amicus supporting Unicolors, agrees. And, obviously, so does H&M. Thus, no party or amicus before us supports the Eleventh Circuit’s position. Without “adversary presentation” on the actual question presented, we should dismiss. Second, as in Yee, Unicolors’ new merits-stage arguments present novel legal questions. Unicolors claims that “knowledge” in §411(b)(1)(A) is satisfied only by actual knowledge (i.e., an applicant subjectively knew of an inaccuracy) rather than actual or constructive knowledge (i.e., an applicant should have known of an inaccuracy). It further contends that a copyright applicant must actually know that it is misapplying a legal standard rather than simply misstating the facts. It is undisputed that Unicolors raised neither point below. It is also undisputed that there is no circuit split on either of Unicolors’ new arguments. And it is clear that the Court of Appeals did not meaningfully consider these questions. It said nothing about actual versus constructive knowledge, see 959 F. 3d, at 1200, and it merely implied, in a cursory sentence, that §411(b)(1)(A) requires knowledge of facts and not law, see ante, at 9 (citing 959 F. 3d, at 1200). Other than this halfway relevant and completely unreasoned statement, the Court cites no other opinion from any court that interprets §411(b)(1)(A). Thus, we are the “first court in the Nation” to decide the important questions that Unicolors belatedly presents. Yee, 503 U. S., at 538. I would decline the invitation to take that imprudent step. … The Court disputes none of this. Instead, it reasons that Unicolors’ new arguments are “‘fairly included’” in the question presented because, even though Unicolors originally proposed a fraud standard, it now argues for at least an element of that standard: actual knowledge of a misrepresentation. Ante, at 9 (quoting this Court’s Rule 14.1(a)). The Court misapplies Rule 14.1(a). … [Gorsuch does not join this part and may disagree with Thomas + Alito’s conclusion] In this case, the Court’s misstep comes at considerable cost. A requirement to know the law is ordinarily satisfied by constructive knowledge,because “actual knowledge of illegality” can be “difficult or impossible” to prove, . Yet here, the Court imposes an actual-knowledge-of-law standard that is virtually unprecedented except in criminal tax enforcement. And while the Court claims the word “knowledge” in §411(b)(1)(A) compels this conclusion, see ante, at 5, that result is far from certain. In Cheek, this Court required actual knowledge of law in light of a “willfulness” requirement. A “knowledge” requirement, by contrast, often encompasses actual and constructive knowledge. Moreover, as the Court recognizes, the other knowledge requirements in the Copyright Act are satisfied by either kind of knowledge. The Court points to no other Copyright Act provision that is satisfied by actual knowledge alone. That the Court reads §411(b)(1)(A) to be the lone exception is dubious. That the Court does so without permitting any other court in the country to first consider the question is unwise. * * * I would dismiss the writ of certiorari as improvidently granted because Unicolors has abandoned the question presented and instead proposes novel questions of copyright law that no other court addressed before today. I respectfully dissent. https://www.supremecourt.gov/opinions/21pdf/20-915_pol1.pdf ulmont fucked around with this message at 17:50 on Mar 9, 2022 |
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Mar 9, 2022 17:40
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Opinion! Trying to clear the backlog. I blame Mardi Gras. This is a massive doorstop (77 pages) from March 3, with a Gorsuch + Sotomayor dissent! UNITED STATES v. ZAYN AL-ABIDIN MUHAMMAD HUSAYN, AKA ABU ZUBAYDAH, ET AL. TLDR: The CIA can’t be forced to confirm or deny the existence of a CIA detention site in Poland. (a) The state secrets privilege permits the Government to prevent disclosure of information when that disclosure would harm national security interests. … (b) In certain circumstances, the Government may assert the state secrets privilege to bar the confirmation or denial of information that has entered the public domain through unofficial sources. … (c) The CIA contractors’ confirmation (or denial) of the information Zubaydah seeks would be tantamount to disclosure by the CIA itself. … (d) Zubaydah’s need for location information is not great, perhaps close to nonexistent. At oral argument, he suggested that he did not seek confirmation of the detention site’s Polish location so much as he sought information about what had happened there. (e) Here, the state secrets privilege applies to the existence (or nonexistence) of a CIA facility in Poland, and therefore precludes further discovery into all three categories of information the Ninth Circuit concluded to be nonprivileged. (f) This case is remanded with instructions to dismiss Zubaydah’s current application for discovery under §1782. P. 18. Holding / Majority Opinion (Breyer) Abu Zubaydah, a detainee in the Guantánamo Bay Naval Base, and his attorney filed an ex parte 28 U. S. C. §1782 motion in Federal District Court seeking to subpoena two former Central Intelligence Agency contractors. Zubaydah sought to obtain information (for use in Polish litigation) about his treatment in 2002 and 2003 at a CIA detention site, which Zubaydah says was located in Poland. The Government intervened. It moved to quash the subpoenas based on the state secrets privilege. That privilege allows the Government to bar the disclosure of information that, were it revealed, would harm national security. [The Ninth Circuit] concluded that the privilege did not cover information about the location of the detention site, which Zubaydah alleges to have been in Poland. The Court of Appeals believed that the site’s location had already been publicly disclosed and that the state secrets privilege did not bar disclosure of information that was no longer secret (and which, in any event, was being sought from private parties). The Government argues that the privilege should apply because Zubaydah’s discovery request could force former CIA contractors to confirm the location of the detention site and that confirmation would itself significantly harm national security interests. In our view, the Government has provided sufficient support for its claim of harm to warrant application of the privilege. We reverse the Ninth Circuit’s contrary holding. For present purposes, we can assume the following: In the aftermath of the September 11, 2001, terrorist attacks, the CIA believed that Zubaydah was a senior al Qaeda lieutenant likely to possess knowledge of future attacks against the United States. In March 2002, Zubaydah was captured by Pakistani government officials working with the CIA. The CIA then transferred him to a detention site that some sources allege was located in Thailand. Zubaydah remained at this location for several months. During that time he was subjected to what the Government then called “enhanced interrogation” techniques, including waterboarding, stress positions, cramped confinement, and sleep deprivation. The Government has since concluded that this treatment constituted torture. In December 2002, the CIA transferred Zubaydah to a different detention site—the site at issue here. The CIA has never confirmed its location, but Zubaydah and many others believe it was in Poland. In September 2006, the Government transferred Zubaydah to its detention facility at the Guantánamo Bay Naval Base. He has been detained in Guantánamo Bay ever since. Some of this information and related details have appeared in various publicly-available documents….Publicly available sources say that, in 2002 and 2003, Zubaydah was detained at a CIA facility in Poland. But, the Government states, the CIA itself has never confirmed that one or more of its clandestine detention sites was located in any specific foreign country. Neither, as far as we can tell from the record, have the contractors Mitchell and Jessen named the specific foreign countries in which CIA detention sites were located. Rather, they (like the SSCI Report) have used code names to refer to the locations where Zubaydah was held. Finally, although at least one former Polish government official has stated that Poland cooperated with the CIA, to our knowledge, the Polish government itself has never confirmed such allegations. In 2010, lawyers representing Zubaydah filed a criminal complaint in Poland asking prosecutors there to hold accountable any Polish nationals who were involved in his alleged mistreatment in that country. Invoking a Mutual Legal Assistance Treaty, the Polish prosecutors asked American authorities for information. The United States Department of Justice refused their request on the ground that providing the information would adversely affect our national security. … In 2015, the European Court of Human Rights considered the matter. It concluded that the CIA had held and tortured Zubaydah at a site located in Poland. It also stated that Poland had failed adequately to investigate the human rights violations that the court believed had occurred on Polish soil. In response, the Polish prosecutors reopened their investigation. They again requested information from the United States under the Mutual Legal Assistance Treaty, and the United States again denied their requests. Soon afterward, Zubaydah (and his lawyer) filed the ex parte 28 U. S. C. §1782 discovery application now before us. Section 1782 says that a district court may order a person in its district to provide testimony or documents “for use in a proceeding in a foreign . . . tribunal, including criminal investigations conducted before formal accusation.” Zubaydah asked for permission to serve the contractors, Mitchell and Jessen, with subpoenas commanding them to appear for depositions and to produce “documents, memoranda and correspondence” regarding an alleged CIA detention facility in Poland and Zubaydah’s treatment there. [The US intervened, invoked state secrets privilege, and finally at the Ninth Circuit won except for information the 9th Circuit thought was publicly available:] “the fact that the CIA operated a detention facility in Poland in the early 2000s; information about the use of interrogation techniques and conditions of confinement in that detention facility; and details of Abu Zubaydah’s treatment there.” … The state secrets privilege permits the Government to prevent disclosure of information when that disclosure would harm national security interests. To assert the privilege, the Government must submit to the court a “formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” “The court itself must determine whether the circumstances are appropriate for the claim of privilege.” … Although the court itself must assess the sufficiency of the Government’s privilege claim, “the showing of necessity which is made,” by the party seeking disclosure of the ostensibly privileged information, “will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.” “Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted.” In contrast, “where necessity is dubious, a formal claim of privilege,” demonstrating “a reasonable possibility” of harm to national security, “will have to prevail.” And in all events, “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” … An important factor in our analysis of that narrow issue is the specific language of Zubaydah’s discovery requests and the Ninth Circuit’s opinion, which both make it clear that any response Mitchell and Jessen give to Zubaydah’s subpoenas would tend to confirm (or deny) the existence of a CIA detention site in Poland. As we have said, 12 of Zubaydah’s 13 document requests contain the word “Poland” or “Polish.”…The problem is confirmed by the Ninth Circuit’s opinion, which allowed continued discovery into three topics: the existence of a CIA detention facility in Poland, the conditions of confinement and interrogation at that facility, and Zubaydah’s treatment at that location. … Because any response to Zubaydah’s subpoenas allowed by the Ninth Circuit’s decision will have the effect of confirmation or denial (by the Government or its former contractors) of the existence of a CIA facility in Poland, the primary question for us must be whether the existence (or non-existence) of a CIA detention facility in Poland falls within the scope of the state secrets privilege. For the reasons that follow, we conclude that it does. We agree with the Government that sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege. The Government here has provided a reasonable explanation of why Mitchell and Jessen’s confirmation or denial of the information Zubaydah seeks could significantly harm national security interests, even if that information has already been made public through unofficial sources. The CIA Director stated in his declaration that the Agency’s counterterrorism efforts rely on “clandestine” relationships with foreign intelligence services. The Director explained that foreign intelligence services “are a critical intelligence source,” whose help is “vital to our world-wide efforts to collect intelligence and thwart terrorist attacks.” Ibid. He further explained that these “sensitive” relationships with other nations are “based on mutual trust that the classified existence and nature of the relationship will not be disclosed.” … JUSTICE GORSUCH believes that the Government has failed to meet its “burden of showing that a ‘reasonable danger’ of harm to national security would follow from sharing the information sought.” In his view, the Director’s declaration is insufficient to demonstrate “that requiring the government to acknowledge [that the CIA did or did not operate a detention facility in Poland in the early 2000s] would invite a reasonable danger of additional harm to national security.” We disagree. It stands to reason that a former CIA insider’s confirmation of confidential cooperation between the CIA and a foreign intelligence service could damage the CIA’s clandestine relationships with foreign authorities. Confirmation by such an insider is different in kind from speculation in the press or even by foreign courts because it leaves virtually no doubt as to the veracity of the information that has been confirmed. Nor, as JUSTICE GORSUCH believes, do we reach this conclusion by incorrectly placing the burden on Zubaydah to disprove the Government’s assertion of harm. To the contrary, we agree with JUSTICE GORSUCH that the Government bears the burden of showing that the privilege should apply—we simply disagree with his conclusion that it failed to meet that burden here. In our view, the Director’s declaration adequately establishes “that there is a reasonable danger that compulsion of the evidence [at issue] will expose . . . matters which, in the interest of national security, should not be divulged.”And we have found nothing in the evidentiary record that casts doubt on our conclusion that the Government has met its burden here. [Skipping over Part II-B-2, which isn’t part of the Court’s opinion, but in which the United States cites to Freedom of Information Act cases that support the privilege. Breyer is an admin law guy and likes agencies.] The Court of Appeals also believed that, because Mitchell and Jessen are “private parties,” their “disclosures [were] not equivalent to the United States confirming or denying anything.” We do not agree with this conclusion. Mitchell and Jessen worked directly for the CIA as contractors. Zubaydah contends (without contradiction) that Mitchell and Jessen “devised and implemented” the CIA’s enhanced-interrogation program and that they personally interrogated Zubaydah. Given Mitchell and Jessen’s central role in the relevant events, we believe that their confirmation (or denial) of the information Zubaydah seeks would be tantamount to a disclosure from the CIA itself. Indeed, the CIA Director’s Declaration describes the harm that would result from Mitchell and Jessen responding to the subpoenas, not the risks of a response from the CIA (or any other CIA official or employee). At the same time, Zubaydah’s need is not great. At oral argument Zubaydah suggested that he did not seek confirmation of the detention site’s Polish location so much as he sought information about what had happened there. For these reasons, we conclude that in this case the state secrets privilege applies to the existence (or nonexistence) of a CIA facility in Poland. It therefore precludes further discovery into all three categories of information the Ninth Circuit concluded to be nonprivileged because, as we have explained, such discovery will inevitably confirm or deny the existence of such a facility. [Skipping over Part III, which isn’t part of the Court’s opinion, but in which Breyer answers Kagan and Gorsuch’s opinion that the case should be remanded for further proceedings and disagrees.] We reverse the judgment of the Ninth Circuit and remand the case with instructions to dismiss Zubaydah’s current application for discovery under §1782. It is so ordered. Lineup: Breyer, joined by Roberts in full, joined by Kavanaugh and Barrett as to all but Part II-B-2, joined by Kagan as to all but Parts III and IV and the judgment, and Thomas and Alito as to Part IV only. Breyer’s Part II-B-2 and III are not part of the opinion of the Court (Breyer + Roberts + Kavanaugh + Barrett + Kagan for Parts I, II other than II-B-2; Breyer + Roberts + Kavanaugh + Barrett [only 4] for Part III; Breyer + Roberts + Kavanaugh + Barrett + Thomas + Alito for Part IV (which includes the judgment). Concurrence (effectively) by Breyer (Parts II-B-2 and III). Concurrence in part and concurrence in the judgment by Thomas, joined by Alito. Concurrence in part by Kavanaugh, joined by Barrett. Concurrence in part and dissent in part by Kagan. Dissent by Gorsuch, joined by Sotomayor. Concurrence (effectively) by Breyer, joined by Roberts and Kagan (Part II-B-2) Additionally, the Government cites legal authority from the separate but roughly analogous Freedom of Information Act (FOIA) context, which supports our conclusion that the CIA’s concerns warrant application of the state secrets privilege. The FOIA contains exemptions that permit an agency to withhold Government records that a member of the public has requested and which the agency would otherwise have to disclose. But the exemptions do not apply (and the agency must make the information available) if the information has already become public, provided that it has been “officially acknowledged” by the agency from which the information is sought.…If the agency has not officially acknowledged the information[] then it may withhold the information (under an applicable exemption) despite the fact that the information has become public. To be clear, the FOIA doctrine is only an (imperfect) analogy, and nothing in this opinion should be taken to suggest that the waiver standards in that area apply directly to the state secrets privilege. However, the principles underlying the FOIA rule provide at least some support for the Government’s position here. Lower courts have explained that the official acknowledgement doctrine recognizes the reality that official confirmation of sensitive information may pose risks that unofficial disclosure does not. “It is one thing for a reporter or author to speculate or guess that a thing may be so or even, quoting undisclosed sources, to say that it is so; it is quite another thing for one in a position to know of it officially to say that it is so.” Concurrence (effectively) by Breyer, joined by Roberts, Kavanaugh, and Barrett (Part III) While JUSTICE KAGAN and JUSTICE GORSUCH would send the case back for additional proceedings, we believe that it must be dismissed. Although application of the state secrets privilege does not always require dismissal, we are unpersuaded that the litigation at issue here, founded upon the specific document requests set forth in the Appendix, can survive the Government’s successful privilege claim. JUSTICE GORSUCH first suggests that we should remand for the District Court to conduct “in camera review of any evidence the government might wish to present to substantiate its privilege claim.”...First, for the reasons explained above, the CIA Director’s affidavit, together with the lack of contrary evidence, is sufficient to “satisfy [us] . . . that there is a reasonable danger that compulsion of the [privileged] evidence will expose . . . matters which, in the interest of national security, should not be divulged.” Second, the necessity of additional judicial probing depends, as we have explained, on Zubaydah’s need for the information he seeks. We have explained that much of that information is already publicly available from other sources. The public availability of information concerning Zubaydah’s treatment diminishes his need for the discovery he seeks from Mitchell and Jessen, and thus for further judicial probing of the Government’s privilege claim. … Alternatively, both JUSTICE KAGAN and JUSTICE GORSUCH suggest that even if “the existence [or nonexistence] of a detention site in Poland really does qualify as a state secret,” we should nonetheless remand so that discovery may continue on a different topic: Zubaydah’s treatment from “December 2002 through September 2003 and without reference to geography.” … The nature of this case (an exclusively discovery-related proceeding aimed at producing evidence for use by Polish criminal investigators) and the specific discovery requests before us convince us that these techniques would not be effective here. In particular, as we have already explained, both the subpoena’s language and the Ninth Circuit’s decision are such that any response to Zubaydah’s discovery requests would inevitably tend to confirm or deny whether the CIA operated a detention site located in Poland. Concurrence in part and concurrence in the judgment (Thomas, joined by Alito) Under United States v. Reynolds, 345 U. S. 1 (1953), a court evaluates the Government’s assertion of the state-secrets privilege based on “the showing of necessity . . . made” by the party requesting discovery. If the party makes only “a dubious showing of necessity,” the claim of privilege “will have to prevail” without judicial scrutiny into the Government’s basis for the claim. If the party makes “a strong showing of necessity,” however, immediate dismissal of the discovery request is not required. A court may then ask whether there is a “reasonable danger” that “military secrets are at stake.” In answering that question, the court must afford “the utmost deference” to the Executive’s national-security assessment. “[I]f the court is ultimately satisfied that military secrets are at stake,” “even the most compelling necessity cannot overcome the claim of privilege.”. The Court acknowledges that Abu Zubaydah’s need for discovery from two CIA contractors is “not great,” but it declines to dismiss Zubaydah’s discovery application on that basis. Rather, the Court concludes that the Government “has provided a reasonable explanation” why Zubaydah’s proposed discovery “could significantly harm national security interests.” In my view, Zubaydah’s “dubious” need for the discovery he seeks requires dismissal of his discovery application, regardless of the Government’s reasons for invoking the state-secrets privilege. I, therefore, join only Part IV of the Court’s opinion. Abu Zubaydah is a terrorist [and much more in this vein.] Reynolds prescribed a two-step framework instructing courts “how far [they] should probe in satisfying [themselves] that the occasion for invoking the privilege is appropriate.” First, courts must assess the requesting party’s need for the Government’s privileged material. If the party’s need is “dubious,” a formal claim of privilege “will have to prevail” without judicial inquiry into the basis for the Government’s claim. A party has a dubious need unless it can show that the proposed discovery is “immediately and essentially applicable” to the party’s case. … Second, if a party has made a “strong showing of necessity,” immediate dismissal of the discovery request is not required. The court may then ask whether there is a “reasonable danger” that “military secrets are at stake.” When answering that question, in camera review is not “automati[c],” but rather “a last resort”. And, in all cases, the court must afford the “utmost deference” to the Executive’s assessment of national-security threats. … In this case, the Court inverts the Reynolds test so that courts first ask whether the Government “has offered a valid reason for invoking the privilege,” and then ask whether the requesting party has demonstrated sufficient need for the discovery. … Unfortunately, by invoking need as Reynolds’ second step, with a cryptic instruction to “probe” the Government’s reasons yet more “deeply,” the Court twice puts the Nation’s security at risk. First, any judicial inquiry more searching than the Court’s analysis here likely will lead to in camera review whenever the requesting party demonstrates adequate need. Because the Court already dissects the CIA Director’s declaration, it is unclear how else the Government could support its privilege claim other than by disclosing evidence in camera….Second, the Court’s inverted Reynolds test undermines the “utmost deference” owed to the Executive’s national-security judgments. … JUSTICE KAVANAUGH joins the Court’s opinion but would reframe its test. Rather than invert Reynolds’ two-step approach, he maintains that the Government’s assertion of privilege should prompt a “threshold judicial inquiry” in which a court asks whether “the ‘circumstances indicat[e] a reasonable possibility’ that state secrets are involved.”JUSTICE KAVANAUGH fails to describe what this analysis entails, other than to characterize it as “not demanding” and the result as “typically self-evident.” But his Reynolds step 0 cannot be meaningfully different from the Court’s upfront demand for reason giving. … Finally, JUSTICE GORSUCH would dispense with Reynolds and instruct judges to evaluate de novo the Government’s invocation of the state-secrets privilege. He does not say “de novo,” but his analysis makes the point clear. … JUSTICE GORSUCH offers three arguments to support de novo judicial review of a state-secrets claim, none of which has merit. First, he asserts that “courts generally must respect . . . the ancient rule that the public enjoys a right to ‘every man’s evidence.’” But whatever “right” there may be to civil discovery generally, there is no “right” to state secrets specifically. … Second, JUSTICE GORSUCH posits that “because Congress has expressly authorized the Judiciary to entertain this suit” by enacting §1782, “it follows that we may not reflexively defer to the Executive’s wish to see it dismissed.”...Section 1782(a) provides: “A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” Thus, far from inviting de novo review, Congress instructed federal courts to apply all privileges—including the state-secrets privilege—with full force. … Third, JUSTICE GORSUCH invokes Chief Justice Marshall’s two opinions in the Burr prosecution, but both cut decisively against him….[Marshall’s] analysis tracks Reynolds’ first step: The Government invokes the state-secrets privilege, and the privilege will prevail unless the requesting party makes the requisite showing of need. Thus, JUSTICE GORSUCH is simply incorrect that “Chief Justice Marshall nowhere suggested that the state secrets privilege should apply in this country without . . . a statement” of reasons to support the privilege. … I would hold that Abu Zubaydah has demonstrated only “a dubious showing of necessity” for the discovery he seeks in this case. For that reason alone, dismissal of Zubaydah’s discovery application is required. I, therefore, join only Part IV of the Court’s opinion. Concurrence in part (Kavanaugh, joined by Barrett) I join all but Part II–B–2 of the Court’s opinion. I add this brief concurrence simply to be clear about my understanding of how the “formula of compromise” articulated in Reynolds works in practice. For the state secrets privilege to apply, the relevant government agency head must first assert the privilege. The court must then determine that the “circumstances indicat[e] a reasonable possibility” that state secrets are involved. That threshold judicial inquiry is not demanding because, as our precedent and this case illustrate, those circumstances are typically self-evident when the Executive Branch asserts the state secrets privilege. At that point, the court must accept the Executive Branch’s assertion of privilege without further inquiry if the requester has shown only a “dubious” need for the requested information. In many state secrets disputes, the case ends there—again, this case proves the point. If the requester has demonstrated a “strong” need for the information, the court may under certain circumstances review the requested documents in camera to confirm that the information falls within the privilege. … In all events, once the court determines that the requested information falls within the state secrets privilege, “even the most compelling necessity” cannot overcome the privilege. The privilege is absolute, not qualified. In state secrets cases, a court’s review from start to finish must be deferential to the Executive Branch. As this Court has long explained, the courts “have traditionally shown the utmost deference to Presidential responsibilities” in cases involving “military or diplomatic secrets,” and “have been reluctant to intrude upon the authority of the Executive in military and national security affairs”. With that understanding of Reynolds, I join all but Part II–B–2 of the Court’s opinion. Concurrence in part and dissent in part (Kagan) Both sides have substantial interests in this case—the Government in safeguarding its relationships with foreign intelligence partners; Abu Zubaydah in obtaining information needed to right past wrongs. Sometimes, interests of that kind are wholly irreconcilable, and the state secrets privilege may then put an end to the suit. But that is not so here. The Government’s national-security concerns all relate to confirming the location of detention sites. Zubaydah requests evidence of a broader scope, concerning not just where he was detained, but also what happened there. The District Court, using established methods, can segregate the two kinds of evidence—protecting classified information about location while giving Zubaydah access to unclassified information about detention conditions and interrogation methods. I would remand the case to allow that process to go forward. So although I join the Court in much of its analysis, I respectfully dissent from its decision to dismiss this suit. Start with where I join the Court: I agree the Government has met its burden of showing that testimony by former CIA contractors confirming the location of Zubaydah’s detention would pose a “reasonable danger” of harm to national security. … But that does not mean, as the Court insists, that we should dismiss Zubaydah’s suit. From the beginning of this litigation, Zubaydah has distinguished between the “where” and the “what”—the location of the detention site at issue and the treatment he received there. And in this Court, his attorney made clear that Zubaydah’s primary interest is in obtaining information on the latter subject. He wants the CIA contractors to testify about “what happened inside [his] cell” during a particular 10-month period, irrespective of where that cell may have been. … That kind of segregation has happened before, showing what could be done in this case. … In short, the holding that national-security risks attach to confirming the location of Zubaydah’s detention—with which I agree—should not end this case. A court can segregate that classified information from unclassified material about the nature of Zubaydah’s detention. I would remand the case for that to occur, thus protecting not only the United States’s security interests but also Zubaydah’s interest in forcing disclosure of government abuse. Dissent (Gorsuch, joined by Sotomayor) There comes a point where we should not be ignorant as judges of what we know to be true as citizens. This case takes us well past that point. Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the Court acquiesces in that request. Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret. Start with what the government itself has said about Zubaydah. In 2014, a Select Committee of the United States Senate published a 683-page report about the CIA’s detention and interrogation practices. The report did not focus on Zubaydah alone, but it included certain details about his treatment, including the following. After his capture in Pakistan in March 2002, the government transported him to a “black site” known as Detention Site Green. At that time, CIA officials thought Zubaydah might have been the “third or fourth man” in al Qaeda and withholding information about the September 11 attacks and potential future assaults. In an effort to extract that information, the CIA hired two contractors, James Mitchell and John Jessen, and authorized them to employ what it called “enhanced interrogation techniques.” Mitchell and Jessen worked “on a near 24-hour-per-day basis” starting August 4, 2002. They waterboarded Zubaydah at least 80 times, simulated live burials in coffins for hundreds of hours, and performed rectal exams designed to establish “total control over the detainee.” Six days into his ordeal, Zubaydah was sobbing, twitching, and hyperventilating. During one waterboarding session, Zubaydah became “completely unresponsive, with bubbles rising through his open, full mouth.” He became so compliant that he would prepare for waterboarding at the snap of a finger. By this point, Mitchell and Jessen concluded that it was “‘highly unlikely’ that Zubaydah possessed the information they were seeking,” and they sought to end the interrogations. It seems their assessment may have been correct. Although Zubaydah’s relationship with al Qaeda remains the subject of debate today, the authors of the Senate Report found that the CIA’s records “do not support” the suggestion that he was involved in the September 11 attacks. At the time, however, CIA headquarters was not yet persuaded by Mitchell’s and Jessen’s report. It instructed the pair to continue their work. Following these directions, Mitchell and Jessen carried on for two more weeks until their superiors finally concluded that Zubaydah “did not possess any new terrorist threat information.” In December 2002, the government moved Zubaydah to another black site, this one known as Detention Site Blue. After a stay there and, it seems, years of further transfers among other black sites, Zubaydah was transferred to the government’s detention center in Guantánamo Bay in 2006. More than 15 years later, he remains there still. The Senate Report is only the start of what we know. As far back as 2007, the Council of Europe issued a lengthy report finding that the CIA held Zubaydah at a black site in Poland after his capture. … We know even more from Mitchell and Jessen themselves. The pair have spoken and written extensively— without governmental objection—about their activities. In 2016, the CIA permitted Mitchell to publish a book. Enhanced Interrogation is available on Amazon from $13.99, where it is touted as “lift[ing] the curtain” on the CIA’s interrogation program, including “its methods, and its downfall.” … Dissatisfied with its partial victory before the Ninth Circuit, the government seeks further relief in this Court. But as it comes to us, the parties’ dispute is limited. Zubaydah does not appeal the Ninth Circuit’s decision. So while the majority (repeatedly) emphasizes the breadth of his initial discovery requests, that is beside the point. No one argues that Zubaydah may pursue the third category of information he initially sought—including the identities and roles of foreign individuals involved with the detention facility. Even when it comes to the two remaining categories of information at issue—the location of the government’s detention site and the CIA’s treatment of Zubaydah there—the parties’ dispute has narrowed substantially. The District Court found that the site’s location did not implicate a state secret, and the Court of Appeals agreed. The government asserts this decision was mistaken, while Zubaydah’s lawyers defend it. But, as they have throughout the litigation, Zubaydah’s lawyers also offer an alternative. Before the District Court, they stressed that “[v]aluable discovery” could proceed into Zubaydah’s interrogations, treatment, and conditions of confinement without requiring Mitchell and Jessen to confirm “the location of any particular site or the cooperation” of foreign nationals. Before this Court, they stress the same point. As it arrives before us, then, the central question in this case concerns the request for information about “what happened inside Abu Zubaydah’s cell between December 2002 and September 2003.” It is this information—about Zubaydah’s interrogation, treatment, and conditions of confinement at the hands of the CIA—that Zubaydah’s lawyers say they need most. Nor does anyone suggest this request implicates a state secret. The government does not (and cannot) claim that its custody of Zubaydah at a black site remains a state secret: That much was declassified and documented in the Senate Report years ago.The government has conceded, too, that the interrogation techniques Mitchell and Jessen employed and Zubaydah’s conditions of confinement and treatment within his cell during that period are “no longer classified.” At a minimum, Zubaydah’s lawyers argue, all this means he should be allowed discovery from Mitchell and Jessen about his interrogations, treatment, and conditions of confinement from December 2002 until September 2003, with safeguards to protect against the disclosure of the site’s location and the involvement of foreign nationals. … Accepting that independent judgment is required of us in cases like this one, how exactly should we proceed? If the government’s “utmost deference” test is not appropriate, what rules are? Our precedents offer a number of lessons. First, Reynolds held that, when the Executive seeks to withhold evidence from a congressionally authorized judicial proceeding, it must show a “reasonable danger” of harm to national security would follow otherwise. To be sure, most parties who seek to invoke an evidentiary privilege bear the burden of showing their entitlement to do so by a preponderance of proof. And here the government’s burden is a good deal more forgiving. But I can also see why. The line Reynolds drew seeks to accommodate the separation of powers: It ensures that a congressional mandate to entertain a case or controversy will not be automatically frustrated. It guarantees a degree of independent judicial review. Yet it also seeks to respect the Executive’s specially assigned constitutional responsibilities in the field of foreign affairs and the delicate and complex predictive judgments the Executive often must make there. Second, when assessing a state secrets claim courts may—and often should—review the evidence supporting the government’s claim of privilege in camera. Reynolds said that “[w]hen” the government can show a reasonable danger of harm exists by means of a declaration, a “court should not . . . insis[t] upon an examination of the evidence, even by the judge alone, in chambers.” But at the same time, the Court also stressed that, before excluding evidence, a judge “must be satisfied” that a reasonable danger of harm would flow from its production— and that this is a responsibility no court may “abdicat[e].” From this, it follows that in cases of doubt more careful scrutiny is required before a court may uphold a claim of privilege. It is at this point, too, where the magnitude of a party’s need for the requested evidence may become relevant. Reynolds explained that the extent of a party’s need for the government’s evidence can inform “how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.” … Third, the state secrets privilege protects the government from the duty to supply certain evidence, but it does not prevent a litigant from insisting that the government produce nonprivileged evidence in its possession. Nor does the privilege preclude a litigant from pursuing its case otherwise. As our cases explain, the trial simply “goes on” without the government’s privileged proof. [But this case is only to get this proof, so there’s nothing left absent the discovery requests.] … Fourth, after the government properly invokes the privilege, a court may still be able to explore options to make the government’s evidence available to litigants in some form as long as it fully respects the government’s national security interests. … The majority does not dispute that the principles set out in Part II should guide the resolution of any state secrets dispute. See ante, at 8–9. Instead, the majority insists that the only disagreement between us concerns “how th[e]se principles should apply to the specific discovery requests Zubaydah has made in this litigation.” Ibid. Recall that the Ninth Circuit permitted discovery on just two things: (1) the location of the CIA’s detention site, and (2) details about Zubaydah’s interrogation by the CIA, his treatment, and his conditions of confinement. Start with the first of these. The Executive seeks to withhold evidence about the location of its detention site from a congressionally authorized judicial proceeding. To do so, it bears the burden of showing that a “reasonable danger” of harm to national security would follow from sharing the information sought. … The record before us is stark. Zubaydah’s detention in Poland took place 20 years ago. The location of the CIA’s detention site has been acknowledged by the former Polish President, investigated by the Council of Europe, and proven “beyond reasonable doubt” to the European Court of Human Rights. Doubtless, these disclosures may have done damage to national security interests. But nothing in the record of this case suggests that requiring the government to acknowledge what the world already knows to be true would invite a reasonable danger of additional harm to national security. The government’s only evidence is a declaration couched in conclusory terms, which the District Court found unpersuasive. … Even the majority seems uncomfortable with the government’s declaration. The best the majority can say is this: The location of a CIA detention site in Poland qualifies as a “state secret” because “we have found nothing in the evidentiary record that casts doubt” on the declaration’s conclusory assertion that national security harms could follow from acknowledging its existence. But notice how this effectively reverses the burden of proof. The majority starts with the government’s conclusory assertion— and then proceeds to place on Zubaydah the burden of disproving it. A bare expression of national security concern becomes reason enough to deny the ancient right to every man’s evidence. This may be a nice move, but it is unpersuasive. … Looking past these problems only serves to expose another and maybe more fundamental one. Assume now with the government that confirming the existence of a detention site in Poland really does qualify as a state secret. Put aside that part of the Ninth Circuit’s decision allowing discovery to proceed on that question. What about the Court of Appeals’ separate holding that Zubaydah is entitled to discovery about his interrogation, treatment, and conditions of confinement? Recall that Zubaydah’s lawyers have long maintained that, at a minimum, they should be allowed to ask about those matters within the date range of December 2002 through September 2003 and without reference to geography or Polish personnel. Recall, too, that even the government has conceded that “the enhanced interrogation techniques employed with respect to specific detainees in the program, and their conditions of confinement, are no longer classified.” Normally, a statutorily authorized case must continue without the government’s privileged proof. Why should this case be different and face dismissal at its outset? A plurality of the Court answers with a worry. … Unable to explain how the government would be harmed by allowing this litigation to continue, the plurality seeks to flip the script. Now, it contends that “much of [the] information” Zubaydah seeks “is already publicly available from other sources,” so “further judicial probing of the Government’s privilege claim” is unwarranted. … Ultimately, the plurality is forced to give ground. While it insists that “any” response to Zubaydah’s current requests “would inevitably tend to confirm or deny whether the CIA operated a detention site located in Poland,” it goes out of its way to note that “a different discovery request filed by Zubaydah might avoid the problems” the plurality believes exist here. In other words, it seems that Zubaydah remains free to file a new lawsuit seeking information about his interrogation, treatment, and conditions of confinement as long as he does not ask for location information where his “need is not great.” But what is the point of forcing Zubaydah to file a new lawsuit? … In the end, only one argument for dismissing this case at its outset begins to make sense. It has nothing to do with speculation that government agents might accidentally blurt out the word “Poland.” It has nothing to do with the fiction that Zubaydah is free to testify about his experiences as he wishes. It has nothing to do with fears about courts being unable to apply familiar tools to disaggregate discovery regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision. https://www.supremecourt.gov/opinions/21pdf/20-827_new_e29f.pdf
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Mar 9, 2022 19:39
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Breyer continues to be pretty poo poo for a "liberal", I'm glad he's going. And Gorsuch continues to have a surprising side when it comes to government assholery.
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Mar 9, 2022 20:24
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Slaan posted:Breyer continues to be pretty poo poo for a "liberal", I'm glad he's going. And Gorsuch continues to have a surprising side when it comes to government assholery. Hopefully his replacement didn't pick up that habit while clerking for him.
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Mar 9, 2022 20:37
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Slaan posted:And Gorsuch continues to have a surprising side when it comes to government assholery. Gorsuch is interesting because he's absolutely an ideologue but I think the Republicans mistook what sort of ideologue he is.
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Mar 9, 2022 21:20
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fool of sound posted:Gorsuch is interesting because he's absolutely an ideologue but I think the Republicans mistook what sort of ideologue he is. I feel like they keep finding people who they imagine are empty suit ghouls who believe in nothing like themselves and then are shocked when they find someone who actually believes the BS they've spent decades promoting.
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Mar 9, 2022 21:23
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Yeah, Gorsuch absolutely seems to believe in the Private Organizations Are Always Right and Government Action Bad libertarian orthodoxy. Not just for the cynical profit maximizing reasons business guys do
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Mar 9, 2022 21:32
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I'm a bit confused by the copyright case. Since copyright protection is automatic and registration is just a technical step required to bring suit, wouldn't the whole question by mooted by simply resubmitting the proper registration? Or would the suit need to be completely re-filed if the registration was invalid?
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Mar 9, 2022 22:56
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Stickman posted:I'm a bit confused by the copyright case. Since copyright protection is automatic and registration is just a technical step required to bring suit, wouldn't the whole question by mooted by simply resubmitting the proper registration? Or would the suit need to be completely re-filed if the registration was invalid? You’d have to refile - the relevant statutory provision bars instituting a civil action unless registration (or pre-registration) has occurred. The real issue that the dispute is about (which is mostly unaddressed in the opinion) is that you can’t get statutory damages or attorneys fees for pre-registration infringement.
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Mar 9, 2022 23:09
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Kalman posted:You’d have to refile - the relevant statutory provision bars instituting a civil action unless registration (or pre-registration) has occurred. Yikes, I didn't realize that. What a giant kick in the balls for private individuals or small companies. E: I suppose it's not exactly unexpected from US IP law.
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Mar 9, 2022 23:15
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Eh. I think it’s good, given that everything is copyrighted, not to permit windfall damages for infringement when the work isn’t registered. You can still obtain damages, you just have to prove that you were actually harmed. (Of course I’m deeply skeptical of the value of IP as a whole, so.)
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Mar 9, 2022 23:31
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Kalman posted:(Of course I’m deeply skeptical of the value of IP as a whole, so.) The increased population and communication - some combination of a million more monkeys on a million more keyboards and us all standing on the shoulders of a lot more giants now - has significantly shifted the positive benefits of society for the “limited monopoly in exchange for invention/creation” exchange. The realization of the negative effects of monopoly (antitrust, such as it is) has only shown how much more needs to be received in exchange for a limited monopoly. In conclusion, IP that isn’t trademark (consumer warning function) or trade secrets (no worries about independent recreation) is a net drag on society/can eat a dick.
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Mar 10, 2022 05:35
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fool of sound posted:Gorsuch is interesting because he's absolutely an ideologue but I think the Republicans mistook what sort of ideologue he is. Them throwing a shitfit when Gorsuch actually properly applied textualism in Bostock was really funny.
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Mar 10, 2022 17:15
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