Liza Goitein and Bob Loeb on State Secrets
The Lawfare Podcast
The Lawfare Institute
4.7 • 6.4K Ratings
🗓️ 18 October 2021
⏱️ 57 minutes
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Summary
It has been a decade since the Supreme Court decided on a case involving the state secrets privilege, a common law rule that allows the government to block the release of state secrets in civil litigation. In this term, the justices will hear two cases involving the privilege: United States v. Abu Zubaydah and Federal Bureau of Investigation v. Fazaga.
To talk about the two cases before the Supreme Court and the state secrets privilege more broadly, Rohini Kurup sat down with Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, and Bob Loeb, partner in Orrick, Herrington & Sutcliffe’s Supreme Court and Appellate Litigation practice, and former acting deputy director of the Civil Division Appellate Staff at the Department of Justice. They talked about how the state secrets privilege works, the controversy surrounding its use and what we can expect in the two Supreme Court cases.
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Transcript
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| 0:25.6 | no bull and the aftermath. |
| 0:32.6 | The fact that the court granted cert in these particular cases makes me think that the |
| 0:39.5 | court is inclined to issue a ruling that is very solicitous of the government's claimed |
| 0:46.5 | interests in the state's secrets cases. |
| 0:49.1 | And I say that because other cases in which lawsuits have been dismissed on state's |
| 0:54.7 | secrets ground or in which state's secrets claims have otherwise been of help have been |
| 0:59.1 | appealed to the Supreme Court and the Supreme Court has never granted cert in them. |
| 1:02.8 | So the fact that it granted cert with respect to two cases where in fact the ninth circuit |
| 1:08.8 | held that state's secrets either could not be applied at all or had been preempted by |
| 1:14.1 | statutory law or that the state's secrets privilege shouldn't result in the outright |
| 1:18.7 | dismissal of the case, that may suggest that the court is looking to push back on the |
| 1:23.7 | ninth circuit. |
| 1:24.7 | So I myself am worried that things are going to move in exactly the wrong direction |
| 1:28.3 | where it's going to become easier for courts to defer to claims of state's secrets privilege. |
| 1:33.9 | I'm Roeheni Karp and this is the LawFair podcast October 18th, 2021. |
| 1:39.0 | It's been a decade since the Supreme Court decided on a case involving the state's |
| 1:43.6 | secrets privilege, a common law rule that allows the government to block the release of |
| 1:47.6 | state's secrets and civil litigation. |
... |
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