A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: ten cases, ten minutes. On the docket this week was state secrets at SCOTUS, capital punishment at SCOTUS, abortion at SCOTUS, the U.S. Navy, the IRS, and a local judge in Massachusetts.
1. SCOTUS denies Guantanamo detainee’s request for information about CIA black site.
Abu Zubaydah was arrested in Pakistan in 2002. U.S. officials suspected Mr. Zubaydah was a high value al Qaeda operative and transferred him to a CIA “black site”. Mr. Zubaydah (and publicly available sources) says the site is in Poland; the CIA gives a Glomar response. Mr. Zubaydah says CIA contractors tortured him there; the CIA says the proper term is “enhanced interrogation,” and it can neither confirm nor deny that such interrogation took place. As part of human rights litigation in Poland, Mr. Zubaydah subpoenaed the CIA contractors for records about the location of the black site and what happened to him there. The federal government intervened. It argued the information he seeks is a state secret and so cannot be declassified or released.
Justice Breyer (for a 6:1:2 majority): We agree with the government. Confirmation that the black site is (or is not) in Poland would undermine the CIA’s overseas, clandestine partnerships and our national security. And if the CIA need not disclose the location of the black site, it follows that the CIA need not disclose what happened there. Mr. Zubaydah’s motion is dismissed.
Justice Thomas (with Justice Alito, concurring): I agree we must dismiss Mr. Zubaydah’s motion, but for different reasons than the majority.
Justice Kavanaugh (with Justice Barrett, concurring): I agree with dismissal on the majority’s reasoning, and I have some thoughts about the scope of the state secrets privilege.
Justice Kagan (concurring/dissenting in part): I agree the state secrets privilege applies to the location of the black site, but that doesn’t mean it applies to what happened at the black site. Mr. Zubaydah may be entitled to records about the latter, so we should remand, not dismiss.
Justice Gorsuch (with Justice Sotomayor, dissenting): “There comes a point where we should not be ignorant as judges of what we know to be true as citizens.” The majority is wrong to dismiss any part of Mr. Zubaydah’s motion because the information he seeks is no longer secret.
2. SCOTUS reimposes death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.
Dzhokhar Tsarnaev was sentenced to death for his role as one of the 2013 Boston Marathon bombers. In 2020, however, the First Circuit Court of Appeals threw out his death sentence. It reasoned that the trial court erred during the jury selection and sentencing phases of Mr. Tsarnaev’s trial. The federal government appealed.
Justice Thomas (for a 6:3 majority): The First Circuit was wrong to overturn Mr. Tsarnaev’s sentence. Neither of the trial court’s alleged errors resulted in an unfair trial for Mr. Tsarnaev. Thus, we reinstate his death sentence.
Justice Barrett (with Justice Gorsuch, concurring): I agree, and I’ll add that I question whether appeals courts can tell trial courts how to conduct voir dire.
Justice Breyer (with Justices Sotomayor and Kagan in part, dissenting): The First Circuit got it right on the sentencing phase bit. So, we should remand for resentencing.
3. SCOTUS allows Kentucky attorney general to intervene, defend Kentucky abortion law.
In 2018 Kentucky outlawed an abortion procedure known as “dilation and evacuation” after eleven weeks of pregnancy (with exceptions for medical emergencies). EMW Women’s Surgical Center, an abortion clinic in Louisville, sued to invalidate the law. In 2020 the Sixth Circuit Court of Appeals held that the law is unconstitutional. Kentucky’s health secretary, Eric Friedlander (a Democrat), who had been defending the law, declined to appeal. But Kentucky’s attorney general, Daniel Cameron (a Republican), sought to intervene to defend the law on appeal. Can he do that?
Justice Alito (for an 8:1 majority): Yes. A state, through its attorney general, has a strong interest in continued enforcement of its own laws. And the Kentucky AG’s interests here outweigh any interest EMW says it has in blocking intervention.
Justice Thomas (concurring): I agree; here’s another reason why EMW’s argument fails.
Justice Kagan (with Justice Breyer, concurring in judgment): I agree the Kentucky AG may intervene, but for different reasons than the majority.
Justice Sotomayor (dissenting): An agreement the parties struck earlier in the litigation bars the Kentucky AG’s intervention. Plus, “I fear [the majority’s] decision will open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties . . . upsetting the settled expectations of courts, litigants, and the public alike.”
4. FISA surveillance at SCOTUS.
Three Muslim residents in California claim that the federal government surveilled them, that it did so simply because they are Muslim, and therefore such surveillance was illegal. Government: The state secrets privilege bars all their claims. Plaintiffs: No it doesn’t. This provision of the Foreign Intelligence Surveillance Act, which allows trial courts to review the legality of electronic surveillance, overrides the state secrets privilege.
Justice Alito (for a unanimous Court): The government is correct. The FISA provision doesn’t displace the privilege. However, this isn’t the end of the road for the plaintiffs; they make other arguments that lower courts have yet to address.
5. First Circuit denies interlocutory appeal of Massachusetts state judge accused of helping noncitizen escape custody.
On April 2, 2018, Shelly M. Richmond Joseph, a local Massachusetts judge, was presiding over the arraignment of an undocumented immigrant. The immigrant had been deported from the U.S. before and was subject to deportation again. Indeed, a federal immigration officer was waiting in the courthouse lobby to take the immigrant into federal custody. But Judge Joseph had other plans: She had her deputy usher the immigrant out the courthouse’s back exit, whereupon the immigrant fled. (Fans of Steven Spielberg’s Lincoln may recall the story of the Old Woman from Metamora.) Reactions, predictably, varied. Some called her act heroic, an example of righteous civil disobedience of which the Rev. Dr. King would be proud. Some—including the panel in this case—suggested the proper response would be a stern warning not to do it again. But Andrew Lelling, the then-U.S. Attorney for Massachusetts, decided the best thing to do is to charge Judge Joseph (and her deputy) with the federal crime of obstruction of justice.
Judge Joseph moved to dismiss the charges on several grounds. First Circuit panel: Judge Joseph’s motion is premature, but our decision has no bearing on the “merits of any charges or defenses in this apparently unprecedented proceeding.” (If you’re wondering what became of the immigrant, he was arrested a month later.)
6. Fifth Circuit won’t lift injunction against COVID-19 vaccination requirement for certain Navy personnel.
Last year the U.S. Navy, with the Pentagon’s go order, announced that all servicemembers must get vaccinated against COVID-19. 35 Navy servicemembers sued on religious grounds. They asked for a preliminary injunction, and a district court granted it as applied. Navy, on appeal: The injunction limits command’s ability to make “deployment, assignment, and other operation decisions.” Can we have a stay pending appeal? Fifth Circuit panel: Negative. For now, the Navy cannot discipline these 35 servicemembers because of their vaccination status. But the Navy’s case isn’t FUBAR yet; the merits are still being decided.
7. Twitter, the Texas attorney general, and ripeness walk into the Ninth Circuit.
Twitter banished former president Donald Trump shortly after the events of January 6, 2021. In response Ken Paxton, the Texas attorney general, served Twitter with a notice to explain how it decides to moderate what users say on its platform. Twitter: This notice and Mr. Paxton’s investigation violate the First Amendment. Ninth Circuit panel: We can’t decide that yet. Mr. Paxton is trying to conduct an investigation; he’s hasn’t pressed charges. So, Twitter’s appeal is prudentially unripe.
8. D.C. Circuit blocks removal of certain immigrants to countries in which they face persecution.
Can the Executive Branch bar certain immigrants from entering the United States during a public health emergency? D.C. Circuit panel: Yes. Can the Executive Branch deport immigrants who nevertheless try to enter? Panel: That follows. Where can the Executive Branch deport those immigrants? Panel: Several destinations, but under no circumstances can it deport an immigrant to a country in which the immigrant will be tortured or persecuted on account of their race, religion, nationality, or social or political opinions.
9. Sixth Circuit invalidates IRS rule on cash value life insurance policies.
In which a group of taxpayers challenged IRS Notice 2007-83, which requires taxpayers to report certain employee-benefit plans that include a cash value life insurance policy, a Sixth Circuit panel holds that the IRS didn’t turn square corners when it enacted the rule. APA violation = rule invalidation.
10. Fifth Circuit limns lesson on line-drawing re: interacting with police.
Where is the line between filming interactions with police (okay) and obstructing the actions of police (not okay)? Fifth Circuit panel: It’s short of standing within one or two feet of various on-duty officers, who are monitoring a loud crowd at 1:00am, and ignoring repeated requests over the course of several minutes to step back outside arm’s length. This is unwelcome news for one Antonio Buehler, a self-described police accountability activist, who was arrested for doing just that on famous Sixth Street in Austin, Texas.
Image credits: Kathleen T. Rhem, U.S. Department of Defense
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