Supreme Court Wrestles with State-Secrets Privilege in Zubaydah Case

A woman walks past the Supreme Court building in Washington, D.C., May 17, 2021. (Jonathan Ernst/Reuters) The best course here is for the Court to just decide the case that has been presented, rather than explore ways not to decide it.

In a column last week, I noted that the so-called War on Terror was back in the Supreme Court after a long hiatus. The more interesting aspect of the oral argument United States v. Zubaydah, to my mind, was Justice Kavanaugh’s, in effect, calling the Biden administration on the president’s false claim to have ended the “Forever War”: Buzzed by the justice, DOJ’s acting solicitor general Brian Fletcher conceded the administration’s position that the war is still going on — which it must be if, for example, the administration’s continuing detention of enemy combatants and attacks on al-Qaeda targets is to be legally valid.

But the underlying case is also interesting, and I said I’d address it in a separate post.

Abu Zubaydah (the nom de jihad of Zayn al-Abidin Muhammad Husayn) was a high-ranking aide to al-Qaeda emir Osama bin Laden. He is believed to have been complicit in the 9/11 plot, among

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