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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: Can the government shield information under the state secrets privilege

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Speaker 1: even when the information is not a secret at all?

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Speaker 1: This week, the Supreme Court considered the case of Abu Zabeta,

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Speaker 1: the first War on Terror detainee subjected to extensive torture

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Speaker 1: by the CIA at a black site in Poland. His

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Speaker 1: torture has been widely reported and even confirmed in a

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Speaker 1: US Senate report. The Justice Is pointed this out again

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Speaker 1: and again during the oral arguments. Here are Chief Justice

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Speaker 1: John Roberts and Justice is Sonya Sotomayor and Elena Kagan.

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Speaker 1: Everybody may know about this, you know, as as it's

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Speaker 1: no secret at all, But you don't have the United

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Speaker 1: States government acknowledging that because it's not a state secret

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Speaker 1: that he was tortured. The date he was tortured is

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Speaker 1: not a state secret the place. Maybe, I mean, if

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Speaker 1: everybody knows what you are asserting privilege on, like what

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Speaker 1: what exactly does this privilege? I mean, maybe we should

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Speaker 1: rename it or something. It's not a state secrets privilege anymore.

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Speaker 1: Zubeta is trying to get testimony from two CIA psychologists

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Speaker 1: for a Polish investigation into the torture, but the federal

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Speaker 1: government has blocked the subpoenas on the grounds of national security.

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Speaker 1: Joining me as former federal prosecutor Jimmy Garule, a professor

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Speaker 1: at Notre Dame Law School, Jimmy tell us about Abu Zabeta,

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Speaker 1: who's been held at Guantanamo Bay for almost twenty years.

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Speaker 1: Abeta was believed by the US government, the CIA in particular,

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Speaker 1: to be a high level Al Qaeda official, and he

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Speaker 1: was abducted in Pakistan back in March of two thousand two,

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Speaker 1: and then he was taken to a black site in Poland,

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Speaker 1: and black site refers to a location where he was

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Speaker 1: held outside of the jurisdiction of the U S courts

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Speaker 1: for the purpose of interrogation. The interrogation involved something called

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Speaker 1: enhanced interrogation techniques, which included water boarding and other technique

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Speaker 1: stress positions, being kept up sleep deprivation for literally days

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Speaker 1: at a time. They didn't effect amounted to torture. So

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Speaker 1: what is the issue in this case before the Supreme Court. Well,

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Speaker 1: the issue involves an attempt by Abu Zabda's lawyers to

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Speaker 1: subpoena to ci A contractors by the name of James

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Speaker 1: Mitchell and Bruce Jesson, their psychologists, and they were retained

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Speaker 1: by the CIA to develop these enhanced interrogation techniques that

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Speaker 1: were used against suspected members of al Qaeda after the

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Speaker 1: nine eleven terror attacks in and at It to obtain

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Speaker 1: from them information regarding future terrorist attacks, the dates and

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Speaker 1: locations of those attacks, and these witnesses are being subpoena

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Speaker 1: to assist in a Polish criminal investigation involving again the

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Speaker 1: use of these black sites being located in Poland and

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Speaker 1: used to detain a wasabeta and used to torture him

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Speaker 1: pursuanto these enhanced interrogation techniques. So the government is claiming

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Speaker 1: that this involves state secrets and national security. It's called

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Speaker 1: the state secrets privilege, and it's a privilege that extends

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Speaker 1: to the government. It permits the government to bar the

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Speaker 1: disclosure of information if there is a quote reasonable danger

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Speaker 1: end quote that such disclosure would expose military matters which,

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Speaker 1: in the interest of national security, should not be divulged.

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Speaker 1: Why is this torture even being considered a state its secret.

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Speaker 1: There've been countless news stories, books, a Senate report, even

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Speaker 1: a movie about it. So that's the issue. So that's

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Speaker 1: one of the important issues before the Supreme Court. And

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Speaker 1: so it's no longer a secret. I think it's well known.

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Speaker 1: In fact, the Polish government has admitted that its territory

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Speaker 1: was used by the CIA for the purpose of detaining

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Speaker 1: Abu Zabeta and others. So the fact that it's public

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Speaker 1: knowledge and it's not a state secret, does the state

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Speaker 1: secrets privilege apply? And the government maintains that it does,

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Speaker 1: even though again this information is well known, because if

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Speaker 1: it was disclosed or if these individuals were permitted to

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Speaker 1: testify and this Polish criminal investigation, it would confirm, it

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Speaker 1: would actually confirm what is known. It would confirm that

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Speaker 1: Poland was being used or permitted to be used by

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Speaker 1: the United States government for establishing or using these black sites.

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Speaker 1: So what was the main concern that you heard during

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Speaker 1: oral arguments from the justices? Was there one in particular

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Speaker 1: that stood out well? I think there were concerns expressed

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Speaker 1: by several of the justices on exactly the point that

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Speaker 1: this is no longer a state secret. This is a

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Speaker 1: matter of public knowledge. This is well known, so the

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Speaker 1: state secrets privilege should not apply. And so the Justice

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Speaker 1: has really pressed the government lawyers on that point, and

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Speaker 1: again the government's response as well, if these individuals are

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Speaker 1: permitted to testify, it's going to confirm what is believed,

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Speaker 1: and so right now it's kind of understood, but now

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Speaker 1: this will make it a fact. It will confirm that

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Speaker 1: Poland was used by the CIA for these purposes. And

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Speaker 1: the claim is further than that, this is going to

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Speaker 1: undermine our relationship, the U S relationship with foreign allies,

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Speaker 1: because again it was understood that when this black site

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Speaker 1: was established in Poland, that it would not be disclosed

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Speaker 1: by the United States, and so this would undermine that agreement,

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Speaker 1: and then therefore foreign governments would be less willing to

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Speaker 1: cooperate with the United States on national security matters in

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Speaker 1: the future. Justice Briar so to Mayor and Gorset suggested

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Speaker 1: that Abu Zabeta testify himself about the torture, and there

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Speaker 1: was a really tense exchange when the Assistant Solicitor General

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Speaker 1: refused to give them an answer about whether the government

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Speaker 1: would allow that. And I think some of the other

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Speaker 1: justices were agitated as well, because here it's interesting kind

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Speaker 1: of going back to the fundamentals of the state secrets privilege.

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Speaker 1: It's an attempt to reconcile to competing interests. So national

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Speaker 1: security on the one hand, but on the other hand,

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Speaker 1: it's the plaintiff's right to have his day in court,

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Speaker 1: the rights who provide a plaintiff and avenue of judicial relief,

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Speaker 1: and so generally national security trump's the plaintiff's right of

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Speaker 1: a civil action on a civil remedy. But it seems

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Speaker 1: that when this is a matter of public knowledge, that

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Speaker 1: the now sational security interest is less compelling, substantially less

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Speaker 1: compelling in that situation, and the plaintiff, again, you should

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Speaker 1: be permitted to pursue a judicial remedy. And to that point,

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Speaker 1: justice is Stephen Bryant and Brett Kavanaugh asked some questions

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Speaker 1: about his detention that were really beyond the scope of

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Speaker 1: the issues in the case. We said, you could hold

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Speaker 1: people in Guantanamo. The words were active combat operations against

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Speaker 1: Taliban fighters apparently are going on in Afghanistan? Were there

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Speaker 1: not anymore? Mr? So? What's the what? Why is he there?

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Speaker 1: Is the United States still engaged in hostilities for purposes

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Speaker 1: of the a u n F against Al Qaeda and

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Speaker 1: related terrorist organizations. That is the government's position. Well, this

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Speaker 1: addresses a very important question, but it's a separate question,

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Speaker 1: and it goes to the issue of pre trialed attention

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Speaker 1: military detention. So abus of Beta has been obtained by

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Speaker 1: the US government since March of two thousand two. It's

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Speaker 1: it's almost been twenty years. He hasn't been charged with

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Speaker 1: a crime. And the justification for his detention is that

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Speaker 1: the United States is engaged in an armed conflict with

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Speaker 1: al Qaeda, so called war with al Qaeda, and under

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Speaker 1: the law of armed conflict, under the law of war,

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Speaker 1: enemy combatants, the enemy can be detained as a preventive

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Speaker 1: measure to prevent them from taking up arms and returning

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Speaker 1: to the battlefield and killing American soldiers. So here now,

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Speaker 1: in light of the fact that the leadership of al

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Speaker 1: Qaeda has been decimated, it's on the run. It's a

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Speaker 1: very disorganized terroristy organization at this point. And furthermore, the

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Speaker 1: US has now withdrawn all of its military forces from Afghanistan.

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Speaker 1: Can it still be said that the United States has

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Speaker 1: involved in an armed conflict that justifies military detention. And

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Speaker 1: if the answer to that question is no, there's no

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Speaker 1: longer an armed conflict, then Abu Zabeta should be released

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Speaker 1: from detention. So there's been a habeas proceeding pending for

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Speaker 1: the last fourteen years. How long can they keep him?

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Speaker 1: President Biden and others have talked about the Forever War. Well,

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Speaker 1: the thought was that the Forever War had come to

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Speaker 1: an end when American troops were withdrawn from Afghanistan. But

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Speaker 1: the Biden administration is still maintaining that the United States

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Speaker 1: is at war with al Qaeda and other terrorist organizations

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Speaker 1: and therefore suspected members suspected members of al Qaeda can

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Speaker 1: continue to be held indefinitely. And I think that's very troublesome.

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Speaker 1: More than troublesome, I think it's tragic because here the

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Speaker 1: United States promotes itself as being a democracy based on

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Speaker 1: the rule of law. Well, how can someone be held

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Speaker 1: for approximately twenty years without criminal charges being filed against

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Speaker 1: him and without being convicted of any crime. That just

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Speaker 1: flies in the face ace of fundamental fairness, It flies

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Speaker 1: in the face of new process, It flies in the

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Speaker 1: face of the rule of law. So how do you

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Speaker 1: think the court is going to rule here? To be

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Speaker 1: honest with you, June, I wouldn't be surprised if they

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Speaker 1: find some way to continue to recognize national security and

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Speaker 1: the state secrets privilege. I just think that the courts

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Speaker 1: again are very reluctant to second guests the government's claim

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Speaker 1: of national security. Again, they're not well positioned to make

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Speaker 1: that determination. Is that even a justiciable issue for them?

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Speaker 1: Is that a political question that they shouldn't be involved in?

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Speaker 1: And then I think there's a pragmatic concern. At the

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Speaker 1: same time, if they say that the state secreence privilege

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Speaker 1: doesn't apply here, then what's the precedent that that sets

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Speaker 1: in future cases? Is that a slippery slope where now

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Speaker 1: other plainists are going to be able to introduce at

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Speaker 1: trial evidence that implicates national security. So I think if

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Speaker 1: it's a ruling in favor of Abazobaida, think it's going

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Speaker 1: to be a very very narrow ruling. At the same time,

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Speaker 1: I wouldn't be shocked if they come back and affirm

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Speaker 1: the doctrine against Obbusaveta. This is just one of two

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Speaker 1: state secrets cases that the Supreme Court is going to

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Speaker 1: hear this term. Does that show that the justices want

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Speaker 1: to to maybe tighten the privilege? I think so. I

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Speaker 1: think so because the facts now are so extreme. Again,

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Speaker 1: we're looking at individuals that have been held without trial,

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Speaker 1: without criminal charges for over twenty years, and when they're

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Speaker 1: attempting to challenge uh their attention and seeking to use

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Speaker 1: classified information to to justify their release or justify some

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Speaker 1: type of judicial remedy, the state secrets privilege is raised

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Speaker 1: every time to prevent that from happening. And in addition,

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Speaker 1: with respect of the state secrets privilege, whether there's really

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Speaker 1: a national purity interest implicated, the courts are not in

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Speaker 1: a position to second guess the US government's claim of

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Speaker 1: national security. So the courts have been very deferential to

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Speaker 1: the government's claim of state secrets. And so I think

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Speaker 1: now the Supreme Court has has become a little weary

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Speaker 1: of that and concerned that it's being abused by the

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Speaker 1: government in a way again it's dist inconsistent with our

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Speaker 1: constitutional values. Thanks Jimmy. That's Jimmy Grule of Notre Dame

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Speaker 1: Law School. And with that, I would like to formally

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Speaker 1: raise the flag and began Boston Pride. The LGBT Pride

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Speaker 1: flag is just one of the many flags that you

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Speaker 1: may see flying over Boston City Hall. What you won't

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Speaker 1: see is the flag of a Christian group called Camp Constitution.

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Speaker 1: The city has refused to allow the group to display

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Speaker 1: its flag, which features a red Christian cross on a

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Speaker 1: blue background. The first Circuit Court of Appeal said that

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Speaker 1: was okay, but the Supreme Court has decided to take

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Speaker 1: another look at the case. My guest is Richard Garnett,

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Speaker 1: a professor at Notre Dame Law School and director of

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Speaker 1: the Notre Dame Program on Church, State and Society. Rick,

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Speaker 1: why do you think that justice is took this case? Well,

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Speaker 1: there's an old joke, but it's not really a joke

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Speaker 1: that the justices usually don't grant review if they're going

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Speaker 1: to affirm. So my reading is that the justices are

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Speaker 1: at least a substantial number of the justices believe that

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Speaker 1: the decision below was inconsistent with the courts precedents on

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Speaker 1: free speech in public forums and on the so called

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Speaker 1: government speech doctrine. So my prediction is that they took

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Speaker 1: the case in order to correct the lower court's decision

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Speaker 1: and to make clear that in a public forum, religious

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Speaker 1: speech by private citizens is constitutionally protected. The Christian group's

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Speaker 1: argument is that the flagpole is a designated public forum,

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Speaker 1: so they have First Amendment rights. Tell us more about

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Speaker 1: that obviously, the government owns a lot of property, and

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Speaker 1: when we talk about government property, we're not just talking

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Speaker 1: about land. The idea of a forum has been extended

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Speaker 1: to all kinds of speech media, so it could include,

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Speaker 1: you know, a bulletin board or something like a flag

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Speaker 1: pause we've seen here, and the Court has developed auctions

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Speaker 1: over the last decades saying that once the government opens

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Speaker 1: up space for private expression, it can't discriminate against private

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Speaker 1: expression on the basis of the expression's viewpoint. So even

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Speaker 1: though it's on public property, and even though you know,

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Speaker 1: generally speaking, the government gets to manage its own property,

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Speaker 1: once the government designates a space as being for the

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Speaker 1: purpose of private speech, it then can't discriminate. And what

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Speaker 1: the Christian group is saying here is that the exclusion

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Speaker 1: of their flag from this designated forum, which was the

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Speaker 1: flagpole and display program, that that constituted discrimination against religious speech,

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Speaker 1: and that that kind of discrimination is not justified by

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Speaker 1: the establishment clause, and it's not permitted by the free

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Speaker 1: exercise clause. And what is Boston arguing in response to that?

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Speaker 1: The other argument draws on the so called government speech doctrine,

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Speaker 1: and that is that when the government is speaking for itself.

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Speaker 1: It's allowed to choose its own messages. So there have

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Speaker 1: been cases, for example, when a group wanted to put

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Speaker 1: up a religious symbol on public property and they said, look,

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Speaker 1: there's some other monuments on this property, like the Ten Commandments,

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Speaker 1: so you know, you can't discriminate against us. You have

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Speaker 1: to allow our message to be there too. And the

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Speaker 1: court said, no, that wasn't a designated forum. That was

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Speaker 1: the government speaking for itself. So this is the kind

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Speaker 1: of thing that law professors love to write exams about.

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Speaker 1: How do you distinguish between cases where the government is

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Speaker 1: speaking for itself on its own behalf from cases where

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Speaker 1: the government has just opened up space for private speech.

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Speaker 1: So in this instance, the counter argument that know, the

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Speaker 1: decision about what to display on the flagpole, that's the

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Speaker 1: government speaking for itself, and therefore it's allowed to pick

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Speaker 1: and choose, and it doesn't have to display religious speech

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Speaker 1: if it doesn't want to. So it'll be a fun

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Speaker 1: little exercise in deciphering Supreme Court doctrine and drawing fine distinctions.

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Speaker 1: But the lower court had agreed with the government that

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Speaker 1: this did not violate the Christian group's free speech rights.

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Speaker 1: The Boston City flag includes the city seal, which features

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Speaker 1: a Latin inscription that means God be with us as

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Speaker 1: He was with our fathers. Yeah, what's the distinction because

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Speaker 1: the name of God is mentioned on our money, in

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Speaker 1: our courtrooms. So where they draw the line. The short

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Speaker 1: answer is there isn't a line. As you point out,

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Speaker 1: the government is permitted and does use religious terminology and

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Speaker 1: symbols all the time, and the courts have made it

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Speaker 1: pretty clear that the mere fact that the government does

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Speaker 1: that doesn't violate the Establishment clause. So you know, the

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Speaker 1: city of Los Angeles, which is named after Jesus's mother,

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Speaker 1: doesn't have to change its name, nor does the city

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Speaker 1: of Sacramento, or the city of Saint Augustine and so

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Speaker 1: on and lots of times they'll be historical seals and

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Speaker 1: symbols that contain religious imagery. You know, there's the Ten

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Speaker 1: Commandments on the wall of the Supreme Court room itself.

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Speaker 1: There is no bright line test. In years past, what

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Speaker 1: the court has asked to trying to decide whether the

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Speaker 1: use of a symbol goes to far is whether the

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Speaker 1: use of that symbol would be perceived by the reasonable

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Speaker 1: person as the government's endorsing of religion. But there's been

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Speaker 1: a lot of criticism of that endorsement approach because it

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Speaker 1: also doesn't seem to have a bright line. I mean,

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Speaker 1: what's the difference between acknowledging religion's role in our history

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Speaker 1: on the one hand, and endorsing it in a coercive

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Speaker 1: or you know, establishment aryan type way on the other.

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Speaker 1: So the Boston flag, there have been lawsuits by various

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Speaker 1: secularist groups or atheist groups that have tried to say

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Speaker 1: that various cities flags and seals are unconstitutional. Usually courts

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Speaker 1: don't accept those challenges. Usually they just differ to you know,

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Speaker 1: history and practice and so on. And you think that

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Speaker 1: the First Circuit was incorrect in saying that it was

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Speaker 1: government speech, well, I'm guessing that a majority of the

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Speaker 1: justices think it was incorrect. The Court in recent years,

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Speaker 1: with some exceptions obviously, but the Court has been pretty

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Speaker 1: focused on enforcing free speech rules against government discrimination against

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Speaker 1: religious speech, and the Supreme Court generally speaking, has been

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Speaker 1: very skeptical how government speech regulations. Now, there have been

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Speaker 1: some exceptions, you know, involving Texas license plate program for example,

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Speaker 1: But on my reading of the te leaves here, the

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Speaker 1: Supreme Court is likely to say that the First Circuit

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Speaker 1: got it wrong. So, knowing what you know, why do

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Speaker 1: you think the First Circuit didn't know that? Seeing that

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Speaker 1: the Supreme Court has expanded religious rights, and especially now

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Speaker 1: with the six member and conserving majority. Well, um, you know,

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Speaker 1: in fairness to the First Circuit, Uh, it's it's it's

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Speaker 1: reasonable to think that the the line, but that sometimes

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Speaker 1: the line between a designated public forum and a government

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Speaker 1: speech context is it is a fuzzy one, and reasonable

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Speaker 1: minds can can sometimes disagree. Um. I do think that

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Speaker 1: the First Circuit at present is um, you know, more

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Speaker 1: attached to what we might call uh separationist values when

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Speaker 1: it comes to the establishment cause. Then the Supreme Court

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Speaker 1: is um, you know, there's another there's another First Amendment

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Speaker 1: case from the First Circuit that the Court is hearing

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Speaker 1: this term involving um um public funding of kids who

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Speaker 1: attend religious schools in the state of Maine. And that's

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Speaker 1: a First Circuit decision too. So it could be that

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Speaker 1: just you know, there's a given how courts are made

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Speaker 1: up at various points in time, that there actually is

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Speaker 1: a slight difference in um philosophy about what the establishment

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Speaker 1: clause means between the two courts. But I assume it's

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Speaker 1: a good faith disagreement. I just think, and I'm inclined

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Speaker 1: to predict that the First Circuit is gonna um be overruled.

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Speaker 1: Here tell us about the other first Circuit case. Yeah,

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Speaker 1: it's a case called Carson Um. I should disclose that

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Speaker 1: I file a brief in it, So I'm not neutral.

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Speaker 1: But this is a case that is um building on

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Speaker 1: some decisions for the last few years, when the Court

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Speaker 1: has held twice in the last several terms that government

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Speaker 1: once they once the government decides to allow um public

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Speaker 1: funding for various educational purposes, it can't discriminate against UH

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Speaker 1: schools just because they're religious. It can't discriminate on the

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Speaker 1: basis of religious status. So um, you know, if you

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Speaker 1: have a program that allows kids to use public funds

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Speaker 1: to attend private schools, you can't single out religious schools

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Speaker 1: for exclusion. That's the courts suggested that in this this

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Speaker 1: case out of Maine is kind of an extension of

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Speaker 1: that argument. We're here. The First Circuit said, well, Maine

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Speaker 1: is not discriminating against schools simply because they're religious. It's

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Speaker 1: not discriminating on the basis of their religious status. Instead,

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Speaker 1: what Maine is doing is looking more closely at schools

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Speaker 1: and trying to decide whether a particular school has um

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Speaker 1: is kind of pervasively religious, whether the money might be

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Speaker 1: used for a religious purpose, or whether um for religious uses.

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Speaker 1: The term that sometimes gets used and there, to my

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Speaker 1: own view is that the Supreme Court is going to

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Speaker 1: say that that the first Circuit did not correctly apply

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Speaker 1: the Supreme Courts precedents. I think the Justices are going

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Speaker 1: to say that, look, once Main decides that it's going

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Speaker 1: to allow parents to use public funds to attend out

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Speaker 1: of district schools, and Maine has been doing this for decades, um,

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Speaker 1: they can't single out otherwise eligible, otherwise qualified religious schools

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Speaker 1: for exclusion. I think they're gonna really emphasize a kind

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Speaker 1: of bright line rule that once you have a choice program,

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Speaker 1: religious schools get to participate. And that will be a

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Speaker 1: significant development because there has been an expansion of interest

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Speaker 1: in school choice in part because of the pandemic and

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Speaker 1: all the school closures, and it could be relevant to

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Speaker 1: some states charter school programs and mechanisms. So I I

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Speaker 1: do feel like, again to instance, where the Court the

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Speaker 1: fact that the Court took the case suggests to me

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Speaker 1: that they're going to overrule the First Circuit, and if

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Speaker 1: they do um again, the results here could probably be

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Speaker 1: more significant than the results in the Flagpole case. I

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Speaker 1: feel like it would be shocking if they didn't overrule

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Speaker 1: the First Circuit in the main case. And I'm surprised

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Speaker 1: at the First Circuit looking at the way the Supreme

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Speaker 1: Court has been handling different cases involving funding, like the

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Speaker 1: Playground case. Why they didn't rule differently. Well, again, I

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Speaker 1: do think there's a um that the First Circuit judges

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Speaker 1: are more inclined to kind of a stricter separation view

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Speaker 1: of how the First Amendments should work. And in fairness

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Speaker 1: to them, um, the Supreme Court did say in the

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Speaker 1: in the Playground case you're talking about, that's called Trinity

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Speaker 1: Lutheran And in the more recent Montana case, the Court

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Speaker 1: did the majority um invoke this anction between discrimination on

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Speaker 1: the basis of religious status as opposed to discrimination on

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Speaker 1: the basis of religious use or activity. So the justices

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Speaker 1: did make that distinction relevant. Now, there were some of

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Speaker 1: the justices in concurring opinions, especially justice courses, who said, well,

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Speaker 1: that distinction doesn't make any sense. But the First Circuit

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Speaker 1: did um have you know it applied to distinction that

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Speaker 1: the Supreme Court had itself invoked. My own view is

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Speaker 1: that it didn't apply it correctly, And I'm also inclined

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Speaker 1: to agree with Justice Corsets that the distinction doesn't make

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Speaker 1: much sense. So this might the big news in the

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Speaker 1: Carson case could be if the Court um says, look, um,

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Speaker 1: we're not going to get into We're not going to

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Speaker 1: get in the business of drawing, um hair splitting distinctions

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Speaker 1: between religious status or schools that happened to actually also

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Speaker 1: have religious content. We're just going to say you can't

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Speaker 1: discriminate on the basis of religion once you open up

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Speaker 1: a choice program. And that strikes me as um kind

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Speaker 1: of a more coherent approach. But obviously there will be

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Speaker 1: those who will say, no, the you know it can't

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Speaker 1: it can't be right that the free exercise clause requires

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Speaker 1: the government to fund religious education. I think that was

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Speaker 1: kind of the view that was underlying the First Circuit's opinion.

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Speaker 1: But here too, I mean, in both of these cases,

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Speaker 1: although I think the First Circuit will lose, they there

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Speaker 1: were um distinctions and doctrines in the Supreme Courts decisions

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Speaker 1: that that provided them a basis for the reasoning that

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Speaker 1: they that they employed. What other cases involving religion is

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Speaker 1: the court taking up this term. The one that comes

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Speaker 1: to mind for me right away is there's a case

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Speaker 1: involving the execution procedures um of a particular state where

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Speaker 1: UM under the Religious Land Use and Institutionalized Persons Act,

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Speaker 1: which protects the religious exercise of prisoners, the question is

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Speaker 1: whether the prison administrators can prevent a person's pastor or

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Speaker 1: spiritual advisor from um being present in the room during

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Speaker 1: an execution and also from um uh you know, perhaps

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Speaker 1: holding the person's hand or speaking uh during the during

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Speaker 1: the execution protocol so um, you know the federal law

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Speaker 1: and the free exercise clause. But federal law in particular

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Speaker 1: says that if the government burdens a prisoner's free exercise

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Speaker 1: of religion, that that burden has to be justified by

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Speaker 1: a compelling state interest. And so there are kind of

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Speaker 1: two legal questions in this execution case. One is whether

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Speaker 1: it really burdens somebody's free exercise of religion um to

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Speaker 1: not have their pastor in the room or to not

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Speaker 1: have the pastor touching our speaking, and then the question

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Speaker 1: and then if that is a burden on religion, then

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Speaker 1: the question is whether that bird is justified by the

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Speaker 1: government's compelling interest in you know, safety and prison order

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Speaker 1: and things like that. Thanks Rick, That's Professor Richard Garnett

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Speaker 1: of Notre Dame Law School, And that's it for the

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Speaker 1: sedition of the Bloomberg Law Show. Remember you can always

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Speaker 1: get the latest legal news by listening to our Bloomberg

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Speaker 1: podcast wherever you get your favorite podcasts. I'm June Grosso

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Speaker 1: and you're listening to Bloomberg