WEBVTT - State Secrets That Are Not Secrets in Black Site Case 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:08.920 --> 0:00:12.639 Can the government shield information under the state secrets privilege 0:00:12.960 --> 0:00:15.960 even when the information is not a secret at all? 0:00:16.440 --> 0:00:20.040 This week, the Supreme Court considered the case of Abu Zabeta, 0:00:20.440 --> 0:00:24.639 the first War on Terror detainee subjected to extensive torture 0:00:24.720 --> 0:00:27.760 by the CIA at a black site in Poland. His 0:00:27.880 --> 0:00:31.000 torture has been widely reported and even confirmed in a 0:00:32.080 --> 0:00:35.479 US Senate report. The Justice Is pointed this out again 0:00:35.479 --> 0:00:38.839 and again during the oral arguments. Here are Chief Justice 0:00:38.920 --> 0:00:42.440 John Roberts and Justice is Sonya Sotomayor and Elena Kagan. 0:00:43.200 --> 0:00:46.080 Everybody may know about this, you know, as as it's 0:00:46.120 --> 0:00:49.519 no secret at all, But you don't have the United 0:00:49.560 --> 0:00:55.960 States government acknowledging that because it's not a state secret 0:00:56.040 --> 0:00:59.920 that he was tortured. The date he was tortured is 0:01:00.040 --> 0:01:05.200 not a state secret the place. Maybe, I mean, if 0:01:05.240 --> 0:01:09.959 everybody knows what you are asserting privilege on, like what 0:01:09.800 --> 0:01:12.240 what exactly does this privilege? I mean, maybe we should 0:01:12.360 --> 0:01:15.480 rename it or something. It's not a state secrets privilege anymore. 0:01:15.959 --> 0:01:19.840 Zubeta is trying to get testimony from two CIA psychologists 0:01:19.880 --> 0:01:23.520 for a Polish investigation into the torture, but the federal 0:01:23.520 --> 0:01:27.559 government has blocked the subpoenas on the grounds of national security. 0:01:27.880 --> 0:01:31.840 Joining me as former federal prosecutor Jimmy Garule, a professor 0:01:31.840 --> 0:01:35.800 at Notre Dame Law School, Jimmy tell us about Abu Zabeta, 0:01:35.959 --> 0:01:39.440 who's been held at Guantanamo Bay for almost twenty years. 0:01:39.840 --> 0:01:44.280 Abeta was believed by the US government, the CIA in particular, 0:01:44.720 --> 0:01:48.920 to be a high level Al Qaeda official, and he 0:01:49.000 --> 0:01:54.360 was abducted in Pakistan back in March of two thousand two, 0:01:55.160 --> 0:01:59.560 and then he was taken to a black site in Poland, 0:01:59.600 --> 0:02:03.720 and black site refers to a location where he was 0:02:03.760 --> 0:02:08.480 held outside of the jurisdiction of the U S courts 0:02:08.520 --> 0:02:13.440 for the purpose of interrogation. The interrogation involved something called 0:02:13.560 --> 0:02:19.359 enhanced interrogation techniques, which included water boarding and other technique 0:02:19.400 --> 0:02:24.360 stress positions, being kept up sleep deprivation for literally days 0:02:24.360 --> 0:02:27.800 at a time. They didn't effect amounted to torture. So 0:02:27.960 --> 0:02:31.919 what is the issue in this case before the Supreme Court. Well, 0:02:32.000 --> 0:02:36.880 the issue involves an attempt by Abu Zabda's lawyers to 0:02:37.080 --> 0:02:41.320 subpoena to ci A contractors by the name of James 0:02:41.440 --> 0:02:47.400 Mitchell and Bruce Jesson, their psychologists, and they were retained 0:02:47.440 --> 0:02:52.840 by the CIA to develop these enhanced interrogation techniques that 0:02:52.960 --> 0:02:57.320 were used against suspected members of al Qaeda after the 0:02:57.400 --> 0:03:01.359 nine eleven terror attacks in and at It to obtain 0:03:01.480 --> 0:03:07.680 from them information regarding future terrorist attacks, the dates and 0:03:07.720 --> 0:03:12.360 locations of those attacks, and these witnesses are being subpoena 0:03:12.320 --> 0:03:17.000 to assist in a Polish criminal investigation involving again the 0:03:17.120 --> 0:03:21.640 use of these black sites being located in Poland and 0:03:21.840 --> 0:03:26.040 used to detain a wasabeta and used to torture him 0:03:26.040 --> 0:03:31.360 pursuanto these enhanced interrogation techniques. So the government is claiming 0:03:31.480 --> 0:03:36.080 that this involves state secrets and national security. It's called 0:03:36.080 --> 0:03:39.920 the state secrets privilege, and it's a privilege that extends 0:03:39.960 --> 0:03:42.560 to the government. It permits the government to bar the 0:03:42.640 --> 0:03:47.680 disclosure of information if there is a quote reasonable danger 0:03:48.000 --> 0:03:52.920 end quote that such disclosure would expose military matters which, 0:03:52.920 --> 0:03:55.880 in the interest of national security, should not be divulged. 0:03:56.680 --> 0:04:00.720 Why is this torture even being considered a state its secret. 0:04:01.080 --> 0:04:05.200 There've been countless news stories, books, a Senate report, even 0:04:05.200 --> 0:04:07.920 a movie about it. So that's the issue. So that's 0:04:08.000 --> 0:04:11.160 one of the important issues before the Supreme Court. And 0:04:11.240 --> 0:04:13.840 so it's no longer a secret. I think it's well known. 0:04:14.040 --> 0:04:17.720 In fact, the Polish government has admitted that its territory 0:04:17.839 --> 0:04:20.720 was used by the CIA for the purpose of detaining 0:04:20.880 --> 0:04:23.839 Abu Zabeta and others. So the fact that it's public 0:04:23.920 --> 0:04:26.640 knowledge and it's not a state secret, does the state 0:04:26.760 --> 0:04:30.760 secrets privilege apply? And the government maintains that it does, 0:04:30.960 --> 0:04:35.080 even though again this information is well known, because if 0:04:35.120 --> 0:04:38.120 it was disclosed or if these individuals were permitted to 0:04:38.200 --> 0:04:42.680 testify and this Polish criminal investigation, it would confirm, it 0:04:42.720 --> 0:04:46.280 would actually confirm what is known. It would confirm that 0:04:46.360 --> 0:04:48.920 Poland was being used or permitted to be used by 0:04:48.960 --> 0:04:53.120 the United States government for establishing or using these black sites. 0:04:53.560 --> 0:04:56.480 So what was the main concern that you heard during 0:04:56.640 --> 0:04:59.960 oral arguments from the justices? Was there one in particular 0:05:00.279 --> 0:05:03.960 that stood out well? I think there were concerns expressed 0:05:03.960 --> 0:05:07.520 by several of the justices on exactly the point that 0:05:07.680 --> 0:05:10.760 this is no longer a state secret. This is a 0:05:10.839 --> 0:05:14.359 matter of public knowledge. This is well known, so the 0:05:14.400 --> 0:05:19.160 state secrets privilege should not apply. And so the Justice 0:05:19.160 --> 0:05:23.159 has really pressed the government lawyers on that point, and 0:05:23.200 --> 0:05:26.560 again the government's response as well, if these individuals are 0:05:26.560 --> 0:05:30.560 permitted to testify, it's going to confirm what is believed, 0:05:30.760 --> 0:05:32.920 and so right now it's kind of understood, but now 0:05:33.000 --> 0:05:34.960 this will make it a fact. It will confirm that 0:05:35.080 --> 0:05:39.120 Poland was used by the CIA for these purposes. And 0:05:39.160 --> 0:05:41.680 the claim is further than that, this is going to 0:05:41.880 --> 0:05:46.279 undermine our relationship, the U S relationship with foreign allies, 0:05:46.760 --> 0:05:51.480 because again it was understood that when this black site 0:05:51.640 --> 0:05:55.240 was established in Poland, that it would not be disclosed 0:05:55.279 --> 0:05:59.000 by the United States, and so this would undermine that agreement, 0:05:59.120 --> 0:06:02.520 and then therefore foreign governments would be less willing to 0:06:02.600 --> 0:06:06.080 cooperate with the United States on national security matters in 0:06:06.120 --> 0:06:10.920 the future. Justice Briar so to Mayor and Gorset suggested 0:06:10.960 --> 0:06:14.480 that Abu Zabeta testify himself about the torture, and there 0:06:14.560 --> 0:06:18.520 was a really tense exchange when the Assistant Solicitor General 0:06:18.800 --> 0:06:21.040 refused to give them an answer about whether the government 0:06:21.080 --> 0:06:23.440 would allow that. And I think some of the other 0:06:23.600 --> 0:06:28.200 justices were agitated as well, because here it's interesting kind 0:06:28.200 --> 0:06:31.640 of going back to the fundamentals of the state secrets privilege. 0:06:31.720 --> 0:06:35.200 It's an attempt to reconcile to competing interests. So national 0:06:35.240 --> 0:06:37.839 security on the one hand, but on the other hand, 0:06:38.200 --> 0:06:43.000 it's the plaintiff's right to have his day in court, 0:06:43.680 --> 0:06:47.680 the rights who provide a plaintiff and avenue of judicial relief, 0:06:48.200 --> 0:06:52.880 and so generally national security trump's the plaintiff's right of 0:06:52.880 --> 0:06:55.960 a civil action on a civil remedy. But it seems 0:06:56.040 --> 0:06:59.560 that when this is a matter of public knowledge, that 0:06:59.640 --> 0:07:03.520 the now sational security interest is less compelling, substantially less 0:07:03.520 --> 0:07:07.559 compelling in that situation, and the plaintiff, again, you should 0:07:07.640 --> 0:07:11.520 be permitted to pursue a judicial remedy. And to that point, 0:07:11.760 --> 0:07:15.520 justice is Stephen Bryant and Brett Kavanaugh asked some questions 0:07:15.880 --> 0:07:19.240 about his detention that were really beyond the scope of 0:07:19.280 --> 0:07:22.160 the issues in the case. We said, you could hold 0:07:22.200 --> 0:07:27.680 people in Guantanamo. The words were active combat operations against 0:07:27.680 --> 0:07:31.720 Taliban fighters apparently are going on in Afghanistan? Were there 0:07:31.720 --> 0:07:34.680 not anymore? Mr? So? What's the what? Why is he there? 0:07:36.000 --> 0:07:39.520 Is the United States still engaged in hostilities for purposes 0:07:39.560 --> 0:07:41.720 of the a u n F against Al Qaeda and 0:07:41.800 --> 0:07:47.040 related terrorist organizations. That is the government's position. Well, this 0:07:47.120 --> 0:07:50.400 addresses a very important question, but it's a separate question, 0:07:50.760 --> 0:07:53.560 and it goes to the issue of pre trialed attention 0:07:53.680 --> 0:07:58.160 military detention. So abus of Beta has been obtained by 0:07:58.200 --> 0:08:01.200 the US government since March of two thousand two. It's 0:08:01.240 --> 0:08:04.600 it's almost been twenty years. He hasn't been charged with 0:08:04.640 --> 0:08:08.040 a crime. And the justification for his detention is that 0:08:08.080 --> 0:08:11.720 the United States is engaged in an armed conflict with 0:08:11.760 --> 0:08:16.320 al Qaeda, so called war with al Qaeda, and under 0:08:16.360 --> 0:08:19.240 the law of armed conflict, under the law of war, 0:08:20.120 --> 0:08:25.040 enemy combatants, the enemy can be detained as a preventive 0:08:25.080 --> 0:08:27.680 measure to prevent them from taking up arms and returning 0:08:27.720 --> 0:08:31.800 to the battlefield and killing American soldiers. So here now, 0:08:31.840 --> 0:08:34.160 in light of the fact that the leadership of al 0:08:34.200 --> 0:08:37.720 Qaeda has been decimated, it's on the run. It's a 0:08:37.840 --> 0:08:43.000 very disorganized terroristy organization at this point. And furthermore, the 0:08:43.120 --> 0:08:48.720 US has now withdrawn all of its military forces from Afghanistan. 0:08:49.120 --> 0:08:52.160 Can it still be said that the United States has 0:08:52.240 --> 0:08:56.960 involved in an armed conflict that justifies military detention. And 0:08:57.000 --> 0:08:59.480 if the answer to that question is no, there's no 0:08:59.559 --> 0:09:04.280 longer an armed conflict, then Abu Zabeta should be released 0:09:04.559 --> 0:09:08.920 from detention. So there's been a habeas proceeding pending for 0:09:08.960 --> 0:09:12.800 the last fourteen years. How long can they keep him? 0:09:13.160 --> 0:09:17.000 President Biden and others have talked about the Forever War. Well, 0:09:17.160 --> 0:09:19.440 the thought was that the Forever War had come to 0:09:19.480 --> 0:09:24.040 an end when American troops were withdrawn from Afghanistan. But 0:09:24.200 --> 0:09:27.200 the Biden administration is still maintaining that the United States 0:09:27.280 --> 0:09:30.400 is at war with al Qaeda and other terrorist organizations 0:09:30.480 --> 0:09:35.160 and therefore suspected members suspected members of al Qaeda can 0:09:35.240 --> 0:09:39.880 continue to be held indefinitely. And I think that's very troublesome. 0:09:39.920 --> 0:09:43.080 More than troublesome, I think it's tragic because here the 0:09:43.160 --> 0:09:46.400 United States promotes itself as being a democracy based on 0:09:46.440 --> 0:09:49.400 the rule of law. Well, how can someone be held 0:09:49.960 --> 0:09:54.720 for approximately twenty years without criminal charges being filed against 0:09:54.840 --> 0:09:58.840 him and without being convicted of any crime. That just 0:09:59.040 --> 0:10:02.480 flies in the face ace of fundamental fairness, It flies 0:10:02.520 --> 0:10:04.400 in the face of new process, It flies in the 0:10:04.440 --> 0:10:07.280 face of the rule of law. So how do you 0:10:07.320 --> 0:10:10.120 think the court is going to rule here? To be 0:10:10.160 --> 0:10:13.959 honest with you, June, I wouldn't be surprised if they 0:10:14.000 --> 0:10:19.079 find some way to continue to recognize national security and 0:10:19.120 --> 0:10:22.240 the state secrets privilege. I just think that the courts 0:10:22.280 --> 0:10:26.079 again are very reluctant to second guests the government's claim 0:10:26.080 --> 0:10:30.000 of national security. Again, they're not well positioned to make 0:10:30.080 --> 0:10:34.040 that determination. Is that even a justiciable issue for them? 0:10:34.400 --> 0:10:37.200 Is that a political question that they shouldn't be involved in? 0:10:37.360 --> 0:10:39.800 And then I think there's a pragmatic concern. At the 0:10:39.800 --> 0:10:43.120 same time, if they say that the state secreence privilege 0:10:43.120 --> 0:10:46.360 doesn't apply here, then what's the precedent that that sets 0:10:46.360 --> 0:10:49.800 in future cases? Is that a slippery slope where now 0:10:50.280 --> 0:10:53.120 other plainists are going to be able to introduce at 0:10:53.160 --> 0:10:57.600 trial evidence that implicates national security. So I think if 0:10:57.600 --> 0:11:00.400 it's a ruling in favor of Abazobaida, think it's going 0:11:00.440 --> 0:11:03.520 to be a very very narrow ruling. At the same time, 0:11:03.520 --> 0:11:06.720 I wouldn't be shocked if they come back and affirm 0:11:07.200 --> 0:11:11.679 the doctrine against Obbusaveta. This is just one of two 0:11:11.720 --> 0:11:14.480 state secrets cases that the Supreme Court is going to 0:11:14.600 --> 0:11:19.000 hear this term. Does that show that the justices want 0:11:19.080 --> 0:11:23.040 to to maybe tighten the privilege? I think so. I 0:11:23.120 --> 0:11:27.520 think so because the facts now are so extreme. Again, 0:11:27.600 --> 0:11:31.000 we're looking at individuals that have been held without trial, 0:11:31.120 --> 0:11:34.840 without criminal charges for over twenty years, and when they're 0:11:34.880 --> 0:11:41.040 attempting to challenge uh their attention and seeking to use 0:11:41.080 --> 0:11:46.800 classified information to to justify their release or justify some 0:11:46.840 --> 0:11:50.920 type of judicial remedy, the state secrets privilege is raised 0:11:51.640 --> 0:11:55.679 every time to prevent that from happening. And in addition, 0:11:55.920 --> 0:11:59.160 with respect of the state secrets privilege, whether there's really 0:11:59.160 --> 0:12:03.160 a national purity interest implicated, the courts are not in 0:12:03.200 --> 0:12:07.120 a position to second guess the US government's claim of 0:12:07.520 --> 0:12:11.080 national security. So the courts have been very deferential to 0:12:11.120 --> 0:12:15.120 the government's claim of state secrets. And so I think 0:12:15.200 --> 0:12:17.720 now the Supreme Court has has become a little weary 0:12:17.920 --> 0:12:20.560 of that and concerned that it's being abused by the 0:12:20.600 --> 0:12:24.240 government in a way again it's dist inconsistent with our 0:12:24.679 --> 0:12:28.800 constitutional values. Thanks Jimmy. That's Jimmy Grule of Notre Dame 0:12:28.880 --> 0:12:35.160 Law School. And with that, I would like to formally 0:12:35.760 --> 0:12:40.600 raise the flag and began Boston Pride. The LGBT Pride 0:12:40.600 --> 0:12:42.880 flag is just one of the many flags that you 0:12:42.920 --> 0:12:46.600 may see flying over Boston City Hall. What you won't 0:12:46.600 --> 0:12:50.280 see is the flag of a Christian group called Camp Constitution. 0:12:50.520 --> 0:12:52.920 The city has refused to allow the group to display 0:12:52.960 --> 0:12:55.720 its flag, which features a red Christian cross on a 0:12:55.760 --> 0:12:59.160 blue background. The first Circuit Court of Appeal said that 0:12:59.280 --> 0:13:02.400 was okay, but the Supreme Court has decided to take 0:13:02.400 --> 0:13:05.640 another look at the case. My guest is Richard Garnett, 0:13:05.640 --> 0:13:08.200 a professor at Notre Dame Law School and director of 0:13:08.240 --> 0:13:12.079 the Notre Dame Program on Church, State and Society. Rick, 0:13:12.160 --> 0:13:15.200 why do you think that justice is took this case? Well, 0:13:15.280 --> 0:13:17.360 there's an old joke, but it's not really a joke 0:13:17.440 --> 0:13:20.320 that the justices usually don't grant review if they're going 0:13:20.360 --> 0:13:23.400 to affirm. So my reading is that the justices are 0:13:23.400 --> 0:13:26.400 at least a substantial number of the justices believe that 0:13:26.440 --> 0:13:30.720 the decision below was inconsistent with the courts precedents on 0:13:30.920 --> 0:13:34.360 free speech in public forums and on the so called 0:13:34.400 --> 0:13:37.600 government speech doctrine. So my prediction is that they took 0:13:37.640 --> 0:13:40.200 the case in order to correct the lower court's decision 0:13:40.360 --> 0:13:43.640 and to make clear that in a public forum, religious 0:13:43.840 --> 0:13:48.199 speech by private citizens is constitutionally protected. The Christian group's 0:13:48.320 --> 0:13:52.480 argument is that the flagpole is a designated public forum, 0:13:52.760 --> 0:13:55.800 so they have First Amendment rights. Tell us more about 0:13:55.920 --> 0:13:59.160 that obviously, the government owns a lot of property, and 0:13:59.240 --> 0:14:01.720 when we talk about government property, we're not just talking 0:14:01.760 --> 0:14:05.160 about land. The idea of a forum has been extended 0:14:05.200 --> 0:14:08.080 to all kinds of speech media, so it could include, 0:14:08.240 --> 0:14:10.640 you know, a bulletin board or something like a flag 0:14:10.640 --> 0:14:13.360 pause we've seen here, and the Court has developed auctions 0:14:13.480 --> 0:14:16.439 over the last decades saying that once the government opens 0:14:16.520 --> 0:14:21.560 up space for private expression, it can't discriminate against private 0:14:21.560 --> 0:14:25.560 expression on the basis of the expression's viewpoint. So even 0:14:25.560 --> 0:14:27.640 though it's on public property, and even though you know, 0:14:27.720 --> 0:14:30.200 generally speaking, the government gets to manage its own property, 0:14:30.320 --> 0:14:33.520 once the government designates a space as being for the 0:14:33.600 --> 0:14:37.400 purpose of private speech, it then can't discriminate. And what 0:14:37.520 --> 0:14:40.320 the Christian group is saying here is that the exclusion 0:14:40.440 --> 0:14:43.600 of their flag from this designated forum, which was the 0:14:43.640 --> 0:14:49.400 flagpole and display program, that that constituted discrimination against religious speech, 0:14:49.640 --> 0:14:53.080 and that that kind of discrimination is not justified by 0:14:53.080 --> 0:14:55.480 the establishment clause, and it's not permitted by the free 0:14:55.480 --> 0:14:59.880 exercise clause. And what is Boston arguing in response to that? 0:15:00.400 --> 0:15:03.840 The other argument draws on the so called government speech doctrine, 0:15:03.880 --> 0:15:07.320 and that is that when the government is speaking for itself. 0:15:07.880 --> 0:15:10.160 It's allowed to choose its own messages. So there have 0:15:10.240 --> 0:15:12.840 been cases, for example, when a group wanted to put 0:15:12.920 --> 0:15:16.040 up a religious symbol on public property and they said, look, 0:15:16.080 --> 0:15:19.120 there's some other monuments on this property, like the Ten Commandments, 0:15:19.160 --> 0:15:21.080 so you know, you can't discriminate against us. You have 0:15:21.120 --> 0:15:22.920 to allow our message to be there too. And the 0:15:22.960 --> 0:15:25.840 court said, no, that wasn't a designated forum. That was 0:15:25.920 --> 0:15:28.440 the government speaking for itself. So this is the kind 0:15:28.440 --> 0:15:30.600 of thing that law professors love to write exams about. 0:15:30.600 --> 0:15:33.400 How do you distinguish between cases where the government is 0:15:33.400 --> 0:15:36.800 speaking for itself on its own behalf from cases where 0:15:36.800 --> 0:15:39.840 the government has just opened up space for private speech. 0:15:40.000 --> 0:15:42.400 So in this instance, the counter argument that know, the 0:15:42.560 --> 0:15:45.320 decision about what to display on the flagpole, that's the 0:15:45.400 --> 0:15:48.200 government speaking for itself, and therefore it's allowed to pick 0:15:48.200 --> 0:15:50.640 and choose, and it doesn't have to display religious speech 0:15:50.640 --> 0:15:52.560 if it doesn't want to. So it'll be a fun 0:15:52.680 --> 0:15:57.840 little exercise in deciphering Supreme Court doctrine and drawing fine distinctions. 0:15:58.000 --> 0:16:00.920 But the lower court had agreed with the government that 0:16:00.960 --> 0:16:04.520 this did not violate the Christian group's free speech rights. 0:16:05.000 --> 0:16:08.880 The Boston City flag includes the city seal, which features 0:16:08.880 --> 0:16:12.200 a Latin inscription that means God be with us as 0:16:12.240 --> 0:16:16.120 He was with our fathers. Yeah, what's the distinction because 0:16:16.280 --> 0:16:19.160 the name of God is mentioned on our money, in 0:16:19.240 --> 0:16:23.200 our courtrooms. So where they draw the line. The short 0:16:23.200 --> 0:16:25.560 answer is there isn't a line. As you point out, 0:16:25.640 --> 0:16:29.760 the government is permitted and does use religious terminology and 0:16:29.840 --> 0:16:32.280 symbols all the time, and the courts have made it 0:16:32.320 --> 0:16:35.040 pretty clear that the mere fact that the government does 0:16:35.080 --> 0:16:37.680 that doesn't violate the Establishment clause. So you know, the 0:16:37.680 --> 0:16:40.640 city of Los Angeles, which is named after Jesus's mother, 0:16:40.880 --> 0:16:42.920 doesn't have to change its name, nor does the city 0:16:42.920 --> 0:16:45.320 of Sacramento, or the city of Saint Augustine and so 0:16:45.360 --> 0:16:48.240 on and lots of times they'll be historical seals and 0:16:48.280 --> 0:16:51.400 symbols that contain religious imagery. You know, there's the Ten 0:16:51.440 --> 0:16:53.960 Commandments on the wall of the Supreme Court room itself. 0:16:54.080 --> 0:16:56.480 There is no bright line test. In years past, what 0:16:56.560 --> 0:16:58.760 the court has asked to trying to decide whether the 0:16:58.840 --> 0:17:01.920 use of a symbol goes to far is whether the 0:17:02.080 --> 0:17:05.720 use of that symbol would be perceived by the reasonable 0:17:05.800 --> 0:17:09.399 person as the government's endorsing of religion. But there's been 0:17:09.400 --> 0:17:11.679 a lot of criticism of that endorsement approach because it 0:17:11.720 --> 0:17:13.399 also doesn't seem to have a bright line. I mean, 0:17:13.480 --> 0:17:17.200 what's the difference between acknowledging religion's role in our history 0:17:17.280 --> 0:17:20.119 on the one hand, and endorsing it in a coercive 0:17:20.520 --> 0:17:23.320 or you know, establishment aryan type way on the other. 0:17:23.600 --> 0:17:26.760 So the Boston flag, there have been lawsuits by various 0:17:26.800 --> 0:17:29.440 secularist groups or atheist groups that have tried to say 0:17:29.440 --> 0:17:33.439 that various cities flags and seals are unconstitutional. Usually courts 0:17:33.600 --> 0:17:36.760 don't accept those challenges. Usually they just differ to you know, 0:17:36.880 --> 0:17:39.320 history and practice and so on. And you think that 0:17:39.400 --> 0:17:42.240 the First Circuit was incorrect in saying that it was 0:17:42.600 --> 0:17:47.199 government speech, well, I'm guessing that a majority of the 0:17:47.240 --> 0:17:50.479 justices think it was incorrect. The Court in recent years, 0:17:50.680 --> 0:17:53.880 with some exceptions obviously, but the Court has been pretty 0:17:53.880 --> 0:17:59.040 focused on enforcing free speech rules against government discrimination against 0:17:59.040 --> 0:18:02.360 religious speech, and the Supreme Court generally speaking, has been 0:18:02.480 --> 0:18:05.399 very skeptical how government speech regulations. Now, there have been 0:18:05.400 --> 0:18:09.360 some exceptions, you know, involving Texas license plate program for example, 0:18:09.480 --> 0:18:12.040 But on my reading of the te leaves here, the 0:18:12.080 --> 0:18:14.720 Supreme Court is likely to say that the First Circuit 0:18:14.760 --> 0:18:18.359 got it wrong. So, knowing what you know, why do 0:18:18.359 --> 0:18:20.960 you think the First Circuit didn't know that? Seeing that 0:18:21.040 --> 0:18:25.840 the Supreme Court has expanded religious rights, and especially now 0:18:25.880 --> 0:18:30.239 with the six member and conserving majority. Well, um, you know, 0:18:30.320 --> 0:18:34.080 in fairness to the First Circuit, Uh, it's it's it's 0:18:34.119 --> 0:18:38.879 reasonable to think that the the line, but that sometimes 0:18:38.920 --> 0:18:44.479 the line between a designated public forum and a government 0:18:44.520 --> 0:18:47.200 speech context is it is a fuzzy one, and reasonable 0:18:47.240 --> 0:18:50.639 minds can can sometimes disagree. Um. I do think that 0:18:50.720 --> 0:18:56.160 the First Circuit at present is um, you know, more 0:18:56.320 --> 0:19:02.200 attached to what we might call uh separationist values when 0:19:02.200 --> 0:19:04.800 it comes to the establishment cause. Then the Supreme Court 0:19:04.880 --> 0:19:08.359 is um, you know, there's another there's another First Amendment 0:19:08.440 --> 0:19:10.320 case from the First Circuit that the Court is hearing 0:19:10.359 --> 0:19:14.919 this term involving um um public funding of kids who 0:19:14.920 --> 0:19:17.440 attend religious schools in the state of Maine. And that's 0:19:17.440 --> 0:19:19.359 a First Circuit decision too. So it could be that 0:19:19.480 --> 0:19:22.840 just you know, there's a given how courts are made 0:19:22.920 --> 0:19:25.080 up at various points in time, that there actually is 0:19:25.119 --> 0:19:28.720 a slight difference in um philosophy about what the establishment 0:19:28.720 --> 0:19:32.639 clause means between the two courts. But I assume it's 0:19:32.680 --> 0:19:36.400 a good faith disagreement. I just think, and I'm inclined 0:19:36.440 --> 0:19:41.000 to predict that the First Circuit is gonna um be overruled. 0:19:41.000 --> 0:19:44.720 Here tell us about the other first Circuit case. Yeah, 0:19:44.760 --> 0:19:47.560 it's a case called Carson Um. I should disclose that 0:19:47.600 --> 0:19:50.280 I file a brief in it, So I'm not neutral. 0:19:51.080 --> 0:19:53.399 But this is a case that is um building on 0:19:53.480 --> 0:19:55.680 some decisions for the last few years, when the Court 0:19:56.080 --> 0:19:59.920 has held twice in the last several terms that government 0:20:00.280 --> 0:20:06.000 once they once the government decides to allow um public 0:20:06.000 --> 0:20:12.479 funding for various educational purposes, it can't discriminate against UH 0:20:14.400 --> 0:20:17.159 schools just because they're religious. It can't discriminate on the 0:20:17.160 --> 0:20:20.639 basis of religious status. So um, you know, if you 0:20:20.680 --> 0:20:24.440 have a program that allows kids to use public funds 0:20:24.520 --> 0:20:29.160 to attend private schools, you can't single out religious schools 0:20:29.160 --> 0:20:32.199 for exclusion. That's the courts suggested that in this this 0:20:32.240 --> 0:20:35.040 case out of Maine is kind of an extension of 0:20:35.080 --> 0:20:38.440 that argument. We're here. The First Circuit said, well, Maine 0:20:39.280 --> 0:20:43.560 is not discriminating against schools simply because they're religious. It's 0:20:43.600 --> 0:20:47.040 not discriminating on the basis of their religious status. Instead, 0:20:47.119 --> 0:20:51.000 what Maine is doing is looking more closely at schools 0:20:51.040 --> 0:20:55.720 and trying to decide whether a particular school has um 0:20:56.200 --> 0:20:59.159 is kind of pervasively religious, whether the money might be 0:20:59.320 --> 0:21:03.919 used for a religious purpose, or whether um for religious uses. 0:21:03.960 --> 0:21:07.280 The term that sometimes gets used and there, to my 0:21:07.560 --> 0:21:09.600 own view is that the Supreme Court is going to 0:21:09.720 --> 0:21:12.920 say that that the first Circuit did not correctly apply 0:21:13.320 --> 0:21:15.439 the Supreme Courts precedents. I think the Justices are going 0:21:15.480 --> 0:21:19.640 to say that, look, once Main decides that it's going 0:21:19.720 --> 0:21:24.520 to allow parents to use public funds to attend out 0:21:24.520 --> 0:21:28.760 of district schools, and Maine has been doing this for decades, um, 0:21:28.800 --> 0:21:32.960 they can't single out otherwise eligible, otherwise qualified religious schools 0:21:33.000 --> 0:21:35.879 for exclusion. I think they're gonna really emphasize a kind 0:21:35.880 --> 0:21:39.760 of bright line rule that once you have a choice program, 0:21:39.760 --> 0:21:42.520 religious schools get to participate. And that will be a 0:21:42.520 --> 0:21:46.640 significant development because there has been an expansion of interest 0:21:46.720 --> 0:21:49.119 in school choice in part because of the pandemic and 0:21:49.119 --> 0:21:52.359 all the school closures, and it could be relevant to 0:21:53.040 --> 0:21:59.000 some states charter school programs and mechanisms. So I I 0:21:59.040 --> 0:22:02.119 do feel like, again to instance, where the Court the 0:22:02.160 --> 0:22:04.480 fact that the Court took the case suggests to me 0:22:04.560 --> 0:22:07.080 that they're going to overrule the First Circuit, and if 0:22:07.080 --> 0:22:10.760 they do um again, the results here could probably be 0:22:10.840 --> 0:22:14.639 more significant than the results in the Flagpole case. I 0:22:14.680 --> 0:22:18.080 feel like it would be shocking if they didn't overrule 0:22:18.160 --> 0:22:21.400 the First Circuit in the main case. And I'm surprised 0:22:21.400 --> 0:22:23.800 at the First Circuit looking at the way the Supreme 0:22:23.800 --> 0:22:27.600 Court has been handling different cases involving funding, like the 0:22:27.640 --> 0:22:32.840 Playground case. Why they didn't rule differently. Well, again, I 0:22:33.280 --> 0:22:36.560 do think there's a um that the First Circuit judges 0:22:36.840 --> 0:22:41.960 are more inclined to kind of a stricter separation view 0:22:42.280 --> 0:22:45.240 of how the First Amendments should work. And in fairness 0:22:45.320 --> 0:22:48.879 to them, um, the Supreme Court did say in the 0:22:48.960 --> 0:22:51.280 in the Playground case you're talking about, that's called Trinity 0:22:51.400 --> 0:22:55.800 Lutheran And in the more recent Montana case, the Court 0:22:55.920 --> 0:23:01.600 did the majority um invoke this anction between discrimination on 0:23:01.600 --> 0:23:05.399 the basis of religious status as opposed to discrimination on 0:23:05.440 --> 0:23:09.800 the basis of religious use or activity. So the justices 0:23:09.840 --> 0:23:13.399 did make that distinction relevant. Now, there were some of 0:23:13.400 --> 0:23:16.720 the justices in concurring opinions, especially justice courses, who said, well, 0:23:16.720 --> 0:23:19.560 that distinction doesn't make any sense. But the First Circuit 0:23:20.160 --> 0:23:25.679 did um have you know it applied to distinction that 0:23:25.680 --> 0:23:29.480 the Supreme Court had itself invoked. My own view is 0:23:29.520 --> 0:23:32.000 that it didn't apply it correctly, And I'm also inclined 0:23:32.000 --> 0:23:34.080 to agree with Justice Corsets that the distinction doesn't make 0:23:34.119 --> 0:23:37.720 much sense. So this might the big news in the 0:23:37.720 --> 0:23:43.160 Carson case could be if the Court um says, look, um, 0:23:43.280 --> 0:23:44.800 we're not going to get into We're not going to 0:23:44.880 --> 0:23:48.320 get in the business of drawing, um hair splitting distinctions 0:23:48.359 --> 0:23:52.960 between religious status or schools that happened to actually also 0:23:53.000 --> 0:23:55.360 have religious content. We're just going to say you can't 0:23:55.400 --> 0:23:59.040 discriminate on the basis of religion once you open up 0:23:59.040 --> 0:24:02.160 a choice program. And that strikes me as um kind 0:24:02.160 --> 0:24:04.879 of a more coherent approach. But obviously there will be 0:24:04.920 --> 0:24:08.920 those who will say, no, the you know it can't 0:24:09.000 --> 0:24:11.800 it can't be right that the free exercise clause requires 0:24:11.840 --> 0:24:15.119 the government to fund religious education. I think that was 0:24:15.280 --> 0:24:18.360 kind of the view that was underlying the First Circuit's opinion. 0:24:18.440 --> 0:24:21.200 But here too, I mean, in both of these cases, 0:24:21.240 --> 0:24:24.960 although I think the First Circuit will lose, they there 0:24:25.000 --> 0:24:32.520 were um distinctions and doctrines in the Supreme Courts decisions 0:24:32.520 --> 0:24:34.919 that that provided them a basis for the reasoning that 0:24:35.000 --> 0:24:38.840 they that they employed. What other cases involving religion is 0:24:38.880 --> 0:24:41.560 the court taking up this term. The one that comes 0:24:41.560 --> 0:24:44.000