Legal Docket - Water wars at the Supreme Court

NICK EICHER, HOST: It’s Monday, October 11th and we’re so glad you’ve joined us for today’s edition of The World and Everything in It. Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

The U.S. Supreme Court term began last Monday, the first Monday in October.

CURLEY: (gavel) The Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, Oyez, Oyez. All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court.

EICHER: Then Chief Justice John Roberts made a few announcements.

ROBERTS: I'd like to begin by noting that Justice Kavanaugh will be participating in the argument today, remotely.

For good reason: Justice Brett Kavanaugh having tested positive for Covid days before.

Then the Chief Justice introduced the woman who called the court to order. She would be the court’s 11th marshal.

ROBERTS: I'm also pleased to welcome Gail Curley as the new Marshal of the court. Marshal Curley retired from the United States Army this summer, where she held the rank of colonel and was most recently chief of the National Security Law division of the Judge Advocate General.

REICHARD: Next, the chief announced the first case of the term:

ROBERTS: We will hear argument first this morning in original case 143, Mississippi against Tennessee.

You heard him say “original case.” That means a lawsuit filed directly at the Supreme Court. No winding through the lower courts first, as most litigation does. It means one other thing: That the high court also acts as fact-finder in these cases. One type of “original case” is when a state is a party to the lawsuit.

EICHER: As in this case: Here, Mississippi and Tennessee are fighting over water. Specifically, groundwater that lies on the border between the states, in the Memphis Sand Aquifer.

Mississippi says that Tennessee pumped groundwater from that aquifer to use across the border in Memphis. That, Mississippi argues, violates its state sovereignty and about $600 million in damages ought to square things up.

REICHARD: For its part, Tennessee does a virtual eye roll. Tennessee says Mississippi is using the same arguments that failed in other fights over water. Earlier court decisions say that groundwater is an interstate resource and can’t be apportioned the way Mississippi wants. Usually, water disputes are handled so that states are ordered to share the water and use it reasonably so as not to waste it. The legal term of art for that is “equitable apportionment.”

EICHER: This dispute’s been bouncing around for a long while. In 2015, the Supreme Court appointed a special master to look into the matter and report back.

He finally did that last year. The Special Master recommended the court dismiss Mississippi’s case.

Obviously, that’s not the result Mississippi hoped for. So now its lawyers take a different tack: in addition to damages, they also want the court to say Mississippi has sole sovereign authority over the groundwater.

REICHARD: Justice Clarence Thomas asked the first question to Mississippi’s lawyer, John Coghlan:

THOMAS: Couldn’t Tennessee or Arkansas or Missouri all make the same argument that whenever you pump, you’re causing similar problems for them?

That incredulity didn’t let up. Listen to Justice Sonia Sotomayor:

SOTOMAYOR: You've been litigating this case for over 16 years. You started in the Fifth Circuit. You went to the district court, you went to the circuit court; both courts told you you've got to seek equitable apportionment. You come here in 2010. We tell you the same thing. Now this is the third time you've done this. This -- this time you explicitly disclaim any claim for equitable apportionment. When is enough enough?

Coghlan did his level best to argue that damages is the right way to fix this particular dispute. Not that “equitable apportionment” doctrine.

And if the high court dismisses the case as the special master recommended? Then Coghlan asked that Mississippi be able to amend its complaint to argue equitable apportionment next time, no matter how long this case drags on.

The justices didn’t let the other side completely off the hook, though. Some worried about setting a precedent that could spawn more lawsuits over groundwater. Here’s Justice Stephen Breyer:

BREYER: I’m nervous. Maybe every state will start, all start suing each other—except Alaska and Hawaii. Maybe it’s better left to compacts or Congress.

Maybe it is. We’ll soon find out what the justices decide.

Now for the final argument we’ll cover today.

ROBERTS: We will hear argument in case 20-827. United States versus Zubaydoo. Mr. Fletcher?

A little aside here: I don’t think the Chief Justice checks with the parties about how to pronounce their names before he announces their names.

He was close, but this case is United States versus Zubaydah.

This case is quite somber. The facts arose after the terrorist attacks of 9/11 and the US government was chasing down suspected terrorists.

To that end, the CIA established what’s known as “black sites” in cooperating foreign countries. The CIA controls these facilities and the U.S. government uses them to detain enemy combatants.

It’s a matter of perspective whether you call what happened there “torture” or “enhanced interrogation techniques.”

Zubaydah goes with the former—he calls it “torture.” As did a 2014 Senate intelligence committee, as well as the European Court of Human Rights.

The Senate report is classified, although a summary of it is open to the public. It describes specific instances of waterboarding, such as Zubaydah’s going “completely unresponsive, with bubbles rising through his open, full mouth.”

He was the first prisoner detained under the program back in 2002, at a “black site” in Poland. The CIA considered him a former associate of Osama bin Laden. Later, the CIA revoked that assessment.

Polish prosecutors are investigating CIA conduct in their country. Zubaydah intervened in that investigation. He wants courts to compel the US government to disclose information about his time at the “black site.”

The government says no way, asserting the “state-secrets privilege.” That lets the government resist orders by a court to disclose information during litigation, if there’s a reasonable danger that the disclosure would harm national security.

The difficulty here is that some information about Zubaydah’s treatment in Poland is declassified. Some information is not.

How to sort that out is the question.

Listen as Justice Thomas asks the lawyer for the government, acting Solicitor General Brian Fletcher, about letting two CIA contractors testify:

THOMAS: The two contractors have testified about the treatment of detainees before, right?
FLETCHER: That's correct, Justice Thomas.
THOMAS: So why couldn't they also testify here? What difference would it make?
FLETCHER: It would make a difference because of the critical difference between the context of the testimony and what they would be conveying and because this proceeding is all about revealing the involvement of foreign partners, it's fundamentally different from the testimony that has been given in the past.

Fletcher argued that compelling these two CIA contractors to testify in this case would breach trust between the United States and other nations. That’s a matter of national security, under the ambit of the executive branch. Courts ought not second guess it.

Justice Kagan seemed to agree at least in part on giving deference to CIA director’s assessment of national security risks:

KAGAN: Courts are going to know less about that than the CIA director does.

Lawyer for Zuybayah, David Klein, tried to skewer the government’s argument of “secret” anything. Then Justice Alito followed up.

KLEIN: We’re not talking about a secret anymore. We’re talking about a governmental wish not to assist this Polish investigation.

ALITO: I mean, the subtlety of this is somehow escaping me. You claim you have everything and yet you have a need for this additional information. It does seem to me all you want is a more official link from these government contractors that what you say happened occurred in Poland and not in some other location. Otherwise, I don't see what need you have for any of what you're asking for.

The justices overall seemed to lean in the government’s direction. Chief Justice Roberts told Klein, Zubaydah’s lawyer, that sure, everybody may know about this. Maybe it’s no secret at all:

ROBERTS: But you don't have the United States Government acknowledging that. And the United States Government says this is critically important because our friends, allies, intelligence sources around the world have to believe that we keep our word, and our word was this is secret. And so they may be -- you know, the CIA director may be the last person in the world to -- to have said this is where the site is, but that's what's important, what the United States has revealed, not what you find.

Some justices cast about for a solution that doesn’t involve state secrets or worries about how much deference to give the CIA.

Justice Stephen Breyer queried lawyer Klein, for Zubaydah:

BREYER: Why don't you ask Mr. Zubaydah? Why doesn't he testify? Why doesn't Mr. Zubaydah -- he was there. Why doesn't he say this is what happened?

Klein answered that his client cannot testify, because he’s being held incommunicado at Guantanamo, where he’s been since 2006.

So Justice Sonia Sotomayor asked the government lawyer about that:

SOTOMAYOR: We want a clear answer: Are you going to permit him to testify as to what happened to him those dates without invoking a state secret or other privilege? Yes or no. That’s all we’re looking for.

Fletcher answered, Zubaydah could communicate on the same terms as anyone else: with his communications screened by security for classified information and other security risks.

So now Fletcher will file a follow up brief about the protocols for such testimony.

Meaning, this case isn’t over.

CURLEY: (gavel) The honorable court is now adjourned until Tuesday, the 12th of October, at 10 o’clock. (gavel)

And that’s this week’s Legal Docket!

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