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In agreeing that the government could withhold this report, the Supreme Court announced several principles that guide state secrets cases. Among other things, the Court explained that information should remain a secret when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

At the same time, the Supreme Court required the government to clear certain procedural hurdles in order to prevent it from invoking this state secrets privilege too often. Among other things, the government may not claim this privilege unless there is a “formal claim of privilege, lodged by the head of the department which has control over the matter.” This senior government official must also engage in “actual personal consideration” of whether the privilege should be invoked — they cannot delegate this task to a subordinate.

The Court noted that the privilege is strongest when a party could obtain the information they seek through other means, and weakest when the opposite is true. “Where there is a strong showing of necessity,” according to Reynolds, “the claim of privilege should not be lightly accepted.” Nevertheless, the Court added that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”

Though the Supreme Court did not make this point explicitly in Reynolds, the judiciary is often in a position of weakness when the government claims that certain information must remain a state secret. The trial judge in Reynolds, for example, ordered the government to turn over the contested Air Force report so that the judge could review it in private to determine if it contained material that should be withheld. But the government refused to do so.

Ultimately, if the federal government simply insists that it will not turn over certain information no matter what, there’s not much that the courts can do.

The final chapter of the Reynolds case, moreover, offers a cautionary tale about what can happen if the courts are too quick to trust the government in state secrets cases. When the accident report at the heart of the case was declassified in the 1990s, the public learned that it did not even mention the equipment that the Air Force wanted to keep secret.

According to a Senate Judiciary Committee report, however, it did “contain embarrassing information revealing Government negligence (that the plane lacked standard safeguards to prevent the engine from overheating).”

What does all of this mean for Zubaydah?

The factors laid out in Reynolds offer fodder to both parties in the Zubaydah case. On the one hand, it’s hard to argue that at least some of the information sought by Zubaydah would “expose military matters which, in the interest of national security, should not be divulged,” when that information is already widely known and was already disclosed in the unclassified summary of a Senate Intelligence Committee report.

At the same time, it’s unclear that Zubaydah can make a “strong showing of necessity.” Why does he need Mitchell and Jessen to reveal information that is already in the public record?

Judge Paez’s opinion for the appeals court drew a line between information that is already known and information that remains secret. Some of the information sought by Zubaydah, Paez’s court ruled, such as “the identities of foreign nationals who work with the CIA,” should not be disclosed because doing so “risks damaging the intelligence relationship [between the United States and Poland] and compromising current and future counterterrorism operations.”

At the same time, already-public information such as “the fact that the CIA operated a detention facility in Poland in the early 2000s; information about the use of interrogation techniques and conditions of confinement in that detention facility; and details of Abu Zubaydah’s treatment there” could potentially be disclosed — although, even under Paez’s opinion, it’s not clear if Zubaydah is entitled to any of the information he seeks.

If a trial judge determines that there is no way to reveal the less sensitive information sought by Zubaydah without also disclosing genuine state secrets, then, under Paez’s approach, all of the information should be suppressed.

At this point, you may be wondering what all this means. Frankly, it is unclear what’s actually at stake in this case, at least for Zubaydah, if the only information he’ll be able to obtain is stuff that is already available to the public.

But even if Zubaydah has little chance of walking away with much new information about who is responsible for his torture, the case could have profound implications for future cases where the government wishes to keep certain information secret.

The federal government seeks an extraordinary level of judicial docility whenever it raises a state secrets claim. Its brief is gravid with phrases like “utmost deference,” and suggests that only executive branch “officials possess ‘the necessary expertise’ to make the required ‘[p]redictive judgment’ about risks to the national security.”

These are not frivolous arguments. The Court has historically warned judges against intruding too far into questions of foreign policy or national security — although the Court’s current 6-3 conservative majority has not always heeded these warnings since Democratic President Joe Biden took office.

But, as the Court emphasized in Reynolds, “a complete abandonment of judicial control would lead to intolerable abuses.” Imagine a world where the government can commit any atrocity, then keep the truth of that atrocity secret forever.

This is why state secrets cases are hard. They require judges, often acting on imperfect information, to make difficult choices about when the interests of justice overcome fears about national security.

But Zubaydah also isn’t a typical state secrets case. It’s a case about whether the government will reveal horrible truths that are already largely known.

In the meantime, people will continue to die in car accidents, with 94 percent of fatal car crashes caused by human error.

Tesla, on the other hand, has rolled out autonomous features much more quickly. In September, Tesla CEO Elon Musk announced that drivers with a record of safe driving and who paid for the feature could request permission to beta test its “Full Self-Driving” technology. It includes more advanced driver assistance features than Autopilot, Tesla’s existing semi-autonomous feature, which helps drivers steer, brake, and accelerate within a lane. The company claims that the hardware — but not the software, which is still being tested — in new Teslas is capable of “full self-driving in almost all circumstances” and is “designed to be able to conduct short and long distance trips with no action required by the person in the driver’s seat.” According to the National Highway Traffic Safety Administration (NHTSA), there are currently no fully automated or self- driving cars for sale, and such technology is years away.

The head of the National Transportation Safety Board has said that Tesla should fix existing safety deficiencies before rolling out the new tech. Meanwhile, other Tesla critics say that names like “Autopilot” and “Full Self-Driving” cause people to place more faith in the technology than they should, erroneously taking their hands off the wheel or not paying attention.

This dissonance has resulted in tragedy. In August, the NHTSA opened a formal investigation into Autopilot after crashes involving Teslas and emergency vehicles (12 so far). The agency has also opened special investigations into accidents suspected to have happened while advanced driver assistance systems were engaged and which have resulted in 12 deaths.

Musk maintains that, despite the deaths, these cars are 10 times safer than regular cars.

“Even if you, for argument’s sake, reduce fatalities by 90 percent with autonomy, the 10 percent that do die with autonomy are still gonna sue you,” Musk told Swisher at Code. “The 90 percent that are living don’t even know that that’s the reason they’re alive.”

There’s some truth to that. By taking humans out of the equation, autonomous cars have the potential to save lives and alleviate incalculable social and economic losses. As NHTSA put it, “Fully automated vehicles that can see more and act faster than human drivers could greatly reduce errors, the resulting crashes, and their toll.”

The key is getting to that future quickly without jeopardizing it by causing the very harm you’re attempting to stop.

Two roads traveled

If the goal is to get autonomous driving assistance to the masses, Tesla is closer. If the goal is to have cars that safely drive themselves, Waymo is winning.

“Tesla is doing high-altitude flights or near- space flights, and Waymo is landing on the moon,” Mike Ramsey, vice president at research firm Gartner, told Recode. “One is trying to achieve something that’s far harder to do than the other. But that’s not to say that the high-altitude flights can’t keep getting higher and higher.”

In other words, while Tesla probably won’t be delivering a fully autonomous vehicle anytime soon — despite its misleading naming — it could incrementally get better and better assistance features that would eventually lead to true self-driving capabilities.

Tesla vehicles are considered to be at level 2 on the engineering society SAE International’s automation scale. That means Tesla’s system requires constant driver supervision, even if the assistance features are handling some of the steering and braking. Waymo vehicles are level 4, meaning the car can drive itself under limited geographic conditions and doesn’t need driver supervision. However, the technology that powers them is not ready for mass-market use outside of its test areas.

Waymo’s hardware is much more robust than Tesla’s. It uses several redundant sensor systems, including lidar, radar, and cameras, to create a real-time picture of where it’s operating. The company also maps areas ahead of time by having human drivers manually drive the vehicles through them. Meanwhile, Tesla vehicles rely exclusively on cameras and ultrasonic sensors.

“The more sensors you have, it adds to the complexity of the system, but it also makes it way safer,” Ramsey said.

Cameras aren’t as accurate at gauging distance as lidar or radar, and their ability to map an area can be impaired by everyday hazards like snow, dust, or darkness. However, cameras are a lot cheaper, and that matters when it comes to getting this technology into consumers’ hands.

You can purchase a souped-up Model 3 Tesla for around $75,000. However, experts don’t think Tesla vehicles could be fully autonomous with their current hardware, and will likely need to incorporate other technology like lidar to get there. We don’t know the exact price of Waymo vehicles — which are Chrysler Pacificas and Jaguar I-Paces outfitted with Waymo’s sensors and autonomous driver tech — but the company’s former CEO previously said it “cost no more than a moderately equipped Mercedes S-Class,” which has a price tag of about $180,000. Waymo says its costs have come down significantly with the latest generation.

But by selling its vehicles to the general public, Tesla is able to collect lots of real-world driving data that will be useful in helping solve autonomous driving challenges. Raj Rajkumar, a professor of electrical and computer engineering at Carnegie Mellon University and an autonomous vehicle pioneer, calls Tesla’s data collection an “incredible advantage” but warns that data is “part of the answer, but it’s not the entire answer.” Still, he thinks Waymo ought to collect more of it from regular drivers in regular conditions.

“We should be driving them whenever they can drive themselves and, when they do not, humans drive themselves,” Rajkumar said. “And for a time we collect experience. We understand what works, what does not work, and we refine.”

Tesla’s relatively wide reach also means rolling out a truly autonomous vehicle, when they eventually make one, will be a lot easier.

“Tesla’s strategy is interesting because, if it works, it could be a lot more scalable. They could launch a lot faster in other cities than their competitors could,” Tasha Keeney, an analyst at Ark Invest, which has a large stake in Tesla, said. Keeney said a faster rollout of autonomous vehicles will hasten a safer driving future, but it won’t be without cost.

“Are computers better than humans at driving? I think yes,” she said. “Will there be mistakes along the way? Yes.”

What’s next for autonomous vehicles?

Experts estimate that we could have level 3 or 4 cars for sale within the next 10 years. But in the meantime, it’s important not to overlook the benefits that the pursuit of autonomous cars has already wrought. Cars will soon be able to reliably take over in some instances, say, on the highway — where the lanes are clearly marked and the rules are pretty clear — but humans might take over on city streets.

Already a number of advanced driver assistance features are showing up on regular vehicles. Automatic emergency braking, technology that automatically slows or stops the car before it hits an object, has been shown to reduce injuries and fatalities and will be standard on most vehicles sold in the US next year. Consumers can expect more of these features to spill over from the quest for autonomous vehicles in the next few years.

“We should all stop thinking in terms of something magical will happen and all of a sudden cars will become self-driving,” Rajkumar said. Rather, the shift will happen feature by feature, after many tests and improvements. “That last change will be so incremental you won’t be able to realize it happened over the last five to 10 years.”

When cars do become fully autonomous, there are also benefits beyond safe driving. Keeney said autonomous technology would also greatly reduce the cost of travel because of cars’ increased utilization as taxis, without the expense of a driver. “It’ll give a lot of people access to very inexpensive point-to-point travel, which could totally change our lives and how we get around.”

In the meantime, perhaps the path forward for self-driving cars isn’t a binary choice at all. We’ll likely see a spectrum of improvements from many car companies as they incorporate more and more driver assistance features. And although in the near term the tech might not be the self-driving future we were promised, it will be better than nothing.

“We should not lose sight of the benefits the technology can bring,” Rajkumar said. “It takes time, but we’ll eventually get there.”

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