United States v. Zubaydah
595 U. S. ____ (2022) (2022)
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Rule of Law:
The state secrets privilege permits the government to prevent disclosure of information that would harm national security, even if the information has already entered the public domain through unofficial sources. Official confirmation or denial of sensitive activities, such as clandestine cooperation with a foreign intelligence service, poses a distinct national security risk sufficient to justify invoking the privilege.
Facts:
- In the aftermath of the September 11, 2001 attacks, the CIA captured Abu Zubaydah, whom it believed to be a senior al Qaeda lieutenant.
- In March 2002, Zubaydah was captured in Pakistan and transferred to a CIA detention site where he was subjected to 'enhanced interrogation' techniques, including waterboarding.
- In December 2002, the CIA transferred Zubaydah to a different detention site, which he and numerous public sources allege was located in Poland.
- Details about Zubaydah's detention, his treatment, and the alleged Polish location have been widely publicized through a U.S. Senate report, European Court of Human Rights findings, and testimony from former CIA contractors James Mitchell and John Jessen.
- The U.S. government has never officially confirmed or denied the existence of a CIA detention facility in Poland or its cooperation with Polish authorities.
- In 2010, Zubaydah's lawyers filed a criminal complaint in Poland seeking to hold Polish nationals accountable for their alleged involvement in his mistreatment.
- Polish prosecutors' requests for information from the U.S. government were repeatedly denied on national security grounds.
Procedural Posture:
- Abu Zubaydah filed an ex parte application in the U.S. District Court for the Eastern District of Washington under 28 U.S.C. § 1782, seeking to depose two former CIA contractors for use in a Polish criminal investigation.
- The U.S. Government intervened and filed a motion to quash the subpoenas, formally asserting the state secrets privilege.
- The District Court granted the government's motion, quashed the subpoenas, and dismissed Zubaydah's discovery application.
- Zubaydah (appellant) appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit, where the U.S. Government was the appellee.
- A divided panel of the Ninth Circuit affirmed in part and reversed in part, holding the state secrets privilege did not cover publicly known information and remanding for limited discovery to proceed.
- The U.S. Government (petitioner) filed a petition for a writ of certiorari with the U.S. Supreme Court, which was granted.
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Issue:
Does the state secrets privilege prevent discovery from former CIA contractors regarding the existence and details of a CIA detention site in Poland, when the existence of such a site has been widely reported in public sources?
Opinions:
Opinion of the Court - Breyer, J.
Yes, the state secrets privilege prevents discovery regarding the CIA detention site. The privilege can bar the confirmation or denial of information even if it has entered the public domain through unofficial channels. The Court reasoned that official confirmation by former insiders like the CIA contractors would be tantamount to a disclosure from the CIA itself. Such a disclosure would pose a reasonable danger to national security by damaging the trust on which clandestine relationships with foreign intelligence services depend. Because Zubaydah’s discovery requests were framed in a way that any response would necessarily confirm or deny the existence of a facility in Poland, the privilege applies to all the requested information. Furthermore, Zubaydah's need for the location information is not great, especially as his counsel stated the primary goal was to learn about his treatment. The Court concluded that the entire discovery application must be dismissed, as the privilege blocks its sole object. (This opinion was for the Court as to the application of the privilege, but only for a plurality as to the remedy of dismissal).
Concurring in part and concurring in the judgment - Thomas, J.
Yes, the privilege applies and the application should be dismissed. This conclusion should be reached by first applying the framework from United States v. Reynolds, which requires assessing the requesting party's need for the information. Because Zubaydah has only a 'dubious showing of necessity'—as the discovery is for a foreign prosecution and he has alternative means to provide evidence (his own testimony)—the government's formal claim of privilege must prevail without the court even scrutinizing the government's national security justifications.
Concurring in part - Kavanaugh, J.
Yes, the privilege applies. The Reynolds framework requires a threshold, non-demanding judicial inquiry to see if a 'reasonable possibility' of state secrets involvement exists. Once that is met, as it is here, the court must accept the privilege claim if the requester's need is 'dubious.' A court's review in state secrets cases must be deferential to the Executive Branch from start to finish, and the privilege is absolute once it is found to apply.
Concurring in part and dissenting in part - Kagan, J.
No, the entire suit should not be dismissed. While the state secrets privilege rightfully applies to protect the classified location of the detention site, it does not apply to the details of Zubaydah's treatment, which the government has conceded is no longer classified. The proper course is not dismissal, but to remand the case so the District Court can segregate the privileged location information from the unprivileged treatment information, allowing discovery to proceed on the latter, likely through the use of code names as has been done in other proceedings.
Dissenting - Gorsuch, J.
No, the government's claim of privilege should not be accepted, and the case should not be dismissed. Courts must exercise independent judgment and not grant 'utmost deference' to the executive's claim. The location of the CIA site in Poland is an open secret, not a state secret, and the government's assertion of harm is conclusory. Even if the location were a valid secret, discovery concerning Zubaydah's treatment—which is declassified—should be allowed using familiar judicial tools like protective orders and code names to protect against inadvertent disclosures. Dismissing the suit allows the government to use the privilege to shield itself from embarrassment for past misdeeds rather than to protect genuine national security interests.
Analysis:
This decision significantly strengthens the state secrets privilege by affirming its application to publicly known information where official confirmation would harm national security. It gives substantial deference to the executive's assessment of such harm, particularly regarding the maintenance of clandestine relationships with foreign partners. The Court's choice to dismiss the entire suit, rather than allowing for amended discovery requests focused on unclassified information, sets a high bar for litigants in cases touching on national security. The fractured opinions, however, reveal a deep judicial divide over the proper scope of judicial review of privilege claims and whether dismissal is a necessary remedy when less drastic alternatives exist.
