This Report summarizes opinions issued on March 3, 4, and 7 2022 (Part I); and cases granted review on February 28, 2022 (Part II).

Opinion: United States v. Zubaydah, 20-827

United States v. Zubaydah, 20-827.  In a 7-2 decision, the Court held that the state secrets privilege required the dismissal of a discovery request seeking information regarding a detainee’s alleged mistreatment at a foreign “black site” in the aftermath of the September 11, 2001 terrorist attacks.  In March 2002, Pakistani forces working with the CIA captured Abu Zubaydah, who was believed to be a senior al Qaeda lieutenant.  Zubaydah was transferred to a detention site in Thailand, where, over the course of several months, he was subject to “enhanced interrogation” techniques, which included waterboarding and sleep deprivation. In December 2002, Zubaydah was moved and again subjected to enhanced interrogation techniques at a different detention site, which is the subject of this matter. Although the government has never confirmed its location, Zubaydah and many others believe that the site was in Poland.  In 2006, Zubaydah was moved to Guantanamo Bay, where he remains to this day. In 2010, lawyers representing Zubaydah filed a criminal complaint in Poland asking prosecutors there to hold accountable those responsible for his alleged mistreatment in that country.  Although this complaint initially stalled because the United States refused to cooperate, the Polish prosecutors reopened their investigation in 2015. After the United States again refused to cooperate, the Polish prosecutor invited Zubaydah to submit evidence that would aid their investigation. In response, Zubaydah’s lawyer filed an ex parte discovery application pursuant to 28 U.S.C. §1782, which allows a district court to order a person in its district to provide testimony or documents “for use in a proceeding in a foreign . . . tribunal, including criminal investigations conducted before formal accusation.” Zubaydah sought to serve subpoenas on, and take the depositions of, two CIA contractors who had designed the enhanced interrogation program and had implemented it with respect to Zubaydah. (These contractors had previously testified regarding their treatment of Zubaydah, but had used code names for the detention sites that did not identify the country in which they were located.)

The government intervened and sought to quash the subpoenas on the basis that disclosure of the information sought would violate the state secrets privilege, which permits the government to prevent disclosure of information when that disclosure would harm national security interests.  In particular, the government submitted a declaration from the Director of the CIA stating that the contractors’ testimony would confirm or deny whether the detention site at issue was in Poland, and thus answer the related (and more sensitive) question of whether Poland had cooperated with the CIA. The district court dismissed Zubaydah’s discovery application, but the Ninth Circuit reversed in part. Noting that the European Court of Human Rights had already concluded that the detention site was in Poland and that the CIA contractors had already testified or wrote about much of their treatment of Zubaydah, the Ninth Circuit held that the state secrets privilege did not apply to this information because it was already publicly available. The Ninth Circuit also concluded that, because the CIA contractors were “private parties,” their disclosures would not tend to amount to a confirmation or denial by the government itself. In an opinion by Justice Breyer, the Court reversed.

The Court first set forth the process to be followed when the government seeks to rely upon the state secrets privilege.  Building on the blueprint established in United States v. Reynolds, 345 U.S. 1 (1953), the Court held that, to assert the privilege, the government must initially submit to the court a “formal claim of privilege, lodged by the head of the department which has control over the matter, after actual consideration by that officer.”  A court “itself must determine whether the circumstances are appropriate for the claim of privilege.” Then, “after satisfying itself that the Government has offered a valid reason for invoking the privilege,” a court must take into account a party’s showing of necessity for the evidence, which “will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.” The Court stressed, however, that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”

The Court concluded here that, because the evidence sought by Zubaydah would confirm or deny whether the “black site” was in Poland, the evidence sought by Zubaydah fell within the state secrets privilege.  The Court rejected the argument that this evidence fell outside of the privilege merely because it had entered the public domain through unofficial sources. The Court noted that confirmation by the government “is different in kind from speculation in the press or even by foreign courts because it leaves virtually no doubt as to the veracity of the information that has been confirmed.” Similarly, the Court assigned no significance to the fact that Zubaydah sought information from “private parties”; the Court instead recognized that, given their official roles in Zubaydah’s treatment, the contractors’ “confirmation (or denial) of the information Zubaydah seeks would be tantamount to a disclosure from the CIA itself.” In addition, the Court explained that, because counterterrorism efforts often rely on sensitive relationships with other countries, it was integral that the government maintain its confidentiality in circumstances such as those in this case.  Doing so would not only preserve past and present relationships, the Court observed, but would also ensure that other countries would be willing to cooperate in the future.

In a section joined only by Chief Justice Roberts and Justice Kagan, Justice Breyer analogized the application of the state secrets privilege to the Freedom of Information Act (FOIA) and its exemption for publicly available information.  Although he acknowledged that FOIA was an “imperfect” analogy, Justice Breyer noted that the FOIA exemption applied only when information had been “officially acknowledged” by the agency from which the information is sought. Justice Breyer used that logic to bolster the proposition that disclosure by the CIA contractors “could be harmful in ways that disclosure by other sources would not.”

A six-Justice majority agreed that the case should result in dismissal. Writing for a four-Justice plurality on this issue, Justice Breyer explained that, in addition to the government having established that the state secrets doctrine was implicated in this case, Zubaydah had failed to show that he had a pressing need for the information he requested.  Justice Breyer noted that much of the information Zubaydah sought was already in the public domain through other sources such as the contractors’ prior testimony, and that the government had provided Zubaydah, despite his current detention at Guantanamo, the opportunity to submit to the Polish prosecutors a declaration relating to his treatment.  Moreover, because any discovery regarding Zubaydah’s treatment during the timeframe at issue would tend to confirm or deny the involvement of Poland, Justice Breyer rejected the notion that the case should be remanded so that discovery could be had on that topic.

Justice Thomas, joined by Justice Alito, concurred in part. Justice Thomas took issue with how the majority determined the procedures for assessing a claim under the state secrets privilege. Rather than making an initial determination of whether the government had “provided a reasonable explanation” for why the requested information could harm national security, Justice Thomas argued that under Reynolds a court should first assess the party’s need for the requested discovery.  And if the party’s need is “dubious,” “a formal claim of privilege ‘will have to prevail’ without judicial inquiry into the basis for the Government’s claim.” Justice Thomas stressed that, only if a party had made a “strong showing of necessity” would dismissal at the outset not be required.  Even then, in camera review would be a “last resort,” and courts must afford the “utmost deference” to the Executive’s assessment of national security risks. Although he disagreed with how the majority conducted its analysis, Justice Thomas agreed that the case should be dismissed, but solely on the basis of a lack of showing of need.

Justice Kavanaugh, joined by Justice Barrett, wrote separately to further clarify how the procedures for assessing the state secrets privilege should work in practice. Although Justice Kavanaugh agreed with the majority that the government bore the burden to first assert the privilege, he stressed that a court’s “threshold judicial inquiry” of that invocation would not be “demanding.”  He affirmed that, if a party had only a “dubious” need for the information requested, the matter would end without further inquiry.

Although Justice Kagan agreed with the majority’s analysis and conclusion that disclosure of the requested information would violate the state secrets privilege, she argued in a separate opinion that the proper disposition of the case should have been to remand the matter so that Zubaydah could obtain information regarding his treatment during the timeframe in question. Justice Kagan believed that the information sought regarding Zubaydah’s treatment, which was unclassified, could be segregated from the classified information regarding the location where that treatment occurred.  And to the extent that Zubaydah’s discovery requests as written implicated classified location information, Justice Kagan argued that Zubaydah should have an opportunity on remand to amend his requests to remove any specific reference to Poland.

Justice Gorsuch, joined by Justice Sotomayor, dissented.  Given the declassification of information relating to Zubaydah’s treatment, Justice Gorsuch disputed the notion that what happened to Zubaydah, including the location of his treatment, remained a state secret.  Although Justice Gorsuch acknowledged the authority vested in the Executive over foreign affairs, he noted that this case involved Congress’s decision, through 28 U.S.C. §1782, to authorize federal courts to order discovery in cases such as the ongoing Polish prosecution here. Justice Gorsuch asserted that the Executive’s authority to withhold evidence due to its Article II authority must thus be “carefully assessed against the competing powers Article I and III have vested in Congress and the Judiciary.” Justice Gorsuch therefore took issue with the deference that the majority allotted to the Executive’s national security assessments. Justice Gorsuch agreed with the majority that, when the government seeks to invoke the state secrets privilege, it must first bear the burden of showing a “reasonable danger” of harm to national security interests. Unlike the majority (and Justice Thomas), however, Justice Gorsuch asserted that a reviewing court “may—and often should—review the evidence supporting the government’s claim of privilege in camera,” even before critically assessing a party’s need for the evidence. Justice Gorsuch also suggested that, even where the government properly invokes the privilege, a court should consider options other than dismissal, including using protective orders and other security procedures to allow sensitive governmental information to be shared

[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]