Secrecy: State Secrets Privilege

Supreme Court to Hear State Secrets Case Involving Guantanamo Detainee

By Rohini Kurup
Thursday, June 10, 2021, 11:42 AM

On April 27, the Supreme Court agreed to take up United States v. Abu Zubaydah, which considers whether a Guantanamo Bay detainee can obtain information about his treatment while a detainee in CIA custody. The detainee is Zayn al-Abidin Muhammad Husayn—better known as Abu Zubaydah—an alleged former associate of Osama bin Laden. He was the first prisoner held by the CIA after the Sept. 11 attacks who was known to have been subjected to so-called enhanced interrogation techniques widely seen as a form of torture. 

It’s the first case the court has taken up in more than a decade that involves a prisoner held at the U.S. detention facility at Guantanamo Bay. But unlike most previous cases that detainees have brought to the court, this case is not about detainee habeas rights. Instead, Abu Zubaydah is seeking to subpoena two former CIA contractors, James Mitchell and John “Bruce” Jessen, in connection with a separate ongoing criminal investigation in Poland over the CIA’s alleged conduct in that country nearly 20 years ago. Abu Zubaydah claims he was held at a black site—a secret overseas CIA prison—in Poland and now wants information about his detention and treatment at the site. But the government wants to block the subpoena, arguing that divulging that information would endanger national security. In its briefs and before the courts, the government appealed to the state secrets privilege—a common law privilege that allows the government to block the release of information it determines would harm national security. It’s been a decade since the Supreme Court last heard a case about the privilege. That will change this fall. The Supreme Court is expected to hear oral arguments in United States v. Abu Zubaydah in its term that begins in October. 

Abu Zubaydah’s legal battles took a winding road to get to the Supreme Court. What started as a case in Poland and later at the European Court of Human Rights (ECHR) led to a separate case in the United States that has made its way through a district court and a court of appeals. The issue now before the Supreme Court deals with core questions of judicial deference to the executive branch, which has implications far beyond a civil suit in Poland. 

Who Is Abu Zubaydah?

Abu Zubaydah, a Palestinian born in Saudi Arabia, was captured in a U.S.-Pakistani raid in Pakistan in 2002. He was initially thought to be a high-ranking al-Qaeda operative and a plotter of the Sept. 11 attacks, but a 2014 report by the Senate Select Committee on Intelligence found that the CIA had concluded by August 2006 that Abu Zubaydah was not a member of al-Qaeda. 

Abu Zubaydah was initially held in CIA custody for four years. During that time, according to the Senate Select Committee on Intelligence report, he was subjected to brutal “enhanced interrogation” techniques at several black sites in foreign countries. As part of the program, according to the report, Abu Zubaydah was reportedly waterboarded 83 times in one month and deprived of sleep for 11 consecutive days. 

In September 2006, the Bush administration transferred Abu Zubaydah to the U.S. detention facility at Guantanamo Bay, where he was held as a high-value detainee on the grounds that he was alleged to be a key al-Qaeda facilitator with insight into the organization and its leadership. He has been held there without charge ever since, deemed too dangerous to release because of his “past involvement in jihadist activity” and “his admitted abilities as a long-term facilitator and fundraiser for extremist causes.” 

Background and Procedural History

Cases in Poland and the European Court of Human Rights

The case before the Supreme Court follows a separate, but related, case filed by Abu Zubaydah in Polish and European courts. In 2010, Abu Zubaydah’s lawyers filed a complaint in Poland to hold Polish officials responsible for his alleged detention and torture in the country. At the time, it had been widely reported by journalists, nongovernmental organizations and even Polish officials—although not confirmed by the U.S. government—that the CIA had operated a secret prison in Poland. The Polish government requested information from the United States under the mutual legal assistance treaty between the two countries, but the U.S. denied the request, citing national security concerns. The Polish government then closed the investigation. 

Because Poland terminated its investigation without providing Abu Zubaydah the information he sued over, Abu Zubaydah’s attorneys in 2013 filed a complaint with the ECHR—an international court of the Council of Europe that interprets the European Convention on Human Rights. In his ECHR suit, Abu Zubaydah claimed that Poland violated domestic and international law by not investigating his complaint. 

The ECHR ruled in favor of Abu Zubaydah in 2014, determining “beyond a reasonable doubt” that Abu Zubaydah had been held at a CIA black site in Poland from December 2002 to September 2003 where he was subjected to “enhanced interrogation” techniques. The court found “abundant and coherent circumstantial evidence” to support the conclusion that “Poland knew of the nature and purposes of the CIA’s activities on its territory.” But it acknowledged that it lacked a direct account of the events due to a lack of cooperation from the Polish government and constraints placed on Abu Zubaydah’s ability to communicate from detention at Guantanamo. The court determined that Poland violated Abu Zubaydah’s rights by being complicit in his detention and torture in Poland and failing to investigate those allegations. 

In light of the ECHR decision, Poland resumed its investigation into Abu Zubaydah’s treatment, which remains pending. As part of the investigation, Abu Zubaydah is entitled to submit evidence to Polish courts. But Abu Zubaydah’s lawyers allege he can’t offer his testimony, because of U.S. government restrictions

U.S. District Court for the Eastern District of Washington

Blocked by the U.S. government in their attempts to provide evidence directly in Polish courts, Abu Zubaydah and his lawyers filed an application for discovery in the U.S. District Court for the Eastern District of Washington under 28 U.S.C. § 1782(a), which authorizes district courts to order discovery for use in litigation outside the United States. Abu Zubaydah sought to subpoena Mitchell and Jessen—the former CIA contract psychologists who developed the now-outlawed interrogation program that employed violence, sleep deprivation and humiliation. Based on the men’s previous testimonies and writings, Abu Zubaydah claimed that the pair had information about the operations at the black site in Poland and the identities of Polish officials complicit in those operations. That information, per Abu Zubaydah, could aid Polish prosecutors in determining whether a crime had been committed under Polish law. Abu Zubaydah requested, among other items, documents about the detention facility in Poland, the identities of Polish officials involved in the creation or operation of the facility, the interrogation techniques used and the treatment of those who were held. 

In response, the United States submitted a statement of interest opposing the application for discovery based on four factors outlined by the Supreme Court Intel Corp. v. Advanced Micro Devices, Inc. (2004), a case that dealt with releasing information for use in a foreign tribunal under § 1782. The Abu Zubaydah district court determined that the factors in Intel weighed in favor of granting the discovery and ruled that discovery was warranted. Mitchell and Jessen were then subpoenaed, but the U.S. moved to quash the subpoenas, invoking the state secrets privilege. 

The state secrets privilege allows the government to withhold the release of information in civil litigation if it deems that the disclosure could harm national security. To invoke the privilege, the head of the relevant executive branch department must lodge a formal claim of privilege with the courts based on personal consideration by that official. When the privilege is invoked and recognized by the court, the sensitive information is excluded from the evidence. In some instances, the case is dismissed entirely.

Then-CIA Director Mike Pompeo submitted to the court a formal claim of state secrets privilege. In the document, Pompeo stated that a disclosure could pose a grave danger to U.S. national security and emphasized the importance of protecting the locations of detention facilities and the identities of foreign partners. The CIA should not formally acknowledge its partners, Pompeo said, even after “time passes, media leaks occur, or the political and public opinion winds change” because “if the CIA appears unable or unwilling to keep its clandestine liaison relationships secret, relationships with other foreign intelligence or security services could be jeopardized.”  

In moving to quash the subpoenas, the government cited the Supreme Court’s 1953 ruling in United States v. Reynolds. While versions of the state secrets privilege had been invoked as far back as the 19th century in both the United States and England, Reynolds was the first time that the Supreme Court formally recognized the privilege and articulated how it operates. In Reynolds, the Supreme Court held that the government could withhold information (in that case, military secrets) even when critical to a plaintiff’s case, for reasons of national security. Reynolds also established rules governing the invocation of the privilege. 

The district court in the Abu Zubaydah case applied the three steps for analyzing claims of privilege laid out in Reynolds. First, the procedural requirements for invoking the state secrets privilege must be satisfied. Second, the court must determine whether that information is privileged. And third, the court must determine how the matter should proceed in light of a successful claim of privilege.  

The court first concluded that the government had satisfied the procedural requirements for invoking the privilege. Next, it addressed the merits of the privilege claim. The court said that it “[did] not find convincing the [government’s] claim that merely acknowledging, or denying, the fact the CIA was involved with a facility in Poland poses an exceptionally grave risk to national security.” It noted, further, that the existence of the black site in Poland was a fact the ECHR found “beyond a reasonable doubt,” widely reported in the media and confirmed by Poland’s president. The upshot of this, according to the court: The existence of a CIA facility in Poland was not a privileged state secret. However, the court determined that other information Abu Zubaydah sought from Mitchell and Jessen, such as the identities of Polish citizens involved in establishing the black site and operational details of the facility, were state secrets. 

For the third step in analyzing the privilege claim, the court said that, under Reynolds, the privilege claim justifies terminating the case in three circumstances: first, when the plaintiff cannot make its case without the privileged information; second, when the defendant is deprived of evidence vital to its defense; or third, when litigating the case would present an unacceptable risk of disclosing state secrets because the privileged and nonprivileged information are inseparable. The court decided that because the case concerned a discovery matter, the first two circumstances were not present. But it found that the third circumstance was present because, according to the court, “[m]eaningful discovery cannot proceed in this matter without disclosing information that the Government contends is subject to the state secrets privilege” and the nonprivileged information “would not seem of much, if any, assistance to Polish investigators.” As a result, the court terminated discovery, and Zubaydah was left unable to gain any of the information he wanted. 

U.S. Court of Appeals for the Ninth Circuit

Abu Zubaydah and his lawyers appealed the district court’s decision to terminate discovery to the U.S. Court of Appeals for the Ninth Circuit. They argued that under Reynolds, the district court should have attempted to separate privileged from nonprivileged information before dismissing the case entirely. Presented to the appellate panel was the “narrow but important question: whether the district court erred in quashing the subpoenas after concluding that not all the discovery sought was subject to the state secrets privilege.” 

A divided Ninth Circuit panel reversed the district court’s decision, rejecting the government’s “blanket assertion” of state secrets privilege over everything in the request for discovery. Judge Richard Paez wrote the majority opinion joined by U.S. District Judge Dean Pregerson, temporarily assigned to the appeals court. Judge Ronald Gould dissented.

The panel agreed with the district court that much of the information requested by Abu Zubaydah was covered by the state secrets privilege. But, as the district court concluded, the panel found that some of the information was not covered by the privilege, including the fact that the CIA operated a detention facility in Poland in the early 2000s, the interrogation techniques used in that facility and details of Abu Zubaydah’s treatment in the facility. The majority determined that the disclosure of those basic facts would not endanger U.S. national security, in part because they were already widely known. “[I]n order to be a ‘state secret,’ a fact must first be a ‘secret,’” Paez wrote for the majority. Pompeo claimed that despite the information being widely reported, a lack of official confirmation from the government preserved “an important element of doubt about the veracity of the information.” But the panel argued that because Mitchell and Jessen were “private parties” and not “agents of the government,” their production of evidence would not mean that the U.S. itself confirmed or denied any information. 

The majority agreed with the petitioners that it is not impossible to disentangle the privileged information from the nonprivileged information and that the district court was too quick to dismiss the case in its entirety. However, the panel determined that if the discovery targeting nonprivileged information risked disclosing state secrets because the privileged and nonprivileged information are inseparable, then dismissal may be warranted. The panel concluded that the district court’s dismissal of the discovery before attempting to disentangle the privileged and nonprivileged information was premature. The court ultimately remanded to the district court to “engag[e] the panoply of tools at its disposal” to disentangle the privileged information from the nonprivileged. Only if that proves impossible, the panel determined, can the district court dismiss the case. Gould dissented, writing that the majority decision “jeopardizes critical national security concerns.”

The government sought a rehearing en banc, but the court of appeals denied the rehearing. The 12 judges dissenting from the en banc denial said the ruling was filled with “grave legal errors.”

The Supreme Court Petition

In its petition for a writ of certiorari filed in December 2020 by Jeffrey Wall, the Trump administration’s acting solicitor general, the government argued that the Ninth Circuit’s decision posed a risk to national security. The government claimed that the court failed to afford deference to the judgment of the CIA director about the potential harm to national security and that the panel instead erroneously undertook its own assessment of the risks. The Ninth Circuit’s skeptical review of the executive branch’s state secrets assertions “significantly alters the standard governing the proper disposition of such matters,” the government argued in its petition. And even though Mitchell and Jessen were private parties, their public disclosure of classified information could still risk national security, the petitioners claimed.

The government argued that the Ninth Circuit erred in determining that the release of information that the panel considered “basic public knowledge” that had “been in the public eye for some years” about the detention facility in Poland would not endanger national security. Without an official government disclosure, the government said, purported public knowledge does not prevent information from being covered by the state secrets privilege. 

The petitioners called these errors in the panel’s ruling “particularly damaging” because discovery requests for information were to be used in foreign proceedings. “More, not less, deference to national-security interests is warranted in this ‘pure discovery matter’ for a foreign proceeding,” the petitioners said.  

In their brief in opposition, Abu Zubaydah’s lawyers argued that the Ninth Circuit panel instructed the district court only to determine whether the privileged and nonprivileged information could be separated. The panel did not, they stressed, order any information—let alone privileged information—to be disclosed. In fact, the panel advised that if the privileged and nonprivileged information could not be disentangled, then the district court could dismiss the discovery request. The government’s warnings about harm to national security are therefore “speculative and premature,” the respondents argued. 

On March 4, the government—this time, the Biden administration—responded to Abu Zubaydah’s lawyers. Despite the change in administration that had taken place between when the petition for a writ of certiorari was filed and the response, the government’s arguments remained the same. It continued to claim that the Ninth Circuit departed from previous deference to the executive branch’s judgment on national security risks and that it erred in deeming classified information as “public knowledge.”

The question now before the court is whether the Ninth Circuit erred when it rejected the government’s claims of the state secrets privilege based on the court’s assessment of potential harms to national security, thus requiring discovery to proceed under 28 U.S.C. § 1782(a).

Some observers may interpret the court granting certiorari as a sign that at least four justices (the minimum needed for the court to take on a case) think something is wrong in the Ninth Circuit’s decision. However, the court has a strong tradition of granting the government’s petitions, which might tilt justices toward granting certiorari even if they don’t take issue with the Ninth Circuit’s decision. 

How the Supreme Court might choose to resolve this case is far from clear. It’s not lacking for options. 

It could decide to let the Ninth Circuit’s decision stand, remanding the case to the district court to see if it can disentangle the privileged information from the nonprivileged. Conversely, it could agree with the government that the Ninth Circuit made fundamental errors in its ruling that could harm U.S. intelligence capabilities. It could also agree with the Ninth Circuit’s substantive ruling but object to the way it made the ruling by, for example, finding Reynolds to be faulty precedent as that case did not involve state secrets held by private actors, unlike this one. Or perhaps the Biden administration could pursue entirely new lines of argument that the court will consider. 

It’s unclear how the court will come down. Whatever the outcome, the ruling will see the Supreme Court reengage with issues surrounding detention and interrogation during the United States’s war on terror—this time with a markedly different composition of justices since it last took up the case of a Guantanamo detainee more than a decade ago.