United States v. Husayn

• Decision Date: 03 March 2022
• Docket Number: 20-827
• Citation: 142 S.Ct. 959
• Parties: UNITED STATES, Petitioner v. Zayn Al -Abidin Muhammad Husayn, aka Abu ZUBAYDAH, et al.
• Court: U.S. Supreme Court

142 S.Ct. 959

UNITED STATES, Petitioner

v.Zayn Al -Abidin Muhammad Husayn, aka Abu ZUBAYDAH, et al.

No. 20-827

Supreme Court of the United States.

Argued October 6, 2021

Decided March 3, 2022

Acting Solicitor General Brian H. Fletcher, Washington, DC, for Petitioner.

David F. Klein, Washington, DC, for Respondents.

Brian H. Fletcher, Acting Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioner.

Elizabeth B. Prelogar, Acting Solicitor General, Counsel of Record, Brian M. Boynton, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Sarah E. Harrington, Deputy Assistant Attorney General, Anthony A. Yang, Assistant to the Solicitor General, Sharon Swingle, H. Thomas Byron III, Attorneys, Department of Justice, Washington, DC, for Petitioner.

Joseph Margulies, Cornell University, School of Law, Ithaca, NY, David F. Klein, Counsel of Record, John Patrick Chamberlain, Pillsbury Winthrop Shaw Pittman LLP, Washington, DC, for Respondents.

Justice BREYER delivered the opinion of the Court, except as to Parts II–B–2 and III.¹

Abu Zubaydah, a detainee in the Guantánamo Bay Naval Base, and his attorney filed an ex parte 28 U.S.C. § 1782 motion in Federal District Court seeking to subpoena two former Central Intelligence Agency contractors. Zubaydah sought to obtain information (for use in Polish litigation) about his treatment in 2002 and 2003 at a CIA detention site, which Zubaydah says was located in Poland. See 28 U.S.C. § 1782 (permitting district courts to order production of testimony or documents "for use in a proceeding in a foreign ... tribunal"). The Government intervened. It moved to quash the subpoenas based on the state secrets privilege. That privilege allows the Government to bar the disclosure of information that, were it revealed, would harm national security.

United States v. Reynolds , 345 U.S. 1, 6–7, 73 S.Ct. 528, 97 L.Ed. 727 (1953).

The Court of Appeals for the Ninth Circuit mostly accepted the Government's claim of privilege. Husayn v. Mitchell , 938 F.3d 1123, 1134 (2019). But it concluded that the privilege did not cover information about the location of the detention site, which Zubaydah alleges to have been in Poland. Ibid. The Court of Appeals believed that the site's location had already been publicly disclosed and that the state secrets privilege did not bar disclosure of information that was no longer secret (and which, in any event, was being sought from private parties). Id., at 1132–1133. The Government argues that the privilege should apply because Zubaydah's discovery request could force former CIA contractors to confirm the location of the detention site and that confirmation would itself significantly harm national security interests. In our view, the Government has provided sufficient support for its claim of harm to warrant application of the privilege. We reverse the Ninth Circuit's contrary holding.

I

A

For present purposes, we can assume the following: In the aftermath of the September 11, 2001, terrorist attacks, the CIA believed that Zubaydah was a senior al Qaeda lieutenant likely to possess knowledge of future attacks against the United States. S. Rep. No. 288, 113th Cong., 2d Sess., p. 21, and n. 60 (2014) (SSCI Report). In March 2002, Zubaydah was captured by Pakistani government officials working with the CIA. Id., at 21. The CIA then transferred him to a detention site that some sources allege was located in Thailand. Id., at 22–23; see also 3 Record 552.

Zubaydah remained at this location for several months. SSCI Report 22, 67. During that time he was subjected to what the Government then called "enhanced interrogation" techniques, including waterboarding, stress positions, cramped confinement, and sleep deprivation. Id., at 40–41. The Government has since concluded that this treatment constituted torture. See Press Conference by the President, Office of the Press Secretary, Aug. 1, 2014, https://obamawhitehouse.archives.gov/the-press-office/2014/08/01/press-conference-president.

In December 2002, the CIA transferred Zubaydah to a different detention site—the site at issue here. SSCI Report 67. The CIA has never confirmed its location, but Zubaydah and many others believe it was in Poland.

In September 2006, the Government transferred Zubaydah to its detention facility at the Guantánamo Bay Naval Base. 3 Record 583. He has been detained in Guantánamo Bay ever since. 938 F.3d, at 1125.

Some of this information and related details have appeared in various publicly-available documents, including:

• The almost-500 page Executive Summary of a Senate Select Committee on Intelligence Report concerning the CIA's use of "enhanced interrogation" techniques. See generally SSCI Report.

• The European Court of Human Rights’ findings concerning Zubaydah's treatment, which that court concluded had taken place in Poland. 3 Record 382–607.

• Testimony given by James Mitchell and John Jessen, the former CIA contractors who are the targets of Zubaydah's subpoenas and who designed and implemented the CIA's post-September 11 enhanced-interrogation program. Id., at 106–149; Tr. in United Statesv.Khalid Shaikh Mohammad, et al. (Jan. 21–31, 2020).

• Mitchell's memoir of his involvement with the CIA's enhanced-interrogation program. See generally J. Mitchell & B. Harlow, Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America (2016).

Some of these and other publicly available sources say that, in 2002 and 2003, Zubaydah was detained at a CIA facility in Poland. But, the Government states, the CIA itself has never confirmed that one or more of its clandestine detention sites was located in any specific foreign country. App. to Pet. for Cert. 134a. Neither, as far as we can tell from the record, have the contractors Mitchell and Jessen named the specific foreign countries in which CIA detention sites were located. Rather, they (like the SSCI Report) have used code names to refer to the locations where Zubaydah was held. See, e.g., SSCI Report 62; Tr. in United States v. Khalid Shaikh Mohammad, et al. (Jan. 21, 2020), at 30190. Finally, although at least one former Polish government official has stated that Poland cooperated with the CIA, to our knowledge, the Polish government itself has never confirmed such allegations. 3 Record 472.

B

In 2010, lawyers representing Zubaydah filed a criminal complaint in Poland asking prosecutors there to hold accountable any Polish nationals who were involved in his alleged mistreatment in that country. 938 F.3d, at 1127. Invoking a Mutual Legal Assistance Treaty, the Polish prosecutors asked American authorities for information. 3 Record 441. The United States Department of Justice refused their request on the ground that providing the information would adversely affect our national security. Id ., at 444; see also App. to Brief for Petitioner 4a. The Polish investigation closed without prosecutions. 938 F.3d at 1127.

In 2015, the European Court of Human Rights considered the matter. It concluded that the CIA had held and tortured Zubaydah at a site located in Poland. 3 Record 558. It also stated that Poland had failed adequately to investigate the human rights violations that the court believed had occurred on Polish soil. Id., at 581.

In response, the Polish prosecutors reopened their investigation. 938 F.3d at 1128. They again requested information from the United States under the Mutual Legal Assistance Treaty, and the United States again denied their requests. Ibid. ; see also 3 Record 632–633. At that point, the Polish prosecutors invited Zubaydah's lawyers to submit evidence that would aid their investigation.

Soon afterward, Zubaydah (and his lawyer) filed the ex parte 28 U.S.C. § 1782 discovery application now before us. 938 F.3d at 1128. Section 1782 says that a district court may 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 asked for permission to serve the contractors, Mitchell and Jessen, with subpoenas commanding them to appear for depositions and to produce "documents, memoranda and correspondence" regarding an alleged CIA detention facility in Poland and Zubaydah's treatment there. The Appendix, infra, at 972 – 973, lists Zubaydah's document requests. Twelve of Zubaydah's thirteen document requests referred to Poland, and 10 specifically requested documents "concerning" an alleged CIA detention facility located in Stare Kiejkuty, Poland. Ibid. The District Court granted Zubaydah's request. App. to Pet. for Cert. 70a.

The Government intervened. 938 F.3d at 1129. Section 1782(a) provides that a "person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege." The Government claimed that disclosure of the information Zubaydah sought would violate the state secrets privilege. 938 F.3d at 1129. It asked the court to quash the subpoenas. Ibid.

To support its privilege claim, the Government submitted a declaration from the Director of the CIA. App. to Pet. for Cert. 123a–137a. The Director said that Mitchell and Jessen's response to Zubaydah's subpoenas would, in this case, confirm or deny whether Poland had cooperated with the CIA. Id., at 129a–130a. And that confirmation, the Director explained, would significantly harm our national security interests. Id., at 131a.

The District Court granted the Government's motion to quash the subpoenas. Id., at 60a. It did not accept the Government's claim "that merely confirming [that] a detention site was operated in Poland would pose a grave risk to national security." Id., at 59a. But it nonetheless thought the state secrets privilege applied. It concluded that the state secrets privilege allowed the Government to suppress "operational details concerning the specifics of...