When applying the state secrets privilege, should a court defer to the government’s assessment of the national security risks involved or conduct an independent judicial review?
This case asks the Supreme Court to weigh national security concerns against the need for transparency and accountability when applying the state secrets privilege, a common-law privilege permitting classified information to be protected from discovery. Petitioner the United States argues that the utmost deference is owed to government officials in matters of national security. Respondent Zubaydah argues, however, that courts should review the evidence independently to separate state secrets from non-privileged information. The outcome of this case carries significant implications for judicial transparency, the separation of powers, and civil liberties.
Questions as Framed for the Court by the Parties
Whether the U.S. Court of Appeals for the Ninth Circuit erred when it rejected the United States’ assertion of the state secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. § 1782(a) against former Central Intelligence Agency contractors on matters concerning alleged clandestine CIA activities.
Following the terrorist attacks on September 11, 2001, the Central Intelligence Agency (“CIA”) sought to obtain intelligence on terrorist activities by developing a secret network of overseas black sites where detainees of the War on Terror were subjected to “enhanced interrogation techniques.” Husayn v. Mitchell at 1125–1127.
In 2002, Zayn-al Abidin Muhammad Husayn (“Zubaydah”) was erroneously identified by the CIA as a high-ranking al-Qaeda official and targeted for capture. Id. at 1126–27. He was seized in Pakistan and then transferred to black sites in a series of foreign nations and subjected to “enhanced interrogation techniques.” Id. These techniques included waterboarding, confinement, stress positions, sleep deprivation, and other acts of torture. Id. at 1127. The details of Zubaydah’s torture while in CIA custody have been officially declassified by the United States. Id. However, despite declassification making it public knowledge, the United States has refused to officially confirm that Zubaydah’s detention and torture took place at a black site in Poland. Id. at 1132–33.
In 2010, Zubaydah’s attorneys filed a criminal complaint in Polish court against the Polish officials complicit in his detention and treatment. Id. at 1127. However, the investigation failed to culminate in any prosecutions or convictions. Id. Zubaydah’s attorneys next filed an application with the European Court of Human Rights (“ECHR”), alleging that Poland had breached its duty to conduct a proper investigation of the crimes committed against Zubaydah. Id. The ECHR found “beyond a reasonable doubt” that Zubaydah had been imprisoned at a detention center in Poland. Id. at 1128. Following the ECHR’s ruling, the Polish government reopened its investigation and requested evidence from the United States under the Mutual Legal Assistance Treaty (“MLAT”). Id. The United States denied the request on the grounds that the evidence sought would pose a risk to national security. Id. Polish prosecutors thereafter turned to Zubaydah’s lawyers for assistance in obtaining the evidence. Id.
To assist the Polish prosecutors, Zubaydah and his attorneys filed an application for discovery under 28 U.S.C. § 1782 in the Eastern District of Washington. Id. They sought to subpoena Bruce Jessen and James Mitchell, the two CIA contractors responsible for proposing and developing the interrogation techniques used on Zubaydah. Id. at 1127-28. In response, the United States filed a Statement of Interest arguing that the application should be denied as an exercise of the court’s discretion under Intel Corp. v. Advanced Micro Devices, Inc. Id. at 1129. In applying the Intel factors, however, the district court ruled in favor of the application. Id. After the subpoenas were granted and served, the United States moved to intervene and quash the subpoenas under the state secrets privilege, which permits the United States to shield evidence from admission to courts if the disclosure risks national security. Id. In invoking the privilege, the United States cited two declarations by former CIA Director Pompeo that such testimony would endanger national security. Id. The district court granted the Government’s motion to quash the subpoenas in their entirety. Id. at 1129-30.
On appeal, a Ninth Circuit panel reviewed the evidence and rejected the United States’ “blanket assertion of [the] state secrets privilege,” on the grounds that not all of the information sought was a state secret. Id. at 1134. The Ninth Circuit determined that the district court should have considered whether it would be possible to separate the privileged and non-privileged information, and remanded the case. Id. at 1136, 1138. the Ninth Circuit denied rehearing en banc. Brief for Respondents, Abu Zubaydah and Joseph Margulies at 20.
JUDICIAL DEFERENCE TO THE STATE SECRETS PRIVILEGE
Petitioner United States argues that the Ninth Circuit erred by failing to defer to former CIA Director Pompeo’s judgment regarding the national security risk posed by Mitchell and Jessen’s testimony. Brief for Petitioner, the United States at 22. The United States contends that, in accordance with the Court’s decision in United States v. Nixon, whenever the United States asserts the state secrets privilege under its Article II executive powers, such judgments on potential national security risks should be treated with the “utmost deference” due to the unique expertise of executive officers. Id. at 24. In particular, the United States relies on under CIA v. Sims, which held that the CIA Director, and not the Court, had the responsibility to engage in the assessment of “whether disclosure of information may lead to an unacceptable risk of compromising the Agency’s intelligence-gathering process.” Id. at 24–25. As such, the United States contends that by conducting review with “a skeptical eye,” the Ninth Circuit departed from the prevailing deferential standard and invited courts to override the expertise of an Executive national security officer. Id. at 25–26.
Respondent Zubaydah counters that the state secrets privilege must be narrowly tailored, otherwise it will become a blanket shield for the United States to protect itself from disclosing “embarrassing or criminal information.” Brief for Respondents, at 23. Zubaydah characterizes the United States as attempting to “convert a longstanding standard of measured deference into practical immunity from judicial review,” a practice he asserts would upset precedent and violate constitutional separation of powers principles. Id. at 41. Zubaydah argues that it is key for courts to act as a judicial check on executive power by following United States v. Reynolds, as refined by the Ninth Circuit in Mohamed v. Jeppesen Dataplan Inc. Id. at 23–25. Zubdayah points out that, under the Reynolds and Mohamed framework, it is the job of the court to determine (1) whether the United States has fulfilled its procedural requirements, (2) whether the information is privileged, and (3) upon a finding of privilege, whether it merits terminating the case. Id. at 23. Notably, Zubaydah concedes that courts can defer to the executive regarding state secrets that would truly harm national security. Id. at 42–43. However, Zubaydah asserts that the judiciary is equally well-equipped under Reynolds’ second step to determine on the basis of the evidence whether a fact is actually secret. Id. at 43. Additionally, under Reynolds’ third step, the judiciary is constitutionally tasked with determining how a case should proceed when a party seeks both privileged and non-privileged information. Id. at 43.
INFLUENCE OF A FOREIGN FORUM ON THE WEIGHT OF THE PRIVILEGE
The United States argues that the Ninth Circuit’s refusal to defer to the invocation of the state secrets privilege is particularly harmful since Zubaydah seeks the testimony for use in proceedings before a foreign court investigating “alleged clandestine activities of the CIA abroad.” Brief for Petitioner at 39. In the context of this case, where the trial court cannot provide relief to the parties and will ultimately lose control over the information after it is sent to a foreign tribunal, the United States asserts that there is little necessity under Reynolds that would weigh in favor of allowing discovery. Id. at 40. Therefore, the United States contends that when discovery is being sought for use in a foreign tribunal, there should be utmost deference to executive characterizations only requiring “a showing that the discovery poses a facially plausible risk to the national security.” Id. at 40–42.
Zubaydah counters that the foreign element of the proceedings matters little as the evidence’s final destination has no bearing on whether the information itself is privileged. Brief for Respondents at 40. Rather, he asserts that “a state secret . . . is a state secret in any forum, domestic or foreign,” and that what matters is whether the evidence will reveal sensitive national security matters. Id. at 40. Additionally, Zubaydah argues that after a court determines that information is not privileged, there is little additional risk in transmitting that information to a foreign tribunal that is “out of control of a domestic court.” Id. at 41. For example, Zubaydah notes that most domestic court proceedings are already public, and that any testimony would be under domestic judicial supervision before being sent to a foreign tribunal. Id.
ABUSE OF DISCRETION UNDER 28 U.S.C. § 1782
Apart from the state secrets privilege, the United States further contends that the Ninth Circuit erred by forcing the district court to abuse its discretion under 28 U.S.C. 1782 to order or refuse to order the production of evidence for use in a foreign tribunal. Brief for Petitioner at 43. The United States relies on factors laid out in Intel Corporation Investment Policy Committee v. Sulyma, including the participation in foreign proceedings of those from whom discovery is sought, the nature of the foreign tribunal, the character of the proceedings underway abroad, the receptivity of the foreign entity to American judicial assistance, the potential use of Section 1782 to circumvent discovery requirements, and the burden of the discovery. Id. at 43, 47. In this case, the United States asserts that the Intel factors weighed against discovery due to the highly unusual and sensitive nature of a foreign criminal investigation into American clandestine activities abroad. Id. at 43. Additionally, as the United States has continuously rejected Polish mutual legal assistance requests, the United States argues that this suit is simply a means of dodging the mutual legal assistance process. Id. at 43–44. Furthermore, the United States contends that given the mixture of privileged and non-privileged information, conducting discovery would be extremely burdensome. Id. at 47. Given these factors, the United States claims that requiring the district court to issue the order to compel evidence would be an impermissible abuse of its discretion under Section 1782. Id. at 49.
In response, Zubaydah asserts that this matter is not properly before the Supreme Court since it was neither presented in the petition for certiorari nor the motion to quash at the district court level. Id. at 47–48. Furthermore, Zubaydah contends that the district court resolved the Intel factors against the United States before separately determining that the state secrets privilege necessitated dismissing the application. Id. at 47–48. Additionally, Zubaydah argues that even on the merits, the Intel factors cut in favor of discovery considering: Mitchell and Jessen are not participants in the foreign proceedings; the Polish government has failed to receive information through MLAT requests; Zubaydah is a private individual and therefore may seek information discovery even if the Polish government has also issued MLAT requests; and Mitchell and Jessen themselves previously have asserted this discovery is not too burdensome. Id. at 50–53.
APPLICATION OF THE STATE SECRETS PRIVILEGE TO GOVERNMENT CONTRACTORS
Finally, the United States claims that the Ninth Circuit additionally erred by determining that Mitchell and Jessen’s testimony would not impermissibly infringe on national security because, as CIA contractors, Mitchell and Jessen were “private parties” and therefore “the United States [would not be] confirm[ing] or deny[ing] anything” via their testimony. Brief for Petitioner at 26. Additionally, the United States contends that characterizing Mitchell and Jessen as “private parties” ignores that the information they hold was gleaned due only to their employment with the CIA. Id. The United States highlights that revealing this information would thus undermine foreign governments’ trust in the CIA’s guarantees of confidentiality, thereby harming the CIA’s ability to maintain such partnerships and to effectively operate foreign intelligence services. Id. at 27–28. For these reasons, the United States asserts that there is a long history of applying the state secrets privilege with equal force to government contractors and employees. Id. at 28–29. Given the prevalence of private contractors in national security, the United States argues that permitting them to testify would open a loophole that could cause significant damage to national security. Id. at 29.
Zubaydah argues that as Mitchell and Jessen are not government agents, they cannot speak on the government’s behalf and cannot provide “official confirmation” of the location of a clandestine CIA detention facility in Poland or of the Polish government’s participation. Brief for Respondents at 37. Furthermore, although Zubaydah acknowledges the importance of the United States’ need to assure foreign counterparts of confidentiality through both agents and contractors, he asserts that this only stands when the information at stake is previously undisclosed. Id. at 38. In this case, Zubaydah argues that the United States is seeking to avoid attribution to publicly known information; as private parties, Mitchell and Jessen cannot provide such attribution. Id. at 38. As such, Zubaydah asserts that the state secrets privilege should not apply with equal force where discovery would unofficially confirm public knowledge and therefore would not cause additional harm. Id. at 38.
TRANSPARENCY OF THE JUSTICE SYSTEM
The United States rejects any speculation that use of the state secrets privilege is merely a litigation tactic to evade public scrutiny. See Reply of United States at 4-5. The United States points out its willingness to subject its wrongs to public debate by declassifying documents and argues that such declassification demonstrates its resolution against reviving CIA black sites or enhanced interrogation techniques. Id. at 5. The United States contends, therefore, that a ruling in favor of Zubaydah would effectively penalize their open disclosure and disincentivize future public transparency. Id. at 4-5. Additionally, the United States argues that judicial interference with the executive branch here would run counter to the objectives of transparency and respect for international law and legal procedure. Id. at 4, 23.
September 11th Families for Peaceful Tomorrows (“SFPT”), in support of Zubaydah, cautions that, if left unchecked, the state secrets privilege could compromise the credibility and transparency of the justice system. See Brief for Amicus Curiae September 11th Families for Peaceful Tomorrows, in Support of Respondents at 27. SFPT concedes that under the state secrets privilege, the government can lawfully block discovery of evidence whose disclosure would reasonably endanger national security. Id. at 6. SFPT argues, however, that without meaningful judicial oversight, the United States is free to abuse the privilege to advance its own interests rather than to safeguard legitimate national security concerns. See Brief for SFPT at 25. On that note, Evidence Law Professors (“Professors”) point out that the government could, for example, deploy the privilege as a litigation tactic to delay proceedings and to deny opponents the evidence necessary to support their claims. See Brief of Evidence Law Professors as Amici Curiae (“Professors”), in Support of Respondents at 11. The Professors emphasize that this denial could prove so crippling to an opponent’s argument and cause dismissal from the outset of litigation. Id. Therefore, with litigants’ rights to a fair trial hanging fundamentally in the balance, the Professors urge that courts should intervene as independent parties to ensure efficient and equitable outcomes. Id. at 15.
THE NECESSITY OF CHECKS AND BALANCES IN NATIONAL SECURITY
The United States asserts, in opposition, that courts do not possess the requisite firsthand knowledge and access to confidential sources to conduct competent internal review where matters of national security are concerned. See Brief for Petitioner at 25-27. The United States contends that the judiciary’s insufficient expertise is exemplified by its position that public knowledge of the black site’s location in Poland negates the information’s status as a state secret. Id. at 35. The United States points out that U.S. intelligence forces in fact regularly employ tradecraft to intentionally mislead the public. See Reply of United States at 15. Additionally, the United States contends that concerns about potential abuses of the privilege are unwarranted because the executive branch is scrupulous in invoking the privilege only when necessary. Id. at 23-24. Here, the United States insists that their invocation is not arbitrary but rather consistent with its multiple prior denials of Poland’s requests under the MLAT. See Reply of United States at 23.
In response, the Council on American-Islamic Relations (“CAIR”) and the Center for Constitutional Rights (“CCR”) stress that judicial scrutiny is urgently necessary to allay any suspicion of abuse and to restore the public’s faith in a secure and stable society, given that invocations of the privilege have significantly increased in frequency since 9/11. See Brief of Council on American-Islamic Relations as Amici Curiae (“CAIR”), in Support of Respondents at 5; See Brief for Amicus Curiae Center for Constitutional Rights (“CCR”), in Support of Respondents at 32. The CAIR contends that judicial checks on the state secrets privilege are necessary to guard against government impunity, and to guarantee the transparency necessary for true accountability. See Brief of CAIR at 16-17. Torture Survivors Maher Arar et al. (“Torture Survivors”) point out that judicial oversight is especially necessary where torture victims are concerned. See Brief of Amici Curiae Torture Survivors Maher Arar et al. (“Torture Survivors”), in Support of Respondents at 25. The CAIR further warns that if courts decline to exercise appropriately skeptical review, then the state secrets privilege could operate to immunize the government from accountability for human rights abuses. See Brief of CAIR at 6. Former U.N. Special Rapporteurs point out that, historically, overly broad definitions of national security have served as authoritarian tools of suppression to limit the free flow of information and to cover up criminality. See Brief of Amici Curiae Current and Former U.N. Special Rapporteurs, in Support of Respondents at 8. Therefore, as the CCR contends, courts have a constitutional duty, under the founding principle of separation of powers, to enforce limits on the Executive Branch’s potential excesses. See Brief of CCR at 32. The Torture Survivors furthermore assert that a ruling in favor of the United States would contravene the United States’ duty to assist fellow signatories of the Convention Against Torture in investigating and penalizing acts of torture, and would undermine America’s credibility abroad as a leader in defending human rights. See Brief of Torture Survivors at 19.
The authors would like to thank Professor Joseph Margulies for his guidance and insights into this case.
- Adam Liptak, Supreme Court to Rule on Whether CIA Black Sites are State Secrets, New York Times (April 26, 2021)
- Rohini Kurrup, Supreme Court to Hear State Secrets Case Involving Guantanamo Detainee, Law Fare Blog (2021)