State secrets ruling

 United States v. Husayn, aka Zubaydah, et al. U.S. Supreme Court, March 2022.

From the summary.

In the aftermath of the September 11, 2001, terrorist attacks, the Central Intelligence Agency believed that Abu Zubaydah was a senior al Qaeda lieutenant likely to possess knowledge of future attacks against the United States. Zubaydah—currently a detainee at the Guantánamo Bay Naval Base—says that in 2002 and 2003 he was held at a CIA detention site in Poland, where he was subjected to “enhanced interrogation” techniques. In 2010, Zubaydah filed a criminal complaint in Poland, seeking to hold accountable any Polish nationals involved in his alleged mistreatment at the CIA site ostensibly located in that country. The United States denied multiple requests by Polish prosecutors for information related to Zubaydah’s claim on the ground that providing such information would threaten national security. Zubaydah filed a discovery application pursuant to 28 U. S. C. §1782, which permits district courts to order production of testimony or documents “for use in a proceeding in a foreign . . . tribunal.” Zubaydah asked for permission to serve two former CIA contractors with subpoenas requesting information regarding the alleged CIA detention facility in Poland and Zubaydah’s treatment there. The Government intervened and asserted the state secrets privilege in opposition to Zubaydah’s discovery request. The District Court rejected the Government’s claim that merely confirming that a detention site was operated in Poland would threaten national security.

The District Court nevertheless dismissed Zubaydah’s discovery application. It concluded that the state secrets privilege applied to operational details concerning the CIA’s cooperation with a foreign government, and that meaningful discovery could not proceed without disclosing privileged information. On appeal, the Ninth Circuit agreed with the District Court that much of the information sought by Zubaydah was protected from disclosure by the state secrets privilege, but the panel majority concluded that the District Court had erred when it dismissed the case. It believed that the state secrets privilege did not apply to publicly known information. The panel majority also concluded that because the CIA contractors were private parties and not Government agents, they could not confirm or deny anything on the Government’s behalf. Given these holdings, the panel majority determined that discovery into three topics could continue: the existence of a CIA detention facility in Poland, the conditions of confinement and interrogation at that facility, and Zubaydah’s treatment at that location.

Held: The judgment is reversed, and the case is remanded