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United States v. Zubaydah

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Supreme Court of the United States
United States v. Zubaydah
Term: 2021
Important Dates
Argued: October 6, 2021
Decided: March 3, 2022
Outcome
Reversed and remanded
Vote
7-2
Majority
Stephen Breyer • Chief Justice John Roberts • Clarence Thomas • Samuel Alito • Elena Kagan • Brett Kavanaugh • Amy Coney Barrett
Concurring
Clarence Thomas (in part and in the judgment) • Samuel Alito (in part and in the judgment) • Elena Kagan (in part) • Brett Kavanaugh (in part) • Amy Coney Barrett (in part)
Dissenting
Elena Kagan (in part) • Neil Gorsuch • Sonia Sotomayor 

United States v. Zubaydah is a case that was decided by the Supreme Court of the United States on March 3, 2022, during the court's October 2021-2022 term. The case was argued before the court on October 6, 2021.

In a 7-2 vote, the court reversed the U.S. Court of Appeals for the 9th Circuit's ruling and remanded the case for further proceedings, holding that in the context of Zubaydah's discovery application, the 9th Circuit erred by ruling that state-secrets privilege did not apply to information that could confirm or deny the existence of a CIA detention site in Poland.[1]

Justice Stephen Breyer delivered the opinion of the court except for parts Parts II-B-2 and III. Chief Justice John Roberts joined the opinion in full. Justices Clarence Thomas and Samuel Alito joined Part IV; Thomas filed an opinion concurring in part and concurring in the judgment, joined by Justice Alito. Justice Elena Kagan joined as to all but Parts III and IV and the judgment of dismissal; she also filed an opinion concurring in part and dissenting in part. Justice Neil Gorsuch filed a dissenting opinion, in which Justice Sonia Sotomayor joined. Justices Brett Kavanaugh and Amy Coney Barrett joined as to all but Part II-B-2; Kavanaugh filed an opinion concurring in part, in which Barrett joined.[1] Click here for more information about the ruling.


HIGHLIGHTS
  • The case: Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah, is a former associate of Osama bin Laden. The United States Central Intelligence Agency (CIA) detained Abu Zubaydah as an enemy combatant as part of its detention and interrogation program in Poland from 2002 to 2003. In Poland, the European Court on Human Rights ruled that Abu Zubaydah's treatment during his detention amounted to torture. As part of a Polish criminal investigation into the CIA program, Abu Zubaydah filed an application with the U.S. District Court for the Eastern District of Washington to compel the U.S. government to provide Poland with information on his detention. The district court first granted discovery and then quashed the related subpoenas after the U.S. government intervened, citing the state-secrets privilege. On appeal, the U.S. Court of Appeals for the 9th Circuit reversed the district court's ruling and remanded the case for further proceedings, holding that not all of the information requested was privileged and the court could allow limited discovery while protecting national security interests. Click here to learn more about the case's background.
  • The issue: The case concerned the state-secrets privilege.
  • The questions presented: "Whether the court of appeals 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 (CIA) contractors on matters concerning alleged clandestine CIA activities."[2]
  • The outcome: The U.S. Supreme Court reversed the 9th Circuit's ruling and remanded the case for further proceedings.



    • The case came on a writ of certiorari to the United States Court of Appeals for the 9th Circuit. To review the lower court's opinion, click here.[3]

    Timeline

    The following timeline details key events in this case:

    Background

    Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah, is a former associate of Osama bin Laden. In 2002, Abu Zubaydah was captured in Pakistan by Pakistani government authorities and the United States Central Intelligence Agency (CIA). From 2002 to 2003, Abu Zubaydah was detained as an enemy combatant in a U.S. detention facility in Poland as part of the CIA's detention and interrogation program.[3][4] According to the 9th Circuit opinion in the case, Abu Zubaydah was subjected to “enhanced interrogation techniques” by two now-former CIA contractors, James Elmer Mitchell and John Jessen; the European Court on Human Rights ruled that Abu Zubaydah's treatment amounted to torture.[3] Zubaydah was later transferred to the U.S. government's detention facility at the Guantanamo Bay Naval Base in Cuba.[3]

    In 2017, Abu Zubaydah intervened in a Polish criminal investigation into the CIA’s detention and interrogation program, including Abu Zubaydah's detention there. Abu Zubaydah filed an ex parte application with the U.S. District Court for the Eastern District of Washington to compel the U.S. government to submit deposition testimony from the former contractors Jessen and Mitchell as part of that investigation. The United States filed a statement with the court arguing that the application should not be granted since some of the relevant documents were classified and privileged as state secrets. The Eastern District of Washington concluded that the government’s concerns were hypothetical and could be raised at a later point in the proceedings, and granted Abu Zubaydah's application. Jessen and Mitchell were subpoenaed for depositions. The U.S. government moved to quash the subpoenas, citing the U.S. Supreme Court's ruling in United States v. Reynolds. In that case, the Supreme Court set precedence for courts to prevent the disclosure of state secrets by excluding privileged evidence and/or dismissing cases outright if U.S. national security interests are at issue. The district court quashed the subpoenas, dismissing the application.[3]

    On appeal, the United States Court of Appeals for the 9th Circuit agreed with the district court that some of the requested information was not privileged and that the government's assertion of the state-secrets privilege was valid over much of the requested details. However, the 9th Circuit held that the Eastern District of Washington erred in quashing the subpoenas in their totality instead of granting them related to nonprivileged information and allowing limited discovery. The 9th Circuit reversed the district court's ruling and remanded the case for further proceedings.[3]

    Questions presented

    The petitioner presented the following questions to the court:[2]

    Questions presented:
    “ Whether the court of appeals 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 (CIA) contractors on matters concerning alleged clandestine CIA activities.[5] ”

    Oral argument

    Audio

    Audio of oral argument:[6]



    Transcript

    Transcript of oral argument:[7]

    Outcome

    In a 7-2 vote, the court reversed the U.S. Court of Appeals for the 9th Circuit's ruling and remanded the case for further proceedings, holding that in the context of Zubaydah's discovery application, the 9th Circuit erred by ruling that Background|state-secrets privilege did not apply to information that could confirm or deny the existence of a CIA detention site in Poland. Justice Stephen Breyer delivered the opinion of the court except for parts Parts II-B-2 and III. Chief Justice John Roberts joined the opinion in full. Justices Clarence Thomas and Samuel Alito joined Part IV; Thomas filed an opinion concurring in part and concurring in the judgment, joined by Justice Alito. Justice Elena Kagan joined as to all but Parts III and IV and the judgment of dismissal; she also filed an opinion concurring in part and dissenting in part. Justice Neil Gorsuch filed a dissenting opinion, in which Justice Sonia Sotomayor joined. Justices Brett Kavanaugh and Amy Coney Barrett joined as to all but Part II-B-2; Kavanaugh filed an opinion concurring in part, in which Barrett joined.[1]

    Opinion

    In the court's majority opinion, Justice Stephen Breyer wrote:[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 (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.[5]

    		”
    —Justice Stephen Breyer

    Concurring opinion

    Justice Thomas

    Justice Clarence Thomas filed a concurring opinion, joined by Justice Samuel Alito.

    In his concurring opinion, Justice Thomas wrote:[1]

    “ The Court acknowledges that Abu Zubaydah’s need for discovery from two CIA contractors is “not great,” ante, at 15, but it declines to dismiss Zubaydah’s discovery application on that basis. Rather, the Court concludes that the Government “has provided a reasonable explanation” why Zubaydah’s proposed discovery “could significantly harm national security interests.” Ante, at 10. In my view, Zubaydah’s “dubious” need for the discovery he seeks requires dismissal of his discovery application, regardless of the Government’s reasons for invoking the state-secrets privilege. I, therefore, join only Part IV of the Court’s opinion.[5] ”
    —Justice Clarence Thomas

    Justice Kavanaugh

    Justice Brett Kavanaugh filed a concurring opinion, joined by Justice Amy Coney Barrett.

    In his concurring opinion, Justice Kavanaugh wrote:[1]

    “ I join all but Part II–B–2 of the Court’s opinion. I add this brief concurrence simply to be clear about my understanding of how the “formula of compromise” articulated in Reynolds works in practice. United States v. Reynolds, 345 U.S. 1, 9 (1953). ...


    ... In all events, once the court determines that the requested information falls within the state secrets privilege, “even the most compelling necessity” cannot overcome the privilege. Reynolds, 345 U. S., at 11; see also Totten, 92 U.S. 105. The privilege is absolute, not qualified.

    In state secrets cases, a court’s review from start to finish must be deferential to the Executive Branch. As this Court has long explained, the courts “have traditionally shown the utmost deference to Presidential responsibilities” in cases involving “military or diplomatic secrets,” United States v. Nixon, 418 U.S. 683, 710 (1974), and “have been reluctant to intrude upon the authority of the Executive in military and national security affairs,” Department of Navy v. Egan, 484 U. S. 518, 530 (1988).

    With that understanding of Reynolds, I join all but Part II–B–2 of the Court’s opinion.[5]

    		”
    —Justice Brett Kavanaugh

    Concurring in part and dissenting in part

    Justice Elena Kagan filed an opinion concurring in part and dissenting in part.

    In her opinion, Justice Kagan wrote:[1]

    “ Both sides have substantial interests in this case—the Government in safeguarding its relationships with foreign intelligence partners; Abu Zubaydah in obtaining information needed to right past wrongs. Sometimes, interests of that kind are wholly irreconcilable, and the state secrets privilege may then put an end to the suit. But that is not so here. The Government’s national-security concerns all relate to confirming the location of detention sites. Zubaydah requests evidence of a broader scope, concerning not just where he was detained, but also what happened there. The District Court, using established methods, can segregate the two kinds of evidence—protecting classified information about location while giving Zubaydah access to unclassified information about detention conditions and interrogation methods. I would remand the case to allow that process to go forward. So although I join the Court in much of its analysis, I respectfully dissent from its decision to dismiss this suit.[5] ”
    —Justice Elena Kagan

    Dissenting opinion

    Justice Neil Gorsuch filed a dissenting opinion, joined by Justice Sonia Sotomayor.

    In his dissent, Justice Gorsuch wrote:[1]

    “ There comes a point where we should not be ignorant as judges of what we know to be true as citizens. See Watts v. Indiana, 338 U. S. 49, 52 (1949). This case takes us well past that point. Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the Court acquiesces in that request. Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret. ...


    ... In the end, only one argument for dismissing this case at its outset begins to make sense. It has nothing to do with speculation that government agents might accidentally blurt out the word “Poland.” It has nothing to do with the fiction that Zubaydah is free to testify about his experiences as he wishes. It has nothing to do with fears about courts being unable to apply familiar tools to disaggregate discovery regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.[5]

    		”
    —Justice Neil Gorsuch

    Text of the opinion

    Read the full opinion here.

    October term 2021-2022

    See also: Supreme Court cases, October term 2021-2022

    The Supreme Court began hearing cases for the term on October 4, 2021. The court's yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.[8]

    The court agreed to hear 68 cases during its 2021-2022 term.[9] Four cases were dismissed and one case was removed from the argument calendar.[10]

    The court issued decisions in 66 cases during its 2021-2022 term. Three cases were decided without argument. Between 2007 and 2021, SCOTUS released opinions in 1,128 cases, averaging 75 cases per year.


    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 U.S. Supreme Court, United States v. Zubaydah, decided March 3, 2022
    2. ↑ 2.0 2.1 U.S. Supreme Court, "20-827 UNITED STATES V. ZUBAYDAH: QUESTIONS PRESENTED:," accessed April 26, 2021
    3. ↑ 3.0 3.1 3.2 3.3 3.4 3.5 United States Court of Appeals for the 9th Circuit, Husayn v. Mitchell, decided September 18, 2019
    4. ↑ SCOTUSblog, "Two cases on the state-secrets privilege," January 22, 2021
    5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    6. ↑ Supreme Court of the United States, "Oral Argument - Audio," accessed October 7, 2021
    7. ↑ Supreme Court of the United States, "Oral Argument - Transcript," accessed October 7, 2021
    8. ↑ SupremeCourt.gov, "The Supreme Court at Work: The Term and Caseload," accessed February 4, 2021
    9. ↑ Consolidated cases are counted as one case for purposes of this number.
    10. ↑ U.S. Supreme Court, "Order List: 593 U.S.," May 17, 2021
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