United States v. Husayn

United States v. Husayn

Opinion

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 [*7]  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 [*8]  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.

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.

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