The state secrets privilege allows the government to prevent the disclosure of military and diplomatic secrets in litigation. There is little Supreme Court precedent regarding the privilege — the seminal case being United States v. Reynolds, 345 U.S. 1 (1953).
However, the Court has granted certiorari in two state secrets cases — U.S. v. Zubaydah, Dkt No. 20-827, and FBI v. Farzaga, No. 20-828. Zubaydah is scheduled for argument on October 6; Farzaga is to be argued on November 8. This post previews Zubaydah. The Ninth Circuit’s opinion in the case is Husayn v. Mitchell, 938 F.3d 1123, 1127 (9th Cir. 2019). (Zubaydah is also known as Zayn Husayn.)
Zubaydah has attracted a considerable amount of amici activity, as evidenced by the Court’s docket sheet for the case.
The State Secrets Privilege
The states secrets privilege is an ill-defined common-law privilege with deep roots. See Reynolds, 345 U.S. at 7 (discussing the privilege’s provenance in English and American law); Brief Of Evidence Law Professors As Amici Curiae In Support Of Respondents, U.S. v. Zubaydah, Dkt No. 20-827, AT 22-29 (August 19, 2021). Totten v. United States, 92 U. S. 105 (1875), arguably involved the privilege. There a Union spy sued to recover for services rendered on a contract he entered into with President Abraham Lincoln. The Court concluded, “[t]he secrecy which such contracts impose precludes any action for their enforcement. The publicity produced by an action would itself be a breach of a contract of that kind, and thus defeat a recovery.” Id. at 107.
In Reynolds, the seminal case regarding the privilege, three civilians onboard a military aircraft making a test flight died when the aircraft crashed. 345 U.S. at 3. The deceaseds’ widows brought a negligence suit against the Government under the Federal Tort Claims Act. During discovery, they sought production of the Air Force’s investigation of the crash. The Secretary of the Air Force invoked the state secrets privilege, asserting that the aircraft had been involved in a secret mission. Id. at 7. The district court ordered the government to produce the material; when the Government refused, the court imposed sanctions. Id. at 7. Ultimately, the Supreme Court upheld the Government’s invocation of the state secrets privilege.
The Court noted that several principles governing the doctrine’s application were clear, despite the paucity in caselaw defining the privileges’ contours. First, it noted, “[t]here must be formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.” Id, at 7-8.
Second, “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.” Id. at 8 (emphasis added). Reasoning from cases involving the privilege against self-incrimination, the Court concluded that the Government should be allowed to
satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When [it does so], the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.
Id. at 10. However, the Court must also consider the litigant’s need for the material at issue, and take that into account when deciding the extent to which it will “probe in satisfying itself that the occasion for invoking the privilege is appropriate.” Id. at 11. Where there is a strong showing of necessity, the claim of privilege should not be lightly accepted. However, “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Id. In the Court’s view, the Reynolds plaintiffs’ need for the withheld material was minimal. Id. In particular, there was no indication that the secret electronic equipment on the plane had caused the crash. Moreover, plaintiffs could have “adduce[d] the essential facts as to causation without resort to material touching upon military secrets.” Id.
The Court acknowledged lower court precedents holding that in a criminal prosecution the Government could invoke its evidentiary privileges “only at the price of letting the defendant go free.” But the rationale for such precedents, namely the “unconscionab[ility]” of allowing the Government to initiate a prosecution and then “deprive the accused of anything which might be material to his defense,” had little relevance in Reynolds. Reynold, the Court noted, involved a “civil forum, where the Government is not the moving party, but is a defendant,” and subject to liability “only on terms to which it has consented.” Id. at 12.
The Supreme Court also referenced the state secrets privilege in dicta in United States v. Nixon, 418 U.S. 683 (1974). The Court noted that in resisting production of material needed by the Special Prosecutor in pursuing criminal charges, President Nixon did not “place his claim of privilege on the ground they are military or diplomatic secrets.” The Court then noted that “[a]s to these areas of Art. II duties, the courts have traditionally shown the utmost deference to Presidential responsibilities.” Id. at 710 (referencing Reynolds). Such deference was not warranted when the President sought to protect other materials solely on the basis of his need for confidential deliberations with his advisors. Id. at 710-711.
In the Ninth Circuit, a three-part test, known as the Reynolds test, has evolved to determine when the state secrets privilege is applicable. See, Al-Haramain Islamic Foundation v. Bush, 507 F.3d 1190, 1202 (9th Cir. 2007). First, the claim of privilege must be made by the head of the department that has control over the matter. Second, the court, without compelling disclosure of the privileged information, must determine whether the circumstances are appropriate to apply the state secrets privilege. Third, the Court must determine how the matter should proceed if it upholds the government assertion of the privilege. See, Mohamed v. Jeppesen Dataplan, 614 F.3d 1070 (9th Cir. 2010).
Of course, the Freedom of Information Act (FOIA) has an overlapping exemption to protect military and diplomatic secrets, but that exemption is far more precisely defined. Exemption 1 exempts records
(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
Moreover, several statutes mandating government protection of national security information from disclosure qualify as Exemption 3 statutes under FOIA. Some of the issues addressed in FOIA cases are similar to ones that the court may address in Zubaydah.
The FOIA context differs from the typical context in which the state secrets privilege is raised. FOIA does not permit an agency or court to prohibit further dissemination of records provided pursuant to FOIA request. Yonemoto v. Dep’t of Veteran Affairs, 686 F.3d 681, 689-90 (9th Cir. 2012); see, Nat’l Archives & Records v. Favish, 541 U.S. 157, 174 (2004). Courts, however, may issue protective orders that limit dissemination of information produced in discovery. Thus only if information is used in open court does it become public in the way that documents released by way of FOIA enter the public sphere.
U.S. v. Zubaydah: Factual Background and Lower Court Consideration
Zubaydah’s Capture and Treatment in Poland at the Hands of the CIA
Shortly after the war in Afghanistan commenced, the press began reporting on the existence of CIA “black sites” at which CIA operatives subjected high-value “enemy combatants” to enhanced interrogation techniques. The black sites, located in third countries, were operated with the knowledge and cooperation of those countries’ governments. The Senate Select Committee on Intelligence’s comprehensive review of the CIA’s detention and interrogation program, released with redactions to protect classified information in 2014, confirmed such sites’ existence, and the CIA’s use of enhanced interrogation techniques at those sites. The Committee also declared that the enhanced interrogation techniques employed at those sites constituted “torture.” The report is available here.
Abu Zubaydah, an al Qaeda operative, was captured by the CIA acting in conjunction with Pakistani armed forces. The CIA believed that Zubaydah possessed information regarding al-Qaeda’s future plans. The agency’s belief ultimately proved erroneous. Zubaydah was allegedly transferred to two black sites the CIA operated in Poland, where he was subjected to enhanced interrogation techniques. Two psychotherapists, James Mitchell and Bruce Jessen, were allegedly involved in designing the interrogation program used on Zubaydah. Zubaydah suffered permanent brain damage (manifested in numerous seizures) and the loss of his left eye as a consequence of the CIA’s interrogation efforts. Husayn v. Mitchell, 938 F.3d at 1127.
Zubaydah sought to hold the Polish authorities who had cooperated with the CIA criminally accountable under Polish law. He succeeded in getting Polish prosecutors to begin a criminal investigation into Polish officials’ role in Zubaydah’s interrogations that had occurred on Polish soil. The United States Government refused to cooperate with the Polish prosecutors. The Polish prosecutors sought Zubaydah’s lawyers’ assistance in securing needed information. Id. at 1127-28.
The District Court Litigation Over the Mitchell/Jesson Subpoenas
Zubaydah, through his lawyers, applied for an ex parte order for discovery, under 28 U.S.C. §1782(a), in the District Court for the Eastern District of Washington State. Under §1782(a), a district court may order a person in its district to testify or produce evidence for use in a foreign proceeding. However, the court cannot compel testimony in contravention of a legally applicable privilege.
Moreover, in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the Supreme Court laid out four factors that bear consideration in ruling on a §1782(a) request. First, the court should consider whether the person from whom the information was sought was subject to the jurisdiction of the foreign tribunal and thus could be ordered to produce documents and testimony by that tribunal. Second, the nature of the foreign tribunal and its proceeding (including the receptivity of the foreign government or tribunal to American judicial assistance) should be taken into account. Third, the court should assess whether the §1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of either the foreign country or the United States. Fourth, it should consider whether the request was unduly intrusive or burdensome. Intel Corp., 542 U.S. at 264-65.
Zubaydah sought to compel former CIA contractors Mitchell and Jessen to sit for depositions. The district court issued the subpoenas. The United States Government moved to quash, asserting the state secrets privilege. Id. at 1129.
In support of its invocation of the state secrets privilege, the Government submitted an affidavit from then CIA director Michael (“Mike”) Pompeo. Pompeo asserted that information regarding the location of CIA detention sites and the identities of the CIA’s foreign partners remained classified. Id. at 1129. He explained that the failure to protect such information would compromise the mutual trust and confidence needed to secure foreign intelligence services’ cooperation. Pompeo acknowledged the wide-spread public speculation regarding the countries involved in the CIA programs, but maintained that compelling CIA contractors to confirm or deny such speculation would itself result in significant harm to national security. Id. at 1132.
The district court granted the government’s motion to quash the subpoenas. Id. at 1129. The District Judge concluded the CIA’s involvement in Poland was not a state secret, but agreed that other information was protected by the state secrets privilege. Id. In particular, the state secrets privilege encompassed the details of foreign governments’ cooperation with the CIA, including identities of foreign individuals, and thus such information must not be disclosed.
The Ninth Circuit’s Decision and Denial of En Banc Consideration
The Ninth Circuit reviewed the district court’s factual findings for clear error and its application of the state secrets doctrine de novo. Id. at 1130. It agreed with the district court that much of the evidence Zubaydah sought was covered by the state secrets privilege. Id. at 1134. However, it also agreed that some of the information fell outside the state secrets privilege.
The Ninth Circuit panel then identified three circumstances under which the state secrets privilege would justify dismissing a case. Id. at 1135. First dismissal is appropriate when a plaintiff cannot establish a claim with non-privileged information. Id. Second, dismissal is appropriate when the state secrets privilege limits the defendant’s ability to refute a claim. Id. Third dismissal is appropriate when the inseparability of privileged and non-privileged material make it impossible to proceed. The Ninth Circuit agreed with the district court that only the third category was at issue with respect to Zubaydah’s §1782(a) request. However, the Ninth Circuit did not agree that the record had established the impossibility of separating privileged and non-privileged information. Id. In its view, the district court had too hastily dismissed the case.
Judge Gould, dissenting, argued that the majority had jeopardized significant national security interests. Id. at 1138 (Gould, J., dissenting). In his view, the record established the inseparability of privileged and non-privileged information. He cautioned that coming close to the line of state secrets can result in actually overstepping that line and compromising state security. Id.
Judge Gould also questioned the applicability of the Reynolds test. First, unlike in Reynolds, Zubaydah’s request could result in foreign prosecution of foreign nationals who may have cooperated with the U.S. Government. Second, the information would be destined for foreign country. In his view, the Reynolds test had to be modified to take into account the risks posed by providing sensitive information to a legal system totally beyond the judicial control mechanisms of a domestic court. Id. at 1140.
The Government’s petition for rehearing en banc was denied, but reveal a sharp split among the judges of the Ninth Circuit. Husayn v. Mitchell, 965 F.3d 775 (9th Cir. 2020). Judge Bress issued a dissent for himself and 11 other judges, which previewed many of the arguments the Government would ultimately make in the Supreme Court. Judge Paez answered the dissent on behalf of himself and two other judges. The Government successfully petitioned for certiorari.
Part II of this post will discuss six questions that may be addressed when the Supreme Court considers the case.
 In 2009, the Government instituted a review procedure before asserting the state secrets privilege in litigation. The procedure requires high-level Justice Department review of the appropriateness of the agency’s proposed invocation the state secrets privilege, and permits the invocation of the privilege only if the the Attorney General personally approves of its invocation. Office of the Attorney General, Policies and Procedures Governing Invocation of the State Secrets Privilege 1-3 (Sept. 23, 2009). All invocations of the privilege are reported to Congress. Id.
 Three years earlier, in New York Times v. United States, 403 U.S. 713 (1971), Justice Harlan, for himself and Justices Burger and Blackmun, had laid out a very limited scope of review for an Executive Branch assertion that the disclosure of classified information would harm the United States. He asserted that “[t]he power to evaluate the ‘pernicious influence’ of premature disclosure is not, however, lodged in the Executive alone.” Id. at 757 (Harlan, J., dissenting). Analogizing to the state secrets privilege, Justice Harlan asserted that the Judiciary’s sole role was: (1) to review the Executive determination “to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President’s foreign relations power,” and “insist that the determination be made by the head of the Executive Department concerned” after “actual personal consideration.” Id. The Court could not “redetermine for itself the probable impact of disclosure on the national security.” Id.
 Polish prosecutors had previously sought to investigate Zubaydah’s claims, but American authorities had refused to cooperate with the investigation. Polish authorities closed the investigation, whereupon Zubaydah filed a petition with the European Court of Human Rights. The Court ultimately ordered Poland to re-institute its criminal investigation. Husayn v. Mitchell, 938 F.3d at 1127-28.
 Ironically, the U.S. Supreme Court will hear another case involving 28 U.S.C. §1782(a) this term. In Servotronics Inc. v. Rolls-Royce PLC, No. 20-794, the Court will address the question of whether section 1782(a) allows courts to provide assistance in gathering evidence to private commercial arbitral tribunals.