Zayn Al-Abidin Husayn v. United States ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZAYN AL-ABIDIN MUHAMMAD No. 18-35218
HUSAYN; JOSEPH MARGULIES,
Petitioners-Appellants, D.C. No.
2:17-cv-00171-
v. JLQ
JAMES ELMER MITCHELL; JOHN
JESSEN, OPINION
Respondents,
UNITED STATES OF AMERICA,
Intervenor-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted March 5, 2019
Seattle, Washington
Filed September 18, 2019
Before: Ronald M. Gould and Richard A. Paez, Circuit
Judges, and Dean D. Pregerson, * District Judge.
*
The Honorable Dean D. Pregerson, United States District Judge
for the Central District of California, sitting by designation.
2 HUSAYN V. UNITED STATES
Opinion by Judge Paez;
Dissent by Judge Gould
SUMMARY **
State Secrets Privilege / Subpoena
The panel reversed the district court’s order quashing a
subpoena sought by Abu Zubaydah, who is currently held at
the U.S. detention facility in the Guantanamo Bay Naval
Base in Cuba, and his attorney (“Petitioners”), and
dismissing the case in its entirety.
Petitioners filed an ex parte application for discovery
pursuant to 28 U.S.C. § 1782, and sought an order to
subpoena James Elmer Mitchell and John Jessen for their
depositions for use in an ongoing criminal investigation in
Poland about the torture to which Abu Zubaydah was
subjected in that country. The district court originally
granted the discovery application, but subsequently quashed
the subpoenas after the U.S. government intervened and
asserted the state secrets privilege.
The panel agreed with the district court that certain
information requested was not privileged because it was not
a state secret that would pose an exceptionally grave risk to
national security. The panel agreed that the government’s
assertion of the state secrets privilege was valid over much
of the information requested. The panel concluded,
however, that the district court erred in quashing the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HUSAYN V. UNITED STATES 3
subpoenas in toto rather than attempting to disentangle
nonprivileged from privileged information. The panel
remanded for further proceedings.
Judge Gould dissented, and would affirm the district
court. Judge Gould would defer to the view of then-CIA
Director and current Secretary of State Michael Pompeo that
the disclosure of secret information in this proceeding
“reasonably could be expected to cause serious, and in many
instances, exceptionally grave damage to U.S. national
security.”
COUNSEL
David F. Klein (argued) and John Chamberlain, Pillsbury
Winthrop Shaw Pittman LLP, Washington, D.C.; Jerry
Moberg, Jerry Moberg & Associates, Ephrata, Washington;
for Petitioners-Appellants.
H. Thomas Byron III (argued), Appellate Staff; Joseph H.
Harrington, United States Attorney; Civil Division, United
States Department of Justice, Washington, D.C.; for
Intervenor-Appellee.
4 HUSAYN V. UNITED STATES
OPINION
PAEZ, Circuit Judge:
Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) 1
is currently held at the U.S. detention facility in the
Guantanamo Bay Naval Base in Cuba. Abu Zubaydah was
formerly detained as part of the Central Intelligence Agency
(“CIA”)’s detention and interrogation program, also
commonly known as the post-9/11 “enhanced interrogation”
or torture program. In 2017, Abu Zubaydah and his attorney,
Joseph Margulies (collectively “Petitioners”), filed an ex
parte application for discovery pursuant to 28 U.S.C. § 1782,
which permits certain domestic discovery for use in foreign
proceedings. They sought an order to subpoena James Elmer
Mitchell and John Jessen for their depositions for use in an
ongoing criminal investigation in Poland about the torture to
which Abu Zubaydah was subjected in that country. The
district court originally granted the discovery application,
but subsequently quashed the subpoenas after the U.S.
government intervened and asserted the state secrets
privilege.
The Supreme Court has long recognized that in
exceptional circumstances, courts must act in the interest of
the country’s national security to prevent the disclosure of
state secrets by excluding privileged evidence from the case
and, in some instances, dismissing the case entirely. See
Totten v. United States, 92 U.S. 105 (1875); see also United
States v. Reynolds, 345 U.S. 1 (1953). This appeal presents
a narrow but important question: whether the district court
1
Abu Zubaydah’s birth name was Zayn al-Abidin Muhammad
Husayn but he is known as Abu Zubaydah in litigation and public
records.
HUSAYN V. UNITED STATES 5
erred in quashing the subpoenas after concluding that not all
the discovery sought was subject to the state secrets
privilege.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we reverse. We agree with the district court that certain
information requested is not privileged because it is not a
state secret that would pose an exceptionally grave risk to
national security. We also agree that the government’s
assertion of the state secrets privilege is valid over much of
the information requested. We conclude, however, that the
district court erred in quashing the subpoenas in toto rather
than attempting to disentangle nonprivileged from
privileged information.
We have “emphasize[d] that it should be a rare case
when the state secrets doctrine leads to dismissal at the outset
of a case.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d
1070, 1092 (2010) (en banc); see also Reynolds, 345 U.S.
at 9–10 (noting that “[j]udicial control over the evidence in
a case cannot be abdicated to the caprice of executive
officers”). Here, the underlying proceeding is a limited
discovery request that can be managed by the district court,
which is obligated “to use its fact-finding and other tools to
full advantage before it concludes that the rare step of
dismissal is justified.” Mohamed, 614 F.3d at 1093. We
therefore reverse the district court’s judgment dismissing
Petitioners’ section 1782 application for discovery and
remand for further proceedings. 2
2
Because the district court granted the motion to quash based on the
state secrets privilege, it did not address the government’s alternative
arguments under the Central Intelligence Agency Act, 50 U.S.C. § 3507,
and the National Security Act, 50 U.S.C. § 3024(i). If relevant, the
district court may consider these arguments on remand.
6 HUSAYN V. UNITED STATES
I.
A.
In late March 2002, Pakistani government authorities,
working with the CIA, captured Abu Zubaydah in Pakistan.
At the time, Abu Zubaydah was thought to be a high-level
member of Al-Qa’ida 3 with detailed knowledge of terrorist
plans. A 2014 report by the Senate Select Committee on
Intelligence Study on the CIA’s detention and interrogation
program (“Senate Select Committee Report”) later revealed
this characterization to be erroneous.
In the first four years of his detention, Abu Zubaydah
was held as an enemy combatant and transferred to various
secret CIA “dark sites” for interrogation. Journalists, non-
governmental organizations, and Polish government
officials have widely reported that one of those sites was in
Poland. In 2015, the European Court on Human Rights
(“ECHR”) found that Abu Zubaydah was detained at a CIA
site in Poland from December 2002 to September 2003.
Numerous sources also confirm that Abu Zubaydah was
subjected to so-called “enhanced interrogation” techniques
while detained at these CIA sites. These techniques were
proposed and developed by Mitchell and Jessen, 4 who at that
3
For consistency, we employ the spelling used by the Senate Select
Committee Report in this opinion.
4
Mitchell and Jessen are referred to as “SWIGERT” and
“DUNBAR” in the Senate Select Committee Report, and have admitted
to their involvement with the CIA program in a separate lawsuit, Salim
v. Mitchell, No. 2:15-cv-286-JLQ, Answer to Complaint and Affirmative
Defenses (E.D. Wash. June 16, 2016) (“Salim”).
HUSAYN V. UNITED STATES 7
point were independent contractors for the CIA. They
worked on “novel interrogation methods” intended to break
down Abu Zubaydah’s resistance, including the use of
insects—to take advantage of his entomophobia—and mock
burial. The details of Abu Zubaydah’s treatment during this
period are uncontroverted: he was persistently and
repeatedly waterboarded; he spent hundreds of hours in a
“confinement box,” described as coffin-sized; he was
subjected to various combinations of interrogation
techniques including “walling, 5 attention grasps, 6 slapping,
facial hold, stress positions, cramped confinement, white
noise and sleep deprivation”; his food intake was
manipulated to minimize the potential of vomiting during
waterboarding. To use colloquial terms, as was suggested
by the Senate Select Committee Report, Abu Zubaydah was
tortured.
The ECHR found that some of this torture took place in
Poland. Mitchell and Jessen traveled to the CIA black site
there at least twice to supervise the interrogations.
Declassified CIA cables confirm Mitchell’s and Jessen’s
involvement in Abu Zubaydah’s torture. Abu Zubaydah was
eventually transferred to a succession of facilities outside of
Poland before arriving in Guantanamo Bay, where he
remains today. Abu Zubaydah has allegedly sustained
permanent brain damage and physical impairments,
5
According to a declassified U.S. Department of Justice Office of
Legal Counsel (“OLC”) memo, “walling” refers to when an individual
is firmly pushed against a flexible false wall, hitting the shoulder blades,
to create the sensation of physical impact that is worse than it is.
6
The same OLC memo describes “attention grasp” to consist of
grasping an individual with both hands, one hand on each side of the
collar opening, in a controlled and quick motion, drawing the individual
toward the interrogator.
8 HUSAYN V. UNITED STATES
including over 300 seizures in the span of three years and the
loss of his left eye.
In 2010, Abu Zubaydah’s attorneys and certain
humanitarian organizations filed a criminal complaint in
Poland on his behalf seeking to hold Polish officials
accountable for their complicity in his unlawful detention
and torture. That investigation closed without any
prosecutions or convictions. In 2013, Abu Zubaydah’s
attorneys filed an application with the ECHR alleging that
Poland had violated the Convention for the Protection of
Human Rights and Fundamental Rights and failed to
undertake a proper investigation. This resulted in the
ECHR’s decision in Case of Husayn (Abu Zubaydah) v.
Poland, No. 7511/13, Eur. Ct. H.R. (2015). The court found
“beyond reasonable doubt” that Abu Zubaydah was detained
in Poland, that “the treatment to which [he] was subjected by
the CIA during his detention in Poland . . . amount[ed] to
torture,” and that Poland had failed to abide by its
obligations under the European Convention on Human
Rights. The court accordingly awarded damages to Abu
Zubaydah.
After the ECHR issued its decision—finding, among
other things, that Poland failed to sufficiently investigate
human rights violations related to Abu Zubaydah’s treatment
in Poland—Polish authorities reopened their investigations
into the violations, focusing on the culpability of Polish
citizens and government officials in Abu Zubaydah’s
detention. The Polish government requested evidence from
the United States through the Mutual Legal Assistance
Treaty (“MLAT”) between the two countries. The United
States denied the Polish government’s request.
Subsequently, Polish prosecutors followed up with Abu
HUSAYN V. UNITED STATES 9
Zubaydah’s lawyers to ask for assistance with obtaining
evidence necessary to pursue the prosecution. 7
B.
Abu Zubaydah and his attorney, Margulies, filed an ex
parte application for discovery in the Eastern District of
Washington pursuant to 28 U.S.C. § 1782. Section 1782
provides that “[t]he district court of the district in which a
person resides or is found may order him to give his
testimony or statement or to produce a document or other
thing for use in a proceeding in a foreign or international
tribunal.” Abu Zubaydah and his attorney sought a
discovery order subpoenaing Mitchell and Jessen to produce
documents and give deposition testimony for use in the
ongoing criminal investigation in Poland.8 They requested
that Mitchell and Jessen provide, among other related items,
documents concerning the detention facility in Poland, the
identities of Polish officials involved in the establishment or
operation of the detention facility, the use of interrogation
techniques, conditions of confinement and torture of those
being held, and any contracts made between Polish
government officials or private persons residing in Poland
and U.S. personnel for use of the property upon which the
detention facilities was located.
7
Under Polish law, victims of crimes under investigation, like Abu
Zubaydah, have a right to submit evidence through counsel to aid in the
Polish Prosecutor’s Office’s investigation.
8
Mitchell and Jessen co-founded Mitchell, Jessen & Associates,
which is headquartered in Spokane, Washington, and Jessen resides in
Spokane. Hence, they both “reside[] or [are] found” in the relevant
district. 28 U.S.C. § 1782.
10 HUSAYN V. UNITED STATES
The United States submitted a “Statement of Interest”
arguing that the district court should not grant Abu
Zubaydah’s application based on the four factors outlined in
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241
(2004). 9 The district court evaluated the section 1782
application under the Intel factors and found that the Intel
factors weighed in favor of granting the application for
discovery. It noted that the government’s concerns
regarding privilege and classification of documents were
hypothetical and could be raised at a later point. The district
court granted the application and Petitioners served the
subpoenas on Mitchell and Jessen.
9
The four Intel factors are: (1) whether the person from whom
discovery is sought is a participant in the foreign proceeding; (2) the
nature of the foreign tribunal, the character of the proceedings underway
abroad and the receptivity of the foreign government to U.S. federal-
court assistance; (3) whether the discovery request is an attempt to
circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States; and, (4) whether the discovery
request is unduly intrusive or burdensome. Intel, 542 U.S. at 264–65.
The third Intel factor allows the court to consider the potential for abuse
of discovery for use in the foreign court. Id. at 265. “Once the court has
determined that such abuses are unlikely,” and grants the section 1782
application, “the ordinary tools of discovery management, including
[Federal Rule of Civil Procedure] 26, come into play; and with
objections based on the fact that discovery is being sought for use in a
foreign court cleared away, section 1782 drops out.” Heraeus Kulzer,
GmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011) (citing
Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 377–78 (5th Cir.
2010); Weber v. Finker, 554 F.3d 1379, 1384–85 (11th Cir. 2009)). In
other words, once a section 1782 application is granted, the ordinary
rules of civil procedure relating to discovery shift into place.
HUSAYN V. UNITED STATES 11
After Mitchell and Jessen entered their appearance in
district court, 10 the U.S. government filed a motion to
intervene and a motion to quash the subpoenas. In support
of the latter motion, the government made three arguments.
First, it argued that the district court lacked jurisdiction over
the case under 28 U.S.C. § 2241(e)(2), which strips
jurisdiction for courts to hear or consider any nonhabeas
action against the United States or its agents relating to any
aspect of the detention, transfer, treatment, trial or conditions
of confinement of a designated enemy combatant outside the
provisions of the Detainee Treatment Act of 2005, 10 U.S.C.
§ 801. Second, the government argued that the discovery
sought is protected by the state secrets privilege, relying on
two declarations from then-CIA Director, Michael
Pompeo. 11 Third, it argued that both the National Security
Act of 1947 and the Central Intelligence Agency Act of 1949
prohibit the discovery sought.
The district court granted the government’s motion to
intervene and motion to quash the subpoenas. The court
rejected the government’s first argument regarding the lack
of jurisdiction, noting that the government offered nothing
to establish an agency relationship between Mitchell and
Jessen and the United States. The court then applied the
three-part test outlined in Mohamed, 614 F.3d at 1080, to
evaluate the government’s assertion of the state secrets
10
Neither Mitchell nor Jessen opposed the discovery requested in
this case and have taken no position on the issues in this appeal.
11
Pompeo submitted a declaration addressing Petitioners’ section
1782 application and incorporated a prior declaration that he submitted
in the Salim lawsuit.
12 HUSAYN V. UNITED STATES
privilege. 12 First, it found that the government had followed
the procedural requirements for invoking the privilege.
Second, it concluded that the fact of the CIA’s involvement
with a facility in Poland was not a state secret that posed an
exceptionally grave risk to national security. The court
agreed, however, that other information, such as the roles
and identities of Polish citizens involved with the CIA site,
is covered by the state secrets privilege. Third, the court
concluded that “[m]eaningful discovery cannot proceed in
this matter without disclosing information that the
Government contends is subject to the state secrets
privilege,” and thus it granted the motion to quash the
subpoenas in their entirety and entered judgment. Abu
Zubaydah and Margulies timely appealed.
II.
“We review de novo the interpretation and application of
the state secrets doctrine and review for clear error the
district court’s underlying factual findings.” Mohamed,
614 F.3d at 1077 (citing Al-Haramain Islamic Found., Inc.
v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007)).
12
Although the state secrets doctrine encompasses a complete bar
under Totten, 92 U.S. at 107, and an evidentiary privilege under
Reynolds, 345 U.S. at 7–8, the district court correctly concluded that the
Totten bar does not apply in this case because the very subject matter of
the action—the CIA’s enhanced interrogation program—is not a state
secret. See Mohamed, 614 F.3d at 1085–89 (applying Reynolds privilege
analysis); see also El-Masri v. United States, 479 F.3d 296, 307–10 (4th
Cir. 2007) (same).
HUSAYN V. UNITED STATES 13
III.
Petitioners argue that the district court erred in quashing
the subpoenas in their entirety based on the state secrets
privilege. The parties essentially disagree over the proper
analysis under steps two and three under Reynolds. 13
A.
Before reviewing the district court’s decision, we
provide some brief background on the state secrets privilege.
The privilege derives from a common law doctrine that
“encompasses a ‘privilege against revealing military [or
state] secrets, a privilege which is well established in the law
of evidence.’” Mohamed, 614 F.3d at 1079 (alterations in
original) (quoting Reynolds, 345 U.S. at 6–7). “The
privilege is not to be lightly invoked.” Al-Haramain,
507 F.3d at 1196. “A successful assertion of privilege under
Reynolds will remove the privileged evidence from the
litigation.” Mohamed, 614 F.3d at 1079. “Unlike the Totten
bar, a valid claim of privilege under Reynolds does not
automatically require dismissal of the case.” Id. Assertion
of the state secrets privilege “will require dismissal [where]
it . . . become[s] apparent during the Reynolds analysis that
13
We are not persuaded by the government’s alternative argument
that the district court’s decision can be affirmed as an exercise of
discretion to deny section 1782 discovery requests. First, the district
court exercised its discretion to grant the section 1782 application after
applying the Intel factors. That order is not on appeal. Moreover, the
order that was appealed was not a discretionary one. The district court
concluded that it was required by the state secrets privilege to quash the
subpoenas. The government’s attempt to challenge the district court’s
first order seeks to avoid the discretion expressly given to district courts
over section 1782 applications. See Intel, 542 U.S. at 255–61 (rejecting
categorical limitations on section 1782’s reach based on the statute’s text
and legislative history giving discretion to the district court).
14 HUSAYN V. UNITED STATES
the case cannot proceed without privileged evidence, or that
litigating the case to a judgment on the merits would present
an unacceptable risk of disclosing state secrets.” Id.
The Supreme Court identified and applied the state
secrets privilege in Reynolds, where three estates filed
wrongful-death suits against the government following the
untimely deaths of three civilian observers during a test
flight of a B-29 bomber. 345 U.S. at 3. In discovery,
plaintiffs sought production of the Air Force’s official
accident investigation report and the statements of three
surviving crew members. Id. The Air Force refused to
produce the materials, citing the need to protect national
security and military secrets because the aircraft and
personnel on board “were engaged in a highly secret
mission,” id. at 4, and the material could reveal information
about the “development of highly technical and secret
military equipment,” id. at 5. The district court ordered the
government to produce the documents in camera so that the
court could determine whether they contained privileged
material. When the government refused, the district court
imposed sanctions and ruled against the government on the
issue of negligence. Id. The Court of Appeals affirmed. Id.
The Supreme Court reversed and sustained the
government’s assertion of privilege after concluding, “from
all the circumstances of the case, that there [wa]s a
reasonable danger that compulsion of the evidence will
expose military matters which, in the interest of national
security, should not be divulged.” Id. at 10. In reaching this
conclusion, the Court noted “that this is a time of vigorous
preparation for national defense” and that “air power is one
of the most potent weapons in [the United States’] scheme
of defense.” Id. Rather than dismissing the case, however,
the Court noted that it could be possible for the plaintiffs “to
HUSAYN V. UNITED STATES 15
adduce the essential facts as to causation [in support of their
tort claims] without resort to material touching upon military
secrets,” and remanded for further proceedings. Id. at 11–
12.
Based on Reynolds, we identified three steps for
analyzing claims of the state secrets privilege:
First, we must ascertain that the procedural
requirements for invoking the state secrets
privilege have been satisfied. Second, we
must make an independent determination
whether the information is privileged.
Finally, the ultimate question to be resolved
is how the matter should proceed in light of
the successful privilege claim.
Mohamed, 614 F.3d at 1080 (internal alterations and
quotation marks omitted) (quoting Al-Haramain, 507 F.3d
at 1202). The parties do not contest that the government
fulfilled the first requirement by filing the declarations from
then-CIA Director Pompeo, who formally asserted the state
secrets privilege with specificity in this case. See Reynolds,
245 U.S. at 7–8 (“There must be a formal claim of privilege,
lodged by the head of the department which has control over
the matter, after actual personal consideration by that
officer.”). We therefore proceed to the second and third
steps of the Reynolds test.
B.
“When the privilege has been properly invoked, ‘we
must make an independent determination whether the
information is privileged.’” Mohamed, 614 F.3d at 1081
(quoting Al-Haramain, 507 F.3d at 1202). “The court must
sustain a claim of privilege when it is satisfied, ‘from all the
16 HUSAYN V. UNITED STATES
circumstances of the case, that there is a reasonable danger
that compulsion of the evidence will expose . . . matters
which, in the interest of national security, should not be
divulged.’” Id. (quoting Reynolds, 345 U.S. at 10). “The
state secrets privilege has been held to apply to information
that would result in ‘impairment to the nation’s defense
capabilities, disclosure of intelligence-gathering methods or
capabilities, and disruption of diplomatic relations with
foreign governments, or where disclosure would be inimical
to national security.’” Fazaga v. Fed. Bureau of
Investigation, 916 F.3d 1202, 1227 (9th Cir. 2019) (quoting
Black v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995)).
We have on more than one occasion commented on the
difficulty of defining what constitutes a “state secret.” Id.
(noting “the ambiguity . . . at the outset”); Mohamed,
614 F.3d at 1082 (“We do not offer a detailed definition of
what constitutes a state secret.”).
Our guidance on evaluating the need for secrecy has
been contradictory. On the one hand, “we acknowledge the
need to defer to the Executive on matters of foreign policy
and national security and surely cannot legitimately find
ourselves second guessing the Executive in this area.” Al-
Haramain, 507 F.3d at 1203. On the other hand, “the state
secrets doctrine does not represent a surrender of judicial
control over access to the courts.” Mohamed, 614 F.3d
at 1082 (quoting El-Masri, 479 F.3d at 312). “Rather, ‘to
ensure that the state secrets privilege is asserted no more
frequently and sweepingly than necessary, it is essential that
the courts continue critically to examine instances of its
invocation.” Id. (quoting Ellsberg v. Mitchell, 709 F.2d 51,
58 (D.C. Cir. 1983)). “We take very seriously our obligation
to review the [claim] with a very careful, indeed a skeptical,
eye, and not to accept at face value the government’s claim
or justification of privilege.” Al-Haramain, 507 F.3d at
HUSAYN V. UNITED STATES 17
1203. For instance, “an executive decision to classify the
information is insufficient to establish that the information is
privileged.” Mohamed, 614 F.3d at 1082 (citing Ellsberg,
709 F.2d at 57). “Simply saying ‘military secret,’ ‘national
security’ or ‘terrorist threat’ or invoking an ethereal fear that
disclosure will threaten our nation is insufficient to support
the privilege.” Al-Haramain, 507 F.3d at 1203.
Here, the government asserts the state secrets privilege
over seven categories of information: (1) information that
could identify individuals involved in the CIA detention and
interrogation program; (2) information regarding foreign
government cooperation with the CIA; (3) information
pertaining to the operation or location of any clandestine
overseas CIA station, base, or detention facility;
(4) information regarding the capture and/or transfer of
detainees; (5) intelligence information about detainees and
terrorist organizations, including intelligence obtained or
discussed in debriefing or interrogation sessions;
(6) information concerning CIA intelligence sources and
methods, as well as specific intelligence operations; and,
(7) information concerning the CIA’s internal structure and
administration.
One of the Pompeo declarations asserts that the
discovery sought by Petitioners “would tend to confirm or
deny whether or not [Mitchell and Jessen] have information
about these categories as they pertain to whether or not the
CIA conducted detention and interrogation operations in
Poland and/or with the assistance of the Polish
Government.” Disclosure of the existence of a clandestine
intelligence relationship or the extent to which a foreign
government is covertly operating or sharing intelligence
would, according to Pompeo, cause significant harm to
national security because it would: (1) breach the trust on
18 HUSAYN V. UNITED STATES
which the relationship is based; (2) compromise the CIA’s
ability to obtain intelligence information or secure
cooperation in counterterrorism operations; and
(3) engender backlash from foreign governments.
Furthermore, Pompeo asserts that the specific locations of
CIA stations and information about former detention
facilities are generally classified as “SECRET” and “TOP
SECRET” respectively because acknowledging the location
of covert facilities could endanger the safety of CIA officers
and incite backlash from the host country.
Reviewing the government’s documents, we note that
much of the concern animating the assertion of the state
secret privilege is that harm might result from the
government’s disclosure of certain information—in
particular, confirming or denying the location of a CIA black
site—rather than a concern that harm might result from the
spread of the information per se. This is not surprising, as
substantial aspects of the information that the government
insists are privileged are basically public knowledge. 14 The
Pompeo declaration acknowledges that there have been
allegations by the media, nongovernmental organizations,
and former Polish government officials of the CIA operating
a detention facility in Poland. Pompeo explains that the
government cannot control what former foreign government
officials might choose to say, but that the absence of official
14
We cannot agree with the dissent that Article III judges are “not
in a position” to reach conclusions with publicly available facts. Dissent
at 31. Indeed, the dissent’s position appears to be inconsistent with our
essential obligation to review state secrets critically, with a skeptical eye.
See Mohamed, 614 F.3d at 1082 (quoting El-Masri, 479 F.3d at 312); Al-
Haramain, 507 F.3d at 1203. We note further that, in the context of
preliminary proceedings such as those here, we are not called upon to,
and do not, render any final decision on the merits.
HUSAYN V. UNITED STATES 19
confirmation from the CIA is the key to preserving an
“important element of doubt about the veracity of the
information.” 15
Even if we accept that logic, however, the government
fails to explain why discovery here could amount to such an
“official confirmation.” The conclusion that the existence of
a CIA site in Poland is not a secret is not equivalent to a
finding, either by the district court or this court, that the
government has taken any official position on the existence
of such a facility. Nothing in this opinion should be read to
suggest otherwise. As the district court found, neither
Mitchell nor Jessen are agents of the government. 16 The
government has not contested—and we will not disturb—
that finding. See Mohamed, 614 F.3d at 1077 (noting clear
error standard). As private parties, Mitchell’s and Jessen’s
disclosures are not equivalent to the United States
confirming or denying anything.
Moreover, in light of the record, we agree with the
district court that disclosure of certain basic facts would not
15
The district court, we note, did not accept the government’s
position, and did “not find convincing the claim that merely
acknowledging, or denying, the fact the CIA was involved with a facility
in Poland poses an exceptionally grave risk to national security.” We
need not and do not address that determination because, regardless
whether governmental acknowledgment would implicate national
security, as discussed below, nothing about the government’s
participation in discovery would constitute governmental
acknowledgement or denial of the site’s existence.
16
Despite so concluding, the district court inconsistently determined
at step three of the Reynolds analysis that the government’s participation
in discovery would constitute implicit governmental acknowledgment of
the program. As discussed herein, see infra at n.18, we do not share that
assessment.
20 HUSAYN V. UNITED STATES
“cause grave damage to national security.” Al-Haramain,
507 F.3d at 1195. First, we agree with the district court and
Petitioners that in order to be a “state secret,” a fact must first
be a “secret.” In other contexts where the state secrets
privilege was applied, the privilege was used to withhold
information that was not publicly accessible. See Mohamed,
614 F.3d at 1087 (“We are precluded from explaining
precisely which matters the privilege covers lest we
jeopardize the secrets we are bound to protect.”); id. at 1095
(Hawkins, J., joined by Schroeder, J., Canby, J., Thomas, J.,
and Paez, J., dissenting) (describing onerous procedure
undertaken to preserve a “‘cone of silence’ environment” for
us to review the sealed record en banc); Al-Haramain,
507 F.3d at 1203 (concluding that the “Sealed Document is
protected by the state secrets privilege” after reviewing it in
camera); Kasza v. Browner, 133 F.3d 1159, 1170 (9th Cir.
1998) (“Based on our in camera review of both General
Moorman’s and Secretary Widnall’s classified declarations,
. . . [w]e are convinced that release of such information
would reasonably endanger national security interests.”).
Insofar as the government asserts privilege over the basic
fact that the CIA detained Abu Zubaydah in Poland and that
he was subjected to torture there, this certainly does not
protect the disclosure of secret information, but rather
prevents the discussion of already disclosed information in a
particular case.
We note that the discovery request here comes indirectly
from current Polish authorities, specifically, prosecutors
who have been tasked by the ECHR and the Polish
government to investigate the circumstances surrounding
Abu Zubaydah’s detention in Poland. This is significant for
two reasons. First, it reaffirms our conclusion that the fact
that the CIA operated in Poland and possibly collaborated
with Polish individuals over Abu Zubaydah’s detention is
HUSAYN V. UNITED STATES 21
not a secret that would harm national security. Cf. Al-
Haramain, 507 F.3d at 1200 (noting how details given
through “voluntary disclosures made by various officials”
are not state secrets). Second, it undermines the asserted
national security risks outlined by Pompeo’s declarations,
such as breaching trust with the cooperating country or
generating backlash in that country. While we recognize the
legitimacy of these concerns, they appear less of a concern
when the other country—here, Poland—is investigating
criminal liability of the subject matter involved in this
discovery application.
Last, we emphasize the importance of striking “an
appropriate balance . . . between protecting national security
matters and preserving an open court system.” Id. at 1203.
While it is essential to guard the courts from becoming
conduits for undermining the executive branch’s control
over information related to national security, these concerns
do not apply when the alleged state secret is no secret at all,
but rather a matter that is sensitive or embarrassing to the
government. In other words, the rationale behind the state
secrets privilege is to protect legitimate government
interests, not to shield the government from uncomfortable
facts that may be disclosed or discussed in litigation.
Protecting the former is an unfortunate necessity in our
complicated world of national and international affairs.
Protecting the latter is inconsistent with the principle of an
independent judiciary.
Reviewing Petitioners’ request for documents, we agree
with the district court that much, although not all, of the
information requested by Petitioners is covered by the state
secrets privilege. For instance, documents, memoranda, and
correspondence about the identities and roles of foreign
individuals involved with the detention facility, operational
22 HUSAYN V. UNITED STATES
details about the facility, and any contracts made with Polish
government officials or private persons residing in Poland
might implicate the CIA’s intelligence gathering efforts. As
explained in the Pompeo declaration, disclosure of the
identities of foreign nationals who work with the CIA risks
damaging the intelligence relationship and compromising
current and future counterterrorism operations.
Nonetheless, we also agree with the district court that a
subset of information is not—at least in broad strokes—a
state secret, namely: the fact that the CIA operated a
detention facility in Poland in the early 2000s; information
about the use of interrogation techniques and conditions of
confinement in that detention facility; and details of Abu
Zubaydah’s treatment there. These facts have been in the
public eye for some years now, and we find no reason to
believe that Mitchell and Jessen testifying about these facts
“will expose . . . matters which, in the interest of national
security, should not be divulged.” Reynolds, 345 U.S. at 10.
We therefore reject the government’s blanket assertion of
state secrets privilege over everything in Petitioners’
discovery request. See Fazaga, 1202 F.3d at 1228
(reiterating “caution[] that courts should work ‘to ensure that
the state secrets privilege is asserted no more frequently and
sweepingly than necessary.’” (quoting Mohamed, 614 F.3d
at 1082)).
C.
At step three of the Reynolds analysis, we face the more
difficult task of determining how the matter should proceed
in light of a successful claim of privilege. 17 Mohamed,
17
As the dissent notes, our main disagreement is at the third
Reynolds step. Dissent at 30. The dissent’s concern about “walking
HUSAYN V. UNITED STATES 23
614 F.3d at 1082. We have held that, “whenever possible,
sensitive information must be disentangled from
nonsensitive information to allow for release of the latter.”
Id. (original alterations omitted) (quoting Kasza, 133 F.3d
at 1166; Ellsberg, 709 F.2d at 57). There are three limited
circumstances in which a successful claim of privilege
requires outright termination of the case: (1) where the
plaintiff cannot prove the prima facie elements of the claim
with nonprivileged evidence; (2) where the privilege
deprives that defendant of information that would have
otherwise given the defendant a valid defense to the claim;
or (3) where the claims and defenses might theoretically be
established without relying on the privileged evidence, but
“it may be impossible to proceed with the litigation
because—privileged evidence being inseparable from
nonprivileged information that will be necessary to the
claims or defenses—litigating the case to a judgment on the
merits would present an unacceptable risk of disclosing state
secrets.” Id. at 1083.
close” to “the line of actual state secrets” simply does not reflect the test
from Mohamed, which requires that nonsensitive information be released
“whenever possible.” Compare Dissent at 31, with Mohamed, 614 F.3d
at 1087–89. The dissent also asserts, without any support, that the
Reynolds step two analysis must also take into consideration the fact that
the information sought here is ultimately destined for a foreign tribunal
in Poland. Dissent at 34. A state secret, however, is a state secret in any
forum, domestic or foreign. The crux of the question is whether “there
is a reasonable danger that compulsion of the evidence will expose . . .
matters which, in the interest of national security, should not be
divulged.” Reynolds, 345 U.S. at 10. Moreover, the dissent’s analysis
of Reynolds fails to consider the district court’s authority to decide
whether discovery should be provided to Petitioners in the first instance.
Only then would Petitioners be able to provide any information to a
foreign tribunal.
24 HUSAYN V. UNITED STATES
The district court properly identified the third
circumstance as the only one potentially applicable to a
discovery proceeding such as this case. We agree with
Petitioners, however, that it is not impossible to separate
secret information, and that the district court was too quick
to quash the subpoenas and dismiss the case in its entirety. 18
Unlike our prior cases, this case is a pure discovery
matter where there are no claims to prove or defenses to
assert. 19 See Mohamed, 614 F.3d at 1075, 1093 (dismissing
18
The district court determined that the government’s
acknowledgment of the existence of a CIA facility in Poland would not
implicate a state secret, a conclusion we need not address nor that we
necessarily share. See supra at n.15. The district court nonetheless
proceeded to find dismissal appropriate under Reynolds step three
because, given that Petitioners made clear that they seek information
about Poland, “the Government participating could be viewed as implicit
confirmation of operation of the Program in Poland.” As mentioned
above, we reject that determination. See supra at n.16. The district
court’s inconsistent and erroneous view of the effect of the government’s
participation in discovery was fundamental to the court’s conclusion that
this case should be dismissed outright. The district court found that
implicit government acknowledgment, although “seemingly innocuous,”
was intertwined with state secrets. As we already noted, however,
nothing about the government’s participation in this case would
constitute official acknowledgment, implicit or otherwise. Thus, the
district court’s Reynolds step three conclusion was based entirely upon a
faulty predicate.
19
For this reason, the dissent’s reliance on Mohamed, Al-Haramain,
and Kasza is off-base. In those cases, plaintiffs sought information that
belonged to what the courts deemed a “classified mosaic.” Kasza,
133 F.3d at 1166. The courts were able to reach that conclusion because
they all underwent the process of reviewing the contested material to
determine that there was privileged information that could not be
disentangled. See Mohamed, 614 F.3d at 1095; Al-Haramain, 507 F.3d
at 1203; Kasza, 133 F.3d at 1170. That was an essential predicate to the
courts’ dismissal at step three of the Reynolds analysis. See, e.g.,
HUSAYN V. UNITED STATES 25
suit against a U.S. corporation under the Alien Tort Statute
based on its alleged involvement in the CIA extraordinary
rendition program); Al-Haramain, 507 F.3d at 1205
(dismissing lawsuit against the United States because
plaintiffs could not show standing without privileged
document); Kasza, 133 F.3d at 1162–63 (affirming dismissal
of citizen suits against the U.S. Air Force and Environmental
Protection agency). Section 1782 provides the district court
discretion to order an individual to give deposition testimony
or produce documents for use in a foreign proceeding
provided it does not violate “any legally applicable
privilege.” 28 U.S.C. § 1782(a). The government does not
challenge the district court’s exercise of that discretion or
application of the Intel factors. See supra at n.13. By the
terms of the statute, Petitioners can pursue any nonprivileged
discovery within the parameters set by the district court. 20
Mohamed, 614 F.3d at 1087 (“We have thoroughly considered plaintiffs’
claims, several possible defenses and the prospective path of this
litigation. We also have carefully and skeptically reviewed the
government’s classified submissions . . . We rely heavily on these
submissions, which describe the state secrets implicated here, the harm
to national security that the government believes would result from
explicit or implicit disclosure and the reasons why, in the government’s
view, further litigation would risk that disclosure.”).
Conversely, here, neither the district court nor we have had any
occasion to review the contested material to reach that threshold
question. Given the limited factual record, the dissent repeats the same
error that the district court made by assuming the truth of the
government’s assertions—that it would not be possible to disentangle the
privileged from nonprivileged—without first invoking available
discovery tools as required by Mohamed. See 614 F.3d at 1089.
20
We agree with Petitioners that, to the extent the district court
denied discovery because disclosure of some information “would not
seem to aid the Polish investigation,” the district court erred by imposing
26 HUSAYN V. UNITED STATES
Moreover, the record suggests that Petitioners can obtain
nonprivileged information from Mitchell and Jessen. At the
district court, Petitioners argued:
[W]e are here in order to understand the story
around [Abu Zubaydah’s claims in Poland]
. . . You know, what was the narrative, what
sort of treatment was Mr. Zubaydah
subjected to, what was the feeding regime,
how was he held, what medical care was he
given, and of course, yes, we want to know if
locals were involved in that and to what
extent.
...
Now, ideally, Your Honor, because we think
that these are not state secrets at this point in
time, we would prefer that Mitchell and
Jessen be permitted to testify as to the
identities of people and where it occurred.
But the prosecutor already knows where the
events occurred and my suspicion is he has a
good idea, although I’m not privy to the
specifics of his investigation, of who, you
know, who his targets are.
Even if Mitchell and Jessen are restricted from disclosing
state secrets such as the identities of individuals involved
with the detention facility, the non-secret information in
an extraneous requirement upon Petitioners. Whether discoverable
information may or may not be “useful” in foreign proceedings has no
bearing on whether the information is privileged.
HUSAYN V. UNITED STATES 27
their possession could provide context to Polish prosecutors
or corroborate prosecutors’ independent investigations.
More importantly, we conclude that the district court did
not adequately attempt to disentangle the privileged from
nonprivileged information. 21 As we noted in Mohamed, “the
standards for peremptory dismissal are very high and it is the
district court’s role to use its fact-finding and other tools to
full advantage before it concludes that the rare step of
dismissal is justified.” 614 F.3d at 1092–93; see also
Reynolds, 345 U.S. at 11–12 (remanding for further
proceedings where plaintiffs potentially could pursue their
tort action without using material touching upon military
secrets); cf. Heraeus, 633 F.3d at 597 (noting that once the
district court grants a section 1782 application, “the ordinary
tools of discovery management . . . come into play”).
Mitchell and Jessen have already provided nonprivileged
information similar to that sought here in the Salim lawsuit
before the district court, illustrating the viability of this
disentanglement. Excerpts of those depositions were
included in the record and reflect how depositions could
proceed in this case, such as with the use of code names and
21
See supra at n.18. This is an essential point that the dissent
overlooks: where Reynolds privilege is successfully asserted at steps one
and two, the default at step three is nonetheless to “whenever possible
. . . disentangle[] [the sensitive information] from nonsensitive
information to allow for the release of the latter.” Kasza, 133 F.3d
at 1166 (quoting Ellsberg, 709 F.2d at 57); see also Mohamed, 614 F.3d
at 1089 (“Dismissal at the pleading stage under Reynolds is a drastic
result and should not be readily granted.”). The dissent would flip the
default to dismissal, unless Petitioners met a newly imposed burden to
demonstrate a specific plan for disentanglement.
28 HUSAYN V. UNITED STATES
pseudonyms, where appropriate. 22 While this no doubt
imposes a burden on the government to participate in
discovery and object, where appropriate, 23 we have stressed
that cases should be dismissed only “in the[] rare
circumstances” that the district court is not able to employ
protective procedures to prevent disclosure of state secrets.
Mohamed, 614 F.3d at 1089. We are not convinced that
those rare circumstances exist here. On remand, the district
court may use the Pompeo declarations as a guide while
employing tools such as in camera review, protective orders,
and restrictions on testimony, see id., in tailoring the scope
of Mitchell’s and Jessen’s deposition and the documents
they may be required to produce.
IV.
We have grappled with the state secrets privilege on only
rare occasions. Given that the district court had only Kasza,
Al-Haramain and Mohamed as guides in conducting its
Reynolds analysis, we can understand why the district court
was so quick to dismiss the proceedings at the third step. The
court’s hasty dismissal, however, overlooked our “special
burden to assure . . . that an appropriate balance is struck
between protecting national security matters and preserving
22
The dissent attempts to distinguish the situation in Salim and faults
Petitioners for not presenting a viable disentanglement plan to the district
court. Dissent at 32–33. Again, this disregards the fact that the district
court never engaged in any disentanglement process or assessed what
protective measures could be utilized to accomplish disentanglement.
23
Eight U.S. government attorneys or experts were present at the
depositions of Mitchell and Jessen in Salim to ensure that nothing
confidential or privileged would be disclosed.
HUSAYN V. UNITED STATES 29
an open court system,” Mohamed, 614 F.3d at 1081 (quoting
Al-Haramain, 507 F.3d at 1203).
Our holding is a limited one: if, upon reviewing disputed
discovery and meaningfully engaging the panoply of tools at
its disposal, the district court determines that it is not
possible to disentangle the privileged from nonprivileged, it
may again conclude that dismissal is appropriate at step three
of the Reynolds analysis. However, the district court may
not skip directly to dismissal without doing more. “[A]s
judges, we strive to honor all of these principles [of justice,
transparency, accountability and national security],” and
while “there are times when exceptional circumstances
create an irreconcilable conflict between them,” id. at
1073—on the limited record before us, this is not one of
those times.
The world has moved on since we discussed the state
secrets privilege in Mohamed. In the near decade that has
passed, we have engaged in a public debate over the CIA’s
conduct during the early years of the war on terror. The
district court correctly recognized that the state secrets
privilege did not cover all the discovery sought by
Petitioners, but failed to recognize that complete dismissal
based on the state secrets privilege is reserved only for “rare
cases.” Id. at 1092.
REVERSED and REMANDED for further
proceedings.
30 HUSAYN V. UNITED STATES
GOULD, Circuit Judge, dissenting:
I respectfully dissent. The majority jeopardizes critical
national security concerns in the hope that the district court
will be able to segregate secret information from public
information that could be discovered. In this case, I would
defer to the view of then-CIA Director and now Secretary of
State Michael Pompeo that the disclosure of secret
information in this proceeding “reasonably could be
expected to cause serious, and in many instances,
exceptionally grave damage to U.S. national security.”
I
A major source of my disagreement with the majority
concerns Section III.C of the opinion, with its analysis of
step three of the United States v. Reynolds test. The majority
and I agree with the district court that information about
foreign nationals cooperating with the CIA, “operational
details about the facility,” and details about Poland’s
intelligence cooperation with the CIA are subject to the state
secrets privilege. We part ways with respect to how to
proceed with carving this kind of information out of
Petitioners’ broad discovery requests. Our circuit has
previously contemplated a situation in which, in the face of
the government’s successful claim of state secrets privilege,
“it may be impossible to proceed with the litigation
because—privileged evidence being inseparable from
nonprivileged information . . .—litigating the case . . . would
present an unacceptable risk of disclosing state secrets.”
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083
(9th Cir. 2010) (en banc). I would hold that this is such a
proceeding and affirm the district court.
HUSAYN V. UNITED STATES 31
I also note that, while step three is a major concern in
dissent, I am not in a position as an Article III judge to make
a conclusion that it is agreed that Abu Zubaydah was
detained and tortured in Poland. Doubtless there is much
media comment and some reasoning of the European Court
of Human Rights that looked at this matter suggesting that
conclusion. But while the District Court findings suggest
that there was some facility in Poland, I do not read the
District Court findings to acknowledge that Abu Zubaydah
was in fact tortured, and the definition of torture was highly
disputed in our country and not ultimately decided by the
U.S. Supreme Court in the context of this case. For purposes
of my dissenting analysis, it is sufficient if at step three of
the Reynolds’ test it appears that walking close to the line of
actual state secrets may result in someone overstepping that
line to the detriment of the United States. I would not need
to go further than that to accept the position of the CIA in its
intervenor role in this case that the discovery should not
proceed.
The majority remands this case so that Petitioners can
pursue details about Abu Zubaydah’s treatment that it
believes are no longer secret, tasking the district court with
disentangling that information from closely related topics
that are indisputably subject to the state secrets privilege.
The majority opinion characterizes this remaining
information as information that Petitioners could provide as
part of a “context to Polish prosecutors” under § 1782.
However, our circuit has recognized that even otherwise
innocuous information that provides a more coherent and
complete narrative should not be produced where it may risk
exposing a broader picture. See Kasza v. Browner, 133 F.3d
1159, 1166 (9th Cir. 1998) (holding that “if seemingly
innocuous information is part of a classified mosaic, the state
secrets privilege may be invoked to bar its disclosure and the
32 HUSAYN V. UNITED STATES
court cannot order the government to disentangle this
information from other classified information”). This is the
risk presented by the residual information that Petitioners
will seek on remand. In combination with the circumstances
of the proceeding and facts already made public, an attempt
to disentangle the details of Abu Zubaydah’s treatment in
Poland could expose a broader mosaic of clandestine
“intelligence activities, sources, or methods.” Mohamed,
614 F.3d at 1086.
The majority recognizes that Petitioners’ discovery
requests could potentially pose a “risk of disclosing state
secrets” such as details about the CIA’s involvement with
locations, individuals, and governments overseas because
this kind of information may be closely tied to nonprivileged
information. Id. at 1083. The majority responds to this
concern by advising that “depositions could proceed in this
case, with the use of code names and pseudonyms” in order
to protect privileged details of CIA operations. Code names
and pseudonyms had been used in a prior lawsuit to enable
Mitchell and Jessen to be deposed without revealing
sensitive information about a CIA black site.
But the district court judge in this case, who also heard
that prior lawsuit, understood exactly why those tools would
be ineffective in this circumstance. Because the entire
premise of the proceeding and the basis for our jurisdiction
concerns Polish prosecutorial efforts, the district court was
correct to reason that “[a]llowing the matter to proceed with
a code word, such as ‘detention site blue’ to replace Poland
seems disingenuous.” As the government argued,
“regardless of what pseudonyms or fictitious words
[Petitioners] would propose to use as a substitute, there’s no
escaping the fact that everything [they are] asking would
relate to allegations about things that occurred in Poland,
HUSAYN V. UNITED STATES 33
people that were there, [and] activities that allegedly
occurred there.” Like the approach of the district court in
Al-Haramain, the majority’s instruction to use code names
opens the door to secret information being “revealed through
reconstruct[ion]” even if it is not directly produced. Al-
Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1204
(9th Cir. 2007). The Al-Haramain court rejected this sort of
approach as the “worst of both world[s].” Id. Petitioners
have not demonstrated that the use of code words could
meaningfully restrict the information ultimately made public
through these discovery requests, and the majority should
not, therefore, suggest that national security would be
protected by their use.
In brief, although the majority is right to emphasize our
“special burden to assure . . . that an appropriate balance is
struck between protecting national security matters and
preserving an open court system,” the majority does not
recognize some of the ways in which this particular case
presents unique challenges for step three of the Reynolds
analysis. Mohamed, 614 F.3d at 1081. Because of the
circumstances presented by a § 1782 proceeding, the
information Petitioners seek is inextricably linked with
particular intelligence missions and particular foreign
intelligence contacts. Details about “the use of interrogation
techniques and conditions of confinement in that detention
facility . . . [and] Abu Zubaydah’s treatment there” will
inevitably be placed in the context of a Polish prosecution
seeking to discover aspects of the CIA’s presence in Poland
and any foreign nationals working with the CIA there, topics
the majority recognizes to be privileged. Without a more
specific and plausible plan for obtaining that nonprivileged
information and not risking the exposure of a broader picture
of national security material, I would defer to then-Director
Pompeo’s assessment of the risks presented in allowing the
34 HUSAYN V. UNITED STATES
discovery proceeding to go forward. For that reason, I must
respectfully dissent from the majority’s application of step
three of the United States v. Reynolds test. These concerns
apply to any case in which the Reynolds test is applied and
step three of that test must be addressed.
II
Also, there are aspects of this case peculiar to the context
of § 1782 and consideration of the Reynolds test when the
sought information will be produced for a foreign country
under § 1782. I find it very troubling that the majority’s
analysis of the extent of the Reynolds privilege in section
III.B of the opinion does not acknowledge and evaluate the
consequences of the fact that the information sought in a
discovery proceeding here under § 1782 is ultimately
destined for a foreign tribunal in Poland. Determining the
extent of the state secrets privilege is a task that always aims
at assuring “that an appropriate balance is struck between
protecting national security matters and preserving an open
court system.” Mohamed v. Jeppesen Dataplan, Inc.,
614 F.3d 1070, 1081 (9th Cir. 2010) (en banc) (citing Al-
Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203
(9th Cir. 2007)). Reynolds itself contemplated balancing the
legitimate rights of survivors to sue about the deaths of their
loved ones against concerns of potential harm from
disclosing military secrets. See United States v. Reynolds,
345 U.S. 1, 9 (1953) (holding that the state secrets privilege
is guided by a “formula of compromise”). But how is that
balance to be struck here where the information is sought for
potential prosecutions in Poland of Polish citizens who may
have worked in Poland with the Respondents?
I would hold that the Reynolds balance should recognize
that information produced in domestic proceedings remains
under the supervision of the United States court system in a
HUSAYN V. UNITED STATES 35
way that information produced in discovery for overseas
tribunals does not. Reynolds makes clear that it is our
domestic national security concerns that create a privilege
against disclosure of information that may harm our country.
Id. at 10. This country’s judicial system stands to gain little
from providing information to Polish prosecutors, while it is
this country’s national security that is being risked.
Although it is true that § 1782 authorizes discovery for the
benefit of foreign proceedings, it is also true that the
Reynolds privilege requires a balancing test that can take into
account that the sought discovery will be shipped overseas
for the benefit of another country’s judicial system, and at
that point, totally out of control of a domestic court.
III
For the reasons set forth above, I respectfully dissent.