United States v. Zubaydah ( 2022 )

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(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. HUSAYN, AKA ZUBAYDAH, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 20–827. Argued October 6, 2021—Decided March 3, 2022
In the aftermath of the September 11, 2001, terrorist attacks, the Cen-
tral Intelligence Agency believed that Abu Zubaydah was a senior al
Qaeda lieutenant likely to possess knowledge of future attacks against
the United States. Zubaydah—currently a detainee at the Guantá-
namo Bay Naval Base—says that in 2002 and 2003 he was held at a
CIA detention site in Poland, where he was subjected to “enhanced in-
terrogation” techniques. In 2010, Zubaydah filed a criminal complaint
in Poland, seeking to hold accountable any Polish nationals involved
in his alleged mistreatment at the CIA site ostensibly located in that
country. The United States denied multiple requests by Polish prose-
cutors for information related to Zubaydah’s claim on the ground that
providing such information would threaten national security.
Zubaydah filed a discovery application pursuant to 28 U. S. C. §1782,
which permits district courts to order production of testimony or docu-
ments “for use in a proceeding in a foreign . . . tribunal.” Zubaydah
asked for permission to serve two former CIA contractors with subpoe-
nas requesting information regarding the alleged CIA detention facil-
ity in Poland and Zubaydah’s treatment there. The Government inter-
vened and asserted the state secrets privilege in opposition to
Zubaydah’s discovery request.
The District Court rejected the Government’s claim that merely con-
firming that a detention site was operated in Poland would threaten
national security. The District Court nevertheless dismissed
Zubaydah’s discovery application. It concluded that the state secrets
privilege applied to operational details concerning the CIA’s coopera-
tion with a foreign government, and that meaningful discovery could
not proceed without disclosing privileged information. On appeal, the
2 UNITED STATES v. ZUBAYDAH
Syllabus
Ninth Circuit agreed with the District Court that much of the infor-
mation sought by Zubaydah was protected from disclosure by the state
secrets privilege, but the panel majority concluded that the District
Court had erred when it dismissed the case. It believed that the state
secrets privilege did not apply to publicly known information. The
panel majority also concluded that because the CIA contractors were
private parties and not Government agents, they could not confirm or
deny anything on the Government’s behalf. Given these holdings, the
panel majority determined that discovery into three topics could con-
tinue: the existence of a CIA detention facility in Poland, the conditions
of confinement and interrogation at that facility, and Zubaydah’s treat-
ment at that location.
Held: The judgment is reversed, and the case is remanded.
938 F. 3d 1123, reversed and remanded.
JUSTICE BREYER delivered the opinion of the Court with respect to
all but Parts II–B–2 and III, concluding that, in the context of
Zubaydah’s §1782 discovery application, the Court of Appeals erred in
holding that the state secrets privilege did not apply to information
that could confirm or deny the existence of a CIA detention site in Po-
land. Pp. 7–13, 14–15, 18.
(a) The state secrets privilege permits the Government to prevent
disclosure of information when that disclosure would harm national
security interests. United States v. Reynolds, 345 U. S. 1, 10–11. To
assert the privilege, the Government must submit to the court a “for-
mal claim of privilege, lodged by the head of the department which has
control over the matter.” Id., at 7–8. “The court itself must determine
whether the circumstances are appropriate for the claim of privilege.”
Id., at 8. However, in making that determination, a court should ex-
ercise its traditional “reluctan[ce] to intrude upon the authority of the
Executive in military and national security affairs,” Department of
Navy v. Egan, 484 U. S. 518, 530. If the Government has offered a
valid reason for invoking the privilege, “the showing of necessity” by
the party seeking disclosure of the ostensibly privileged information
will “determine how far the court should probe in satisfying itself that
the occasion for invoking the privilege is appropriate.” Reynolds, 345
U. S., at 11. The narrow evidentiary dispute before the Court asks how
these principles apply to Zubaydah’s specific discovery requests.
Pp. 7–9.
(b) In certain circumstances, the Government may assert the state
secrets privilege to bar the confirmation or denial of information that
has entered the public domain through unofficial sources. Here, the
information held by the Ninth Circuit to be nonprivileged would nec-
essarily tend to confirm (or deny) that the CIA maintained a detention
site in Poland. The Government has shown that such information—
Cite as: 595 U. S. ____ (2022) 3
Syllabus
even if already made public through unofficial sources—could signifi-
cantly harm national security. The CIA Director stated in his declara-
tion that “clandestine” relationships with foreign intelligence services
are “critical” and “based on mutual trust that the classified existence
and nature of the relationship will not be disclosed.” App. to Pet. for
Cert. 135a–136a. Given the nature of Zubaydah’s specific discovery
requests there is a reasonable danger that in this case a former CIA
insider’s confirmation of confidential cooperation between the CIA and
a foreign intelligence service could badly damage the CIA’s clandestine
relationships with foreign authorities. Pp. 9–13.
(c) The CIA contractors’ confirmation (or denial) of the information
Zubaydah seeks would be tantamount to disclosure by the CIA itself.
The contractors worked directly for the CIA and had a central role in
the events in question. The CIA Director describes the harm that
would result from the contractors responding to the subpoenas, not the
risks of a response from the CIA (or any other CIA official or employee).
Pp. 14–15.
(d) Zubaydah’s need for location information is not great, perhaps
close to nonexistent. At oral argument, he suggested that he did not
seek confirmation of the detention site’s Polish location so much as he
sought information about what had happened there. P. 15.
(e) Here, the state secrets privilege applies to the existence (or non-
existence) of a CIA facility in Poland, and therefore precludes further
discovery into all three categories of information the Ninth Circuit con-
cluded to be nonprivileged. P. 15.
(f) This case is remanded with instructions to dismiss Zubaydah’s
current application for discovery under §1782. P. 18.
BREYER, J., delivered the opinion of the Court, except as to Parts II–
B–2 and III. ROBERTS, C. J., joined that opinion in full, KAVANAUGH and
BARRETT, JJ., joined as to all but Part II–B–2, KAGAN, J., joined as to all
but Parts III and IV and the judgment of dismissal, and THOMAS and
ALITO, JJ., joined Part IV. THOMAS, J., filed an opinion concurring in
part and concurring in the judgment, in which ALITO, J., joined. KA-
VANAUGH, J., filed an opinion concurring in part, in which BARRETT, J.,
joined. KAGAN, J., filed an opinion concurring in part and dissenting in
part. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J.,
joined.
Cite as: 595 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–827
_________________
UNITED STATES, PETITIONER v. ZAYN AL-ABIDIN
MUHAMMAD HUSAYN, AKA ABU ZUBAYDAH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 3, 2022]
JUSTICE BREYER delivered the opinion of the Court, ex-
cept as to Parts II–B–2 and III.*
Abu Zubaydah, a detainee in the Guantánamo Bay Naval
Base, and his attorney filed an ex parte 28 U. S. C. §1782motion 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 produc-
tion 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 ac-
cepted the Government’s claim of privilege. Husayn v.
——————
*JUSTICE KAGAN joins all but Parts III and IV of this opinion and the
judgment of dismissal.
2 UNITED STATES v. ZUBAYDAH
Opinion of the Court
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 be-
ing 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 con-
tractors to confirm the location of the detention site and
that confirmation would itself significantly harm national
security interests. In our view, the Government has pro-
vided sufficient support for its claim of harm to warrant ap-
plication of the privilege. We reverse the Ninth Circuit’s
contrary holding.
I
A
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 lieu-
tenant 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.
Zubaydah remained at this location for several months.
SSCI Report 22, 67. During that time he was subjected to
what the Government then called “enhanced interrogation”
techniques, including waterboarding, stress positions,
cramped confinement, and sleep deprivation. Id., at 40–41.
The Government has since concluded that this treatment
constituted torture. See Press Conference by the President,
Cite as: 595 U. S. ____ (2022) 3
Opinion of the Court
Office of the Press Secretary, Aug. 1, 2014, https://
obamawhitehouse.archives.gov/the-press-office/2014/08/01/
press-conference-president.
In December 2002, the CIA transferred Zubaydah to a
different detention site—the site at issue here. SSCI Re-
port 67. The CIA has never confirmed its location, but
Zubaydah and many others believe it was in Poland.
In September 2006, the Government transferred
Zubaydah to its detention facility at the Guantánamo Bay
Naval Base. 3 Record 583. He has been detained in Guan-
tánamo Bay ever since. 938 F. 3d, at 1125.
Some of this information and related details have ap-
peared in various publicly-available documents, including:
• The almost-500 page Executive Summary of a Senate
Select Committee on Intelligence Report concerning
the CIA’s use of “enhanced interrogation” techniques.
See generally SSCI Report.
• The European Court of Human Rights’ findings con-
cerning Zubaydah’s treatment, which that court con-
cluded had taken place in Poland. 3 Record 382–607.
• Testimony given by James Mitchell and John Jessen,
the former CIA contractors who are the targets of
Zubaydah’s subpoenas and who designed and imple-
mented the CIA’s post-September 11 enhanced-
interrogation program. Id., at 106–149; Tr. in United
States v. Khalid Shaikh Mohammad, et al. (Jan. 21–31,
2020).
• Mitchell’s memoir of his involvement with the CIA’s en-
hanced-interrogation program. See generally J. Mitch-
ell & B. Harlow, Enhanced Interrogation: Inside the
Minds and Motives of the Islamic Terrorists Trying to
Destroy America (2016).
Some of these and other publicly available sources say
that, in 2002 and 2003, Zubaydah was detained at a CIA
4 UNITED STATES v. ZUBAYDAH
Opinion of the Court
facility in Poland. But, the Government states, the CIA it-
self has never confirmed that one or more of its clandestine
detention sites was located in any specific foreign country.
App. to Pet. for Cert. 134a. Neither, as far as we can tell
from the record, have the contractors Mitchell and Jessen
named the specific foreign countries in which CIA detention
sites were located. Rather, they (like the SSCI Report) have
used code names to refer to the locations where Zubaydah
was held. See, e.g., SSCI Report 62; Tr. in United States v.
Khalid Shaikh Mohammad, et al. (Jan. 21, 2020), at 30190.
Finally, although at least one former Polish government of-
ficial has stated that Poland cooperated with the CIA, to our
knowledge, the Polish government itself has never con-
firmed such allegations. 3 Record 472.
B
1
In 2010, lawyers representing Zubaydah filed a criminal
complaint in Poland asking prosecutors there to hold ac-
countable any Polish nationals who were involved in his al-
leged mistreatment in that country. 938 F. 3d, at 1127. In-
voking a Mutual Legal Assistance Treaty, the Polish
prosecutors asked American authorities for information.
3 Record 441. The United States Department of Justice re-
fused their request on the ground that providing the infor-
mation would adversely affect our national security. Id.,
at 444; see also App. to Brief for Petitioner 4a. The Polish
investigation closed without prosecutions. 938 F. 3d, at
1127.
In 2015, the European Court of Human Rights considered
the matter. It concluded that the CIA had held and tor-
tured Zubaydah at a site located in Poland. 3 Record 558.
It also stated that Poland had failed adequately to investi-
gate the human rights violations that the court believed
had occurred on Polish soil. Id., at 581.
Cite as: 595 U. S. ____ (2022) 5
Opinion of the Court
In response, the Polish prosecutors reopened their inves-
tigation. 938 F. 3d, at 1128. They again requested infor-
mation from the United States under the Mutual Legal As-
sistance Treaty, and the United States again denied their
requests. Ibid.; see also 3 Record 632–633. At that point,
the Polish prosecutors invited Zubaydah’s lawyers to sub-
mit evidence that would aid their investigation.
2
Soon afterward, Zubaydah (and his lawyer) filed the ex
parte 28 U. S. C. §1782 discovery application now before us.
938 F. 3d, at 1128. Section 1782 says that a district court
may order a person in its district to provide testimony or
documents “for use in a proceeding in a foreign . . . tribunal,
including criminal investigations conducted before formal
accusation.” Zubaydah asked for permission to serve the
contractors, Mitchell and Jessen, with subpoenas com-
manding them to appear for depositions and to produce
“documents, memoranda and correspondence” regarding an
alleged CIA detention facility in Poland and Zubaydah’s
treatment there. The Appendix, infra, at 19–20, lists
Zubaydah’s document requests. Twelve of Zubaydah’s thir-
teen document requests referred to Poland, and 10 specifi-
cally requested documents “concerning” an alleged CIA de-
tention facility located in Stare Kiejkuty, Poland. Ibid. The
District Court granted Zubaydah’s request. App. to Pet. for
Cert. 70a.
The Government intervened. 938 F. 3d, at 1129. Sec-
tion 1782(a) provides that a “person may not be compelled
to give his testimony or statement or to produce a document
or other thing in violation of any legally applicable privi-
lege.” The Government claimed that disclosure of the infor-
mation Zubaydah sought would violate the state secrets
privilege. 938 F. 3d, at 1129. It asked the court to quash
the subpoenas. Ibid.
To support its privilege claim, the Government submitted
6 UNITED STATES v. ZUBAYDAH
Opinion of the Court
a declaration from the Director of the CIA. App. to Pet. for
Cert. 123a–137a. The Director said that Mitchell and
Jessen’s response to Zubaydah’s subpoenas would, in this
case, confirm or deny whether Poland had cooperated with
the CIA. Id., at 129a–130a. And that confirmation, the Di-
rector explained, would significantly harm our national se-
curity interests. Id., at 131a.
The District Court granted the Government’s motion to
quash the subpoenas. Id., at 60a. It did not accept the Gov-
ernment’s claim “that merely confirming [that] a detention
site was operated in Poland would pose a grave risk to na-
tional security.” Id., at 59a. But it nonetheless thought the
state secrets privilege applied. It concluded that the state
secrets privilege allowed the Government to suppress “op-
erational details concerning the specifics of cooperation
with a foreign government, including the roles and identi-
ties of foreign individuals.” Id., at 55a–56a (emphasis
added). And it believed that it was not possible to conduct
“[m]eaningful discovery . . . in this matter” without disclos-
ing these (or other) protected types of information. Id., at
57a. The court rejected Zubaydah’s suggestion that it
would be possible to conduct further discovery through the
use of code names that would conceal the locations of CIA
detention facilities. Id., at 55a–57a. The court conse-
quently dismissed Zubaydah’s §1782 application. Id., at
60a.
Zubaydah appealed. A divided panel of the Court of Ap-
peals for the Ninth Circuit affirmed in part and reversed in
part. The panel listed the following examples of privileged
information sought by Zubaydah: “documents, memoranda,
and correspondence about the identities and roles of foreign
individuals involved with the detention facility, operational
details about the facility, and any contracts made with
Polish government officials or private persons residing in
Poland [that] might implicate the CIA’s intelligence gath-
ering efforts.” 938 F. 3d, at 1134; see also Appendix, infra,
Cite as: 595 U. S. ____ (2022) 7
Opinion of the Court
at 19–20. But the panel majority held that the District
Court nonetheless should not have dismissed the case.
That was because, in its view, the state secrets privilege did
not apply to information that was already publicly known.
938 F. 3d, at 1133. It added that because Mitchell and
Jessen are “private parties,” their disclosures would not
tend to show that the Government itself had “confirm[ed]
or den[ied] anything.” Ibid.
More specifically, the panel majority wrote that three cat-
egories of information were not covered by the state secrets
privilege: “the fact that the CIA operated a detention facil-
ity 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.” Id., at 1134 (emphasis added). The panel
then remanded the case to the District Court for further
proceedings. Id., at 1135, 1137–1138.
The Court of Appeals denied, over a twelve-judge dissent,
the Government’s request for rehearing en banc. 965 F. 3d
775 (2020). We granted the Government’s petition for cer-
tiorari to determine whether the Court of Appeals erred.
We believe that it did.
II
A
The state secrets privilege permits the Government to
prevent disclosure of information when that disclosure
would harm national security interests. See Reynolds, 345
U. S., at 10–11 (disclosure of Air Force accident investiga-
tion report could disclose “military secrets”); In re Sealed
Case, 494 F. 3d 139, 144 (CADC 2007) (disclosure of inspec-
tor general reports would “create the risk of revealing cov-
ert operatives, organizational structure and functions, and
intelligence-gathering sources, methods, and capabilities”);
see also Molerio v. FBI, 749 F. 2d 815, 819, 822 (CADC
1984) (Scalia, J.) (disclosure of FBI’s rationale for not hiring
8 UNITED STATES v. ZUBAYDAH
Opinion of the Court
plaintiff “would impair the national security”).
To assert the privilege, the Government must submit to
the court a “formal claim of privilege, lodged by the head of
the department which has control over the matter, after ac-
tual personal consideration by that officer.” Reynolds, 345
U. S., at 7–8. “The court itself must determine whether the
circumstances are appropriate for the claim of privilege.”
Id., at 8. “Judicial control over the evidence in a case can-
not be abdicated to the caprice of executive officers.” Id., at
9–10. Nonetheless, in assessing the Government’s claim
that disclosure may harm national security, courts must ex-
ercise the traditional “reluctan[ce] to intrude upon the au-
thority of the Executive in military and national security
affairs.” Department of Navy v. Egan, 484 U. S. 518, 530
(1988).
Although the court itself must assess the sufficiency of
the Government’s privilege claim, “the showing of necessity
which is made,” by the party seeking disclosure of the os-
tensibly privileged information, “will determine how far the
court should probe in satisfying itself that the occasion for
invoking the privilege is appropriate.” Reynolds, 345 U. S.,
at 11. “Where there is a strong showing of necessity, the
claim of privilege should not be lightly accepted.” Ibid. In
contrast, “where necessity is dubious, a formal claim of priv-
ilege,” demonstrating “a reasonable possibility” of harm to
national security, “will have to prevail.” Ibid. And in all
events, “even the most compelling necessity cannot over-
come the claim of privilege if the court is ultimately satis-
fied that military secrets are at stake.” Ibid.JUSTICE GORSUCH agrees that the Government must
show a reasonable danger of harm to national security, that
a court must decide for itself whether the occasion is appro-
priate for claiming the privilege, and that in camera review
is not always required to make that determination. Post, at
17–19 (dissenting opinion). We diverge from the dissent on
how those principles should apply to the specific discovery
Cite as: 595 U. S. ____ (2022) 9
Opinion of the Court
requests Zubaydah has made in this litigation. Of course,
our answer to that question is not a judgment of Zubaydah’s
alleged terrorist activities, nor of his treatment at the
hands of the United States Government. Obviously the
Court condones neither terrorism nor torture, but in this
case we are required to decide only a narrow evidentiary
dispute.
B
An important factor in our analysis of that narrow issue
is the specific language of Zubaydah’s discovery requests
and the Ninth Circuit’s opinion, which both make it clear
that any response Mitchell and Jessen give to Zubaydah’s
subpoenas would tend to confirm (or deny) the existence of
a CIA detention site in Poland. As we have said, 12 of
Zubaydah’s 13 document requests contain the word “Po-
land” or “Polish.” Appendix, infra, at 19–20. (The exception
is a broad request for any and all documents concerning
Zubaydah himself. Ibid.) Ten of the requests specifically
seek “documents, correspondence, or memoranda . . . con-
cerning” the alleged CIA detention site in Stare Kiejkuty,
Poland. Ibid. If Mitchell and Jessen acknowledge the ex-
istence of documents responsive to these requests, they will
effectively acknowledge the existence of the detention facil-
ity referenced therein. Conversely, denying the existence
of responsive documents would deny the existence of such a
facility. In any event, any response to the lion’s share of
Zubaydah’s document requests will either confirm or deny
that the CIA operated a detention site in Poland.
The problem is confirmed by the Ninth Circuit’s opinion,
which allowed continued discovery into three topics: the ex-
istence of a CIA detention facility in Poland, the conditions
of confinement and interrogation at that facility, and
Zubaydah’s treatment at that location. 938 F. 3d, at 1134.
The first category, of course, requires Mitchell and Jessen
10 UNITED STATES v. ZUBAYDAH
Opinion of the Court
to directly confirm or deny the existence of a Polish deten-
tion site. The latter two categories require, at the very
least, confirmation or denial, since acknowledging that any
confinement, interrogation, or treatment occurred at a CIA
detention facility located in Poland would confirm that such
a facility exists or existed.
Because any response to Zubaydah’s subpoenas allowed
by the Ninth Circuit’s decision will have the effect of confir-
mation or denial (by the Government or its former contrac-
tors) of the existence of a CIA facility in Poland, the primary
question for us must be whether the existence (or non-ex-
istence) of a CIA detention facility in Poland falls within the
scope of the state secrets privilege. For the reasons that
follow, we conclude that it does.
1
We agree with the Government that sometimes infor-
mation that has entered the public domain may nonetheless
fall within the scope of the state secrets privilege. But see
938 F. 3d, at 1133 (“[I]n order to be a ‘state secret,’ a fact
must first be a ‘secret’ ”). The Government here has pro-
vided a reasonable explanation of why Mitchell and
Jessen’s confirmation or denial of the information
Zubaydah seeks could significantly harm national security
interests, even if that information has already been made
public through unofficial sources.
The CIA Director stated in his declaration that the
Agency’s counterterrorism efforts rely on “clandestine” re-
lationships with foreign intelligence services. App. to Pet.
for Cert. 130a–131a. The Director explained that foreign
intelligence services “are a critical intelligence source,”
whose help is “vital to our world-wide efforts to collect in-
telligence and thwart terrorist attacks.” Ibid.
He further explained that these “sensitive” relationships
with other nations are “based on mutual trust that the clas-
sified existence and nature of the relationship will not be
Cite as: 595 U. S. ____ (2022) 11
Opinion of the Court
disclosed.” Id., at 135a–136a. To confirm the existence of
such a relationship would “breach” that trust and have “se-
rious negative consequences,” including jeopardizing “rela-
tionships with other foreign intelligence or security ser-
vices.” Id., at 131a–132a. In light of these concerns, the
CIA “has steadfastly refused to confirm or deny the accu-
racy” of public speculation about its cooperation with Po-
land, leaving “an important element of doubt about the ve-
racity” of that speculation, providing “an additional layer of
confidentiality,” and at least confirming that the United
States will “stand firm in safeguarding any coordinated
clandestine activities,” despite the passage of time, the ex-
istence of media reports, and changes in public opinion. Id.,
at 133a–136a. In a word, to confirm publicly the existence
of a CIA site in Country A, can diminish the extent to which
the intelligence services of Countries A, B, C, D, etc., will
prove willing to cooperate with our own intelligence ser-
vices in the future.
JUSTICE GORSUCH believes that the Government has
failed to meet its “burden of showing that a ‘reasonable dan-
ger’ of harm to national security would follow from sharing
the information sought.” Post, at 21–22. In his view, the
Director’s declaration is insufficient to demonstrate “that
requiring the government to acknowledge [that the CIA did
or did not operate a detention facility in Poland in the early
2000s] would invite a reasonable danger of additional harm
to national security.” Post, at 22–23. We disagree. It
stands to reason that a former CIA insider’s confirmation of
confidential cooperation between the CIA and a foreign in-
telligence service could damage the CIA’s clandestine rela-
tionships with foreign authorities. Confirmation by such an
insider is different in kind from speculation in the press or
even by foreign courts because it leaves virtually no doubt
as to the veracity of the information that has been con-
firmed. And there is ample reason to think that the circum-
12 UNITED STATES v. ZUBAYDAH
Opinion of the Court
stances of this case—particularly the specific discovery re-
quests at issue here—could lead to this kind of confirma-
tion. In any event, the CIA’s refusal to confirm or deny its
cooperation with foreign intelligence services plays an im-
portant role in and of itself in maintaining the trust upon
which those relationships are based.
Nor, as JUSTICE GORSUCH believes, do we reach this con-
clusion by incorrectly placing the burden on Zubaydah to
disprove the Government’s assertion of harm. Post, at 23.
To the contrary, we agree with JUSTICE GORSUCH that the
Government bears the burden of showing that the privilege
should apply—we simply disagree with his conclusion that
it failed to meet that burden here. In our view, the Direc-
tor’s declaration adequately establishes “that there is a rea-
sonable danger that compulsion of the evidence [at issue]
will expose . . . matters which, in the interest of national
security, should not be divulged.” Reynolds, 345 U. S., at
10. And we have found nothing in the evidentiary record
that casts doubt on our conclusion that the Government has
met its burden here. Reynolds itself contemplated that a
similar basis for a claim of privilege could prevail without
further examination by the court of the ostensibly privi-
leged evidence. Id., at 9–11.
In contrast, JUSTICE THOMAS, referring to Reynolds, be-
lieves that we need not consider the Government’s justifi-
cations for invoking the privilege at all because Zubaydah
has not made a “ ‘strong showing of necessity’ ” for the re-
quested information. Post, at 1–2 (opinion concurring in
part and concurring in judgment). Reynolds, however,
taken as an example, indicates that the Government ini-
tially must formally invoke the privilege. 345 U. S., at 8.
Then the court itself must “determine whether the circum-
stances are appropriate for the claim of privilege.” Ibid.And only after satisfying itself that the Government has of-
fered a valid reason for invoking the privilege would a court
turn to the issue of necessity (a matter that would help the
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court determine how deeply to probe the details of, and ba-
sis for, the Government’s privilege claim). Id., at 10–11.
We follow Reynolds’ example here.
2
Additionally, the Government cites legal authority from
the separate but roughly analogous Freedom of Information
Act (FOIA) context, which supports our conclusion that the
CIA’s concerns warrant application of the state secrets priv-
ilege. Brief for Petitioner 32–34. The FOIA contains ex-
emptions that permit an agency to withhold Government
records that a member of the public has requested and
which the agency would otherwise have to disclose. 5
U. S. C. §552. But the exemptions do not apply (and the
agency must make the information available) if the infor-
mation has already become public, provided that it has been
“officially acknowledged” by the agency from which the in-
formation is sought. Fitzgibbon v. CIA, 911 F. 2d 755, 765
(CADC 1990) (emphasis added). The Court of Appeals held
that, under the circumstances present in Fitzgibbon, if
there has been “official acknowledgment” then the agency
must disclose the information despite the exemption. Ibid.If the agency has not officially acknowledged the infor-
mation, however, then it may withhold the information (un-
der an applicable exemption) despite the fact that the infor-
mation has become public. Ibid.To be clear, the FOIA doctrine is only an (imperfect) anal-
ogy, and nothing in this opinion should be taken to suggest
that the waiver standards in that area apply directly to the
state secrets privilege. However, the principles underlying
the FOIA rule provide at least some support for the Govern-
ment’s position here. Lower courts have explained that the
official acknowledgement doctrine recognizes the reality
that official confirmation of sensitive information may pose
risks that unofficial disclosure does not. “It is one thing for
a reporter or author to speculate or guess that a thing may
14 UNITED STATES v. ZUBAYDAH
Opinion of the Court
be so or even, quoting undisclosed sources, to say that it is
so; it is quite another thing for one in a position to know of
it officially to say that it is so.” Alfred A. Knopf, Inc. v.
Colby, 509 F. 2d 1362, 1370 (CA4 1975). Official confirma-
tion may dispel “lingering doubts” or reveal that the infor-
mation currently in the public domain is incomplete or itself
a cover story. Military Audit Project v. Casey, 656 F. 2d 724,
744–745 (CADC 1981).
This logic helps to explain why disclosure by Mitchell and
Jessen could be harmful in ways that disclosure by other
sources would not. Here, the Government has not con-
firmed or otherwise officially acknowledged the existence of
a CIA detention site in Poland and it has explained why,
under these circumstances, confirmation of that infor-
mation could reasonably be expected to significantly harm
national security interests. That is sufficient to demon-
strate that “the occasion for the privilege is appropriate.”
Reynolds, 345 U. S., at 10. (The Polish government has also
never confirmed whether it cooperated with the CIA, so we
need not decide in this case what significance, if any, that
disclosure would have.)
3
The Court of Appeals also believed that, because Mitchell
and Jessen are “private parties,” their “disclosures [were]
not equivalent to the United States confirming or denying
anything.” 938 F. 3d, at 1133. We do not agree with this
conclusion. Mitchell and Jessen worked directly for the CIA
as contractors. Zubaydah contends (without contradiction)
that Mitchell and Jessen “devised and implemented” the
CIA’s enhanced-interrogation program and that they per-
sonally interrogated Zubaydah. Brief for Respondents 1–2.
Given Mitchell and Jessen’s central role in the relevant
events, we believe that their confirmation (or denial) of the
information Zubaydah seeks would be tantamount to a dis-
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closure from the CIA itself. Indeed, the CIA Director’s Dec-
laration describes the harm that would result from Mitchell
and Jessen responding to the subpoenas, not the risks of a
response from the CIA (or any other CIA official or em-
ployee).
4
At the same time, Zubaydah’s need is not great. At oral
argument Zubaydah suggested that he did not seek confir-
mation of the detention site’s Polish location so much as he
sought information about what had happened there. Tr. of
Oral Arg. 44 (“We know where Abu Zubaydah was. We
want to establish how he was treated there”).
5
For these reasons, we conclude that in this case the state
secrets privilege applies to the existence (or nonexistence)
of a CIA facility in Poland. It therefore precludes further
discovery into all three categories of information the Ninth
Circuit concluded to be nonprivileged because, as we have
explained, such discovery will inevitably confirm or deny
the existence of such a facility. See supra, at 8–10.
III
While JUSTICE KAGAN and JUSTICE GORSUCH would send
the case back for additional proceedings, we believe that it
must be dismissed. Although application of the state se-
crets privilege does not always require dismissal, we are
unpersuaded that the litigation at issue here, founded upon
the specific document requests set forth in the Appendix,
infra, at 19–20, can survive the Government’s successful
privilege claim.
JUSTICE GORSUCH first suggests that we should remand
for the District Court to conduct “in camera review of any
evidence the government might wish to present to substan-
tiate its privilege claim.” Post, at 24. It is true that some-
times a court must personally review the evidence at issue
16 UNITED STATES v. ZUBAYDAH
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in order to assess the Government’s assertion of the state
secrets privilege. See Reynolds, 345 U. S., at 10. However,
additional judicial probing is inappropriate here for two
reasons taken together. First, for the reasons explained
above, the CIA Director’s affidavit, together with the lack
of contrary evidence, is sufficient to “satisfy [us] . . . that
there is a reasonable danger that compulsion of the [privi-
leged] evidence will expose . . . matters which, in the inter-
est of national security, should not be divulged.” Ibid. Sec-
ond, the necessity of additional judicial probing depends, as
we have explained, on Zubaydah’s need for the information
he seeks. We have explained that much of that information
is already publicly available from other sources. Supra,
at 3. The public availability of information concerning
Zubaydah’s treatment diminishes his need for the discovery
he seeks from Mitchell and Jessen, and thus for further ju-
dicial probing of the Government’s privilege claim. See
Reynolds, 345 U. S., at 11 (“necessity [is] greatly minimized
by an available alternative”). Zubaydah’s need for infor-
mation about his treatment may be further diminished by
the Government’s representation that (subject to a security
review) it will allow Zubaydah “to send a declaration that
could be transmitted to Polish prosecutors.” Letter from
B. Fletcher, Acting Solicitor General, to S. Harris, Clerk of
Court 3 (Oct. 15, 2021). And, as we just said, Zubaydah’s
counsel stated at oral argument: “We know where Abu
Zubaydah was. We want to establish how he was treated
there.” Tr. of Oral Arg. 44.
Alternatively, both JUSTICE KAGAN and JUSTICE
GORSUCH suggest that even if “the existence [or nonexist-
ence] of a detention site in Poland really does qualify as a
state secret,” we should nonetheless remand so that discov-
ery may continue on a different topic: Zubaydah’s treatment
from “December 2002 through September 2003 and without
reference to geography.” Post, at 24 (GORSUCH, J., dissent-
ing); see also post, at 2–5 (KAGAN, J., concurring in part and
Cite as: 595 U. S. ____ (2022) 17
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dissenting in part). In their view, “familiar judicial tools,”
such as protective orders and code names, would be ade-
quate to protect against the possibility of an “inadvertent
disclosur[e]” of privileged information. Post, at 25 (opinion
of GORSUCH, J.); see also post, at 3–4 (opinion of KAGAN, J.).
Unfortunately, this suggestion ignores the nature of the
specific discovery requests at issue here. It may well be
that such techniques have successfully prevented the dis-
closure of classified information in previous litigation on re-
lated subject matter. See post, at 25–26 (opinion of
GORSUCH, J.) (describing protective measures used to pre-
vent disclosure of classified information in United States
v. Khalid Shaikh Mohammad and Salim v. Mitchell,
No. 2:15–cv–286 (ED Wash.)). But the nature of this case
(an exclusively discovery-related proceeding aimed at pro-
ducing evidence for use by Polish criminal investigators)
and the specific discovery requests before us convince us
that these techniques would not be effective here. In par-
ticular, as we have already explained, both the subpoena’s
language and the Ninth Circuit’s decision are such that any
response to Zubaydah’s discovery requests would inevitably
tend to confirm or deny whether the CIA operated a deten-
tion site located in Poland. Supra, at 8. All this is true
regardless of protective measures that might be employed
by the courts below. Of course, we need not and do not here
decide whether a different discovery request filed by
Zubaydah might avoid the problems that preclude further
litigation regarding the requests at issue here.
Finally, JUSTICE GORSUCH ignores the nature of this liti-
gation. This case arises from Zubaydah’s ex parte applica-
tion for discovery under §1782. It is a purely evidentiary
proceeding and thus unlike most litigation, which may, af-
ter a successful assertion of the state secrets privilege, “con-
tinue without the government’s privileged proof.” Post, at
24. Here, the privilege blocks Zubaydah’s discovery re-
quests, which are the proceeding’s sole object. Given that
18 UNITED STATES v. ZUBAYDAH
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fact, we can see no reason to remand for further proceed-
ings.
IV
We reverse the judgment of the Ninth Circuit and re-
mand the case with instructions to dismiss Zubaydah’s cur-
rent application for discovery under §1782.
It is so ordered.
Cite as: 595 U. S. ____ (2022) 19
Opinion of the Court
APPENDIX
20 UNITED STATES v. ZUBAYDAH
Opinion of the Court
Cite as: 595 U. S. ____ (2022) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–827
_________________
UNITED STATES, PETITIONER v. ZAYN AL-ABIDIN
MUHAMMAD HUSAYN, AKA ABU ZUBAYDAH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 3, 2022]
JUSTICE THOMAS, with whom JUSTICE ALITO joins, con-
curring in part and concurring in the judgment.
Under United States v. Reynolds, 345 U. S. 1 (1953), a
court evaluates the Government’s assertion of the state-
secrets privilege based on “the showing of necessity . . .
made” by the party requesting discovery. Id., at 11. If the
party makes only “a dubious showing of necessity,” the
claim of privilege “will have to prevail” without judicial
scrutiny into the Government’s basis for the claim. Ibid. If
the party makes “a strong showing of necessity,” however,
immediate dismissal of the discovery request is not re-
quired. Ibid. A court may then ask whether there is a “rea-
sonable danger” that “military secrets are at stake.” Id., at
10–11. In answering that question, the court must afford
“the utmost deference” to the Executive’s national-security
assessment. Department of Navy v. Egan, 484 U. S. 518,
530 (1988) (internal quotation marks omitted). “[I]f the
court is ultimately satisfied that military secrets are at
stake,” “even the most compelling necessity cannot over-
come the claim of privilege.” Reynolds, 345 U. S., at 11.
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 applica-
tion on that basis. Rather, the Court concludes that the
Government “has provided a reasonable explanation” why
2 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
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 re-
quires 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 opin-
ion.
I
Abu Zubaydah is a terrorist. Before his detention, he was
an al Qaeda-associated senior operative engaged in active
hostilities against the United States. See generally Factual
Return for Abu Zubaydah (ISN 10016), pp. 1–44, in Husayn
v. Austin, No. 08–cv–1360 (DDC), ECF Doc. 474–1, pp. 24–
67 (Factual Return). Between 1994 and 2000, Zubaydah
was the “key facilitator” for the “Khaldan camp,” a terrorist
training center in eastern Afghanistan. Id., at 14, ¶33; see
also Barhoumi v. Obama, 609 F. 3d 416, 425 (CADC 2010);
National Commission on Terrorist Attacks upon the United
States, The 9/11 Commission Report, pp. 59, 175 (2004)
(9/11 Report). Among other responsibilities, Zubaydah se-
cured forged passports and visas for terrorist trainees, pro-
vided safe harbor for the trainees at a “guesthouse,” and
managed the training camp’s expenses. Factual Return 14,
¶33; see also 9/11 Report 169, 178. Numerous Khaldan-
trained terrorists committed acts of terrorism against the
United States, including Khalid al-Mihdhar, the al Qaeda
hijacker who crashed American Airlines Flight 77 into the
Pentagon on September 11, 2001. Factual Return 18, ¶41a;
see also 9/11 Report 73 (noting evidence that suggested the
1993 World Trade Center bombing “plot or plots were
hatched at or near the Khaldan camp”).
After the September 11 attacks, Zubaydah “joined enemy
forces against the United States,” “facilitated the retreat
and escape of enemy forces out of Afghanistan,” and contin-
ued “plotting attacks against the United States.” Factual
Cite as: 595 U. S. ____ (2022) 3
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Return 11, ¶28. From sites in Afghanistan and Pakistan,
Zubaydah commanded a terrorist militia closely associated
with al Qaeda and Osama bin Laden. See id., at 25–32,
¶¶49–62; Ali v. Obama, 736 F. 3d 542, 546–548 (CADC
2013) (Kavanaugh, J.). Zubaydah had his followers trained
in English, electronics, and explosives. See Factual Return
40–41, ¶¶67–68. He planned to wage war against the
United States by planting remotely operated bombs in var-
ious public locations. See id., at 43, ¶73. In his diary,
Zubaydah reflected that it would be “a lot better” to carry
out a nuclear attack if a nuclear weapon ever became “avail-
able.” Id., at 44, ¶73 (emphasis deleted). Zubaydah wanted
“[a] general war, non stop and without mercy.” Ibid.On March 28, 2002, U. S. and allied forces captured
Zubaydah at his safe house in Faisalabad, Pakistan. Id., at
32, ¶63; Ali, 736 F. 3d, at 543. Zubaydah “used the Faisal-
abad house to prepare for attacks on U. S. and Coalition
forces using remote-detonated explosives.” Id., at 546–547.
After his capture, the CIA transferred Zubaydah to several
detention sites abroad before detaining him at Guantánamo
Bay Naval Base, where he remains today. Between March
2002 and September 2006, CIA interrogation of Zubaydah
yielded 766 disseminated intelligence reports. S. Rep.
No. 113–288, p. 46 (2014). “Zubaydah provided information
on al-Qa’ida activities, plans, capabilities, and relation-
ships, in addition to information on its leadership structure,
including personalities, decision-making processes, train-
ing, and tactics.” Ibid. (internal quotation marks omitted).
In this case, Zubaydah seeks discovery under 28 U. S. C.
§1782 from two former CIA contractors, James Mitchell and
John Jessen. Zubaydah does not request this discovery for
his own use. Rather, Polish prosecutors asked Zubaydah to
file a discovery application after the United States repeat-
edly declined the prosecutors’ requests for information re-
garding CIA operations at an alleged detention site in Po-
land. See ante, at 4–5; Husayn v. Mitchell, 965 F. 3d 775,
4 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
782 (CA9 2020) (Bress, J., dissenting from denial of rehear-
ing en banc). Zubaydah claims to have been detained and
tortured at that site, and Polish authorities are investigat-
ing those allegations. The United States now moves to
quash Zubaydah’s §1782 application by invoking the state-
secrets privilege, citing national-security interests.
II
A
In Reynolds, this Court held that the Government may
invoke the state-secrets privilege whenever “there is a rea-
sonable danger that compulsion of the evidence will expose
military matters which, in the interest of national security,
should not be divulged.” 345 U. S., at 10. Upon the Gov-
ernment’s “formal claim of privilege,” “[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 pro-
tect.” Id., at 7–8 (footnote omitted).
Reynolds prescribed a two-step framework instructing
courts “how far [they] should probe in satisfying [them-
selves] that the occasion for invoking the privilege is appro-
priate.” Id., at 11. First, courts must assess the requesting
party’s need for the Government’s privileged material. If
the party’s need is “dubious,” a formal claim of privilege
“will have to prevail” without judicial inquiry into the basis
for the Government’s claim. Ibid. A party has a dubious
need unless it can show that the proposed discovery is “im-
mediately and essentially applicable” to the party’s case.
United States v. Burr, 25 F. Cas. 30, 37 (No. 14,692d) (CC
Va. 1807) (Marshall, C. J.). For example, a “dubious show-
ing of necessity” arises if a party has an “available alterna-
tive” to privileged material that might “giv[e him] the evi-
dence to make out [his] case without forcing a showdown on
the claim of privilege.” Reynolds, 345 U. S., at 11. Like-
wise, a party’s need is dubious if it is “possible . . . to adduce
Cite as: 595 U. S. ____ (2022) 5
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the essential facts . . . without resort to material touching
upon military secrets.” Ibid.Second, if a party has made a “strong showing of neces-
sity,” immediate dismissal of the discovery request is not
required. Ibid. The court may then ask whether there is a
“reasonable danger” that “military secrets are at stake.”
Id., at 10–11. When answering that question, in camera
review is not “automati[c],” id., at 10, but rather “a last re-
sort,” Larson v. Department of State, 565 F. 3d 857, 870
(CADC 2009) (internal quotation marks omitted). And, in
all cases, the court must afford the “utmost deference” to
the Executive’s assessment of national-security threats.
Egan, 484 U. S., at 530 (internal quotation marks omitted).1
Such deference is required because it is the responsibility
of the Executive, “not that of the judiciary, to weigh the va-
riety of complex and subtle factors in determining whether
disclosure of information may lead to an unacceptable risk
of compromising” the Nation’s safety. CIA v. Sims, 471
U. S. 159, 180 (1985). Ultimately, if the court is “satisfied
——————
1 JUSTICE BREYER suggests that case law under the Freedom of Infor-
mation Act (FOIA) might provide a “roughly analogous” framework for
courts to assess the Government’s claim of state-secrets privilege. Ante,
at 13 (plurality opinion). Yet, at the same time, JUSTICE BREYER admits
that the analogy is “imperfect,” and stresses that “nothing in [his] opin-
ion should be taken to suggest” that FOIA law is “directly” relevant. Ibid.No party has proposed a FOIA approach to state secrets, presumably be-
cause the statute has no apparent connection to the state-secrets privi-
lege. Like the parties, I do not think that FOIA is relevant in this con-
text. This Court has held that FOIA’s “basic purpose” is to “open agency
action to the light of public scrutiny,” regardless of the “particular pur-
pose for which the document is being requested.” Department of Justice
v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 772 (1989) (in-
ternal quotation marks omitted). That “basic purpose” is antithetical to
the state-secrets privilege, which exists to protect “military matters
[that] should not be divulged,” even when a party demonstrates “the most
compelling necessity.” Reynolds, 345 U. S., at 10, 11. Thus, FOIA favors
disclosure regardless of a party’s need, while the state-secrets privilege
mandates secrecy even if need is at its zenith.
6 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
that military secrets are at stake,” “even the most compel-
ling necessity cannot overcome the claim of privilege.”
Reynolds, 345 U. S., at 11; see also Trump v. Vance, 591
U. S. ___, ___ (2020) (THOMAS, J., dissenting) (slip op., at
10).
Reynolds itself involved only a “dubious” need for privi-
leged material. The plaintiffs were widows of three civil-
ians who died when a military flight “testing secret elec-
tronic equipment” crashed. 345 U. S., at 3. The plaintiffs
filed suit under the Federal Tort Claims Act, 28 U. S. C.
§1346 et seq., and the Government invoked the state-secrets
privilege to withhold the Air Force’s accident investigation
report and related materials. See 345 U. S., at 3–4. The
Court sustained the privilege because the plaintiffs “posed
the privilege question for decision with the formal claim of
privilege set against a dubious showing of necessity.” Id.,
at 11. Specifically, the plaintiffs had adduced “nothing to
suggest that the electronic equipment . . . had any causal
connection with the accident,” making discovery into the
equipment unnecessary. Ibid. The Government also had
“offered to make the surviving crew members available for
examination,” but the plaintiffs declined that invitation.
Ibid. For these reasons, and not because the Court inde-
pendently assessed whether “military secrets [were] at
stake,” ibid., the Court found the plaintiffs’ need “dubious”
and ordered the dismissal of their discovery request.
B
In this case, the Court inverts the Reynolds test so that
courts first ask whether the Government “has offered a
valid reason for invoking the privilege,” and then ask
whether the requesting party has demonstrated sufficient
need for the discovery. Ante, at 12. Now, a court “turn[s]
to the issue of necessity” not to determine whether to eval-
uate the Government’s reasons for invoking the state-
secrets privilege, but rather to ascertain “how deeply to
Cite as: 595 U. S. ____ (2022) 7
Opinion of THOMAS, J.
probe the details of, and basis for, the Government’s privi-
lege claim.” Ante, at 13.
Reynolds squarely forecloses the Court’s reasons-first ap-
proach. Regardless of need, a claim of privilege must pre-
vail once the Government has given a “valid reason” to sup-
port it, because “even the most compelling necessity cannot
overcome the claim of privilege if the court is ultimately sat-
isfied that military secrets are at stake.” Reynolds, 345
U. S., at 11. The Court offers no explanation how a court
might discern a “valid reason” to invoke the state-secrets
privilege without also being “satisfied” that state secrets
are in issue. Here, to determine whether the Government
has offered a “valid reason,” the Court even searched “the
evidentiary record” to ensure that “nothing . . . casts doubt
on [its] conclusion.” Ante, at 12. Thus, to start by evaluat-
ing the Government’s reasons for privilege, as the Court
does, leaves Reynolds’ analysis of need with no role to play.
That result is flatly inconsistent with Reynolds, where the
Court did not evaluate the Government’s reasons to support
its privilege claim, but instead ordered dismissal of the dis-
covery request in light of the plaintiffs’ “dubious showing of
necessity.” 345 U. S., at 11. In upending Reynolds’ test, the
Court fails to grapple with or even discuss Reynolds’ analy-
sis.
Unfortunately, by invoking need as Reynolds’ second
step, with a cryptic instruction to “probe” the Government’s
reasons yet more “deeply,” ante, at 13, the Court twice puts
the Nation’s security at risk. First, any judicial inquiry
more searching than the Court’s analysis here likely will
lead to in camera review whenever the requesting party
demonstrates adequate need. Because the Court already
dissects the CIA Director’s declaration, see ante, at 10–11,
it is unclear how else the Government could support its
privilege claim other than by disclosing evidence in camera.
But making in camera review turn on the party’s need im-
properly prescribes “automati[c] . . . disclosure to the judge”
8 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
in the narrow but important class of cases for which the
moving party demonstrates adequate need. Reynolds, 345
U. S., at 10. Such an approach also ignores that “examina-
tion of the evidence . . . by the judge alone” “jeopardize[s]
the security which the privilege is meant to protect.” Ibid.While the Executive can control its subordinates’ access to
state secrets and enforce penalties if such material is mis-
handled, it has little control once state secrets fall into the
Judiciary’s hands. Disclosure to a judge, therefore, poses a
very real national-security threat. The plurality’s cavalier
statement that “sometimes” in camera review is warranted
fails even to acknowledge that risk. Ante, at 15.
Second, the Court’s inverted Reynolds test undermines
the “utmost deference” owed to the Executive’s national-
security judgments. Egan, 484 U. S., at 530 (internal quo-
tation marks omitted). While the Court purports to apply
that standard in this case, see ante, at 8, it then instructs
courts to “probe” more “deeply” the “basis for . . . the Gov-
ernment’s privilege claim” when need is established, ante,
at 13. This will inevitably result in “judicial second-
guessing” of core national-security determinations, “de-
feat[ing] the unity, secrecy, and dispatch that the Founders
believed to be so important” to the Executive Branch.
Hamdi v. Rumsfeld, 542 U. S. 507, 592 (2004) (THOMAS, J.,
dissenting); see also The Federalist No. 64, pp. 392–393 (C.
Rossiter ed. 1961) (because “perfect secrecy [is] sometimes
requisite” in international affairs, the President must be
“able to manage the business of intelligence in such manner
as prudence may suggest”).
C
JUSTICE KAVANAUGH joins the Court’s opinion but would
reframe its test. Rather than invert Reynolds’ two-step ap-
proach, he maintains that the Government’s assertion of
privilege should prompt a “threshold judicial inquiry” in
which a court asks whether “the ‘circumstances indicat[e] a
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reasonable possibility’ that state secrets are involved.”
Post, at 1 (opinion concurring in part) (quoting Reynolds,
345 U. S., at 11). JUSTICE KAVANAUGH fails to describe
what this analysis entails, other than to characterize it as
“not demanding” and the result as “typically self-evident.”
Post, at 1. But his Reynolds step 0 cannot be meaningfully
different from the Court’s upfront demand for reason giv-
ing. He concedes that this is a case of “ ‘dubious’ need,” post,
at 1 (quoting Reynolds, 345 U. S., at 11), so he cannot think
that the Court properly applies Reynolds’ second step. He
also joins the Court’s analysis in relevant part, which indi-
cates that his “threshold judicial inquiry” includes both the
Court’s searching evaluation of the CIA Director’s declara-
tion and its review of the record to ensure that nothing
“casts doubt” on the Director’s explanation. See ante, at 12
(majority opinion). In short, JUSTICE KAVANAUGH’s tripar-
tite test must likewise require plenary (though deferential)
review at the “threshold,” with more exacting review (some-
times including in camera review) as the party’s need
grows.
To be sure, Reynolds acknowledged that the Government
raised the state-secrets privilege “under circumstances in-
dicating a reasonable possibility that military secrets were
involved.” 345 U. S., at 10–11. JUSTICE KAVANAUGH relies
on that language to create Reynolds step 0. See post, at 1
(opinion concurring in part). But Reynolds did not envision
the threshold reason-giving requirement that JUSTICE
KAVANAUGH proposes and the Court now applies. Instead,
in discussing the “circumstances,” Reynolds merely charac-
terized the facts of the case: There was “a reasonable possi-
bility that military secrets were involved” because the case
involved “a military plane which had gone aloft to test se-
cret electronic equipment.” 345 U. S., at 10–11. It did not
require a “threshold judicial inquiry” to make that observa-
tion. Nor does it require any meaningful “inquiry” to ob-
10 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
serve that this case involves an alleged clandestine deten-
tion site. Again, Reynolds’ only “threshold inquiry” was to
assess the plaintiffs’ need for the Government’s privileged
material. That is why the Court decided that the Govern-
ment’s claim of privilege “cut off further demand for the doc-
uments on the showing of necessity” without assessing the
validity of the Government’s reasons. Id., at 11. The Court
and JUSTICE KAVANAUGH’s reasons-first, need-later ap-
proach has no basis in our case law.
D
Finally, JUSTICE GORSUCH would dispense with Reynolds
and instruct judges to evaluate de novo the Government’s
invocation of the state-secrets privilege. He does not say
“de novo,” but his analysis makes the point clear. He sum-
marily dismisses the CIA Director’s 15-page declaration as
a “conclusory assertion,” post, at 23 (dissenting opinion),
proposes that courts “often should” review state secrets in
camera, post, at 18, and then suggests that courts “inde-
pendently” evaluate that privileged information, post, at 15.
This approach finds no support in Reynolds, Egan, or re-
lated cases, see Part II–A, supra, as JUSTICE GORSUCH ef-
fectively concedes. He rejects Egan, see, e.g., post, at 17,
and he criticizes Reynolds for accepting the Government’s
claim of privilege “at face value” “without even pausing to
review” the privileged information, post, at 15. True, quot-
ing Reynolds, JUSTICE GORSUCH indicates that courts
should ask whether discovery would present a “ ‘reasonable
danger’ ” to national security. Post, at 17 (quoting 345 U. S.,
at 10). But the question remains: in whose judgment? His
answer is clear: our “independent judgment.” Post, at 17.
JUSTICE GORSUCH offers three arguments to support
de novo judicial review of a state-secrets claim, none of
which has merit. First, he asserts that “courts generally
must respect . . . the ancient rule that the public enjoys a
right to ‘every man’s evidence.’ ” Post, at 11 (quoting 4 J.
Cite as: 595 U. S. ____ (2022) 11
Opinion of THOMAS, J.
Wigmore, Evidence in Trials at Common Law §2192,
p. 2965 (1905)). But whatever “right” there may be to civil
discovery generally,2 there is no “right” to state secrets spe-
cifically. As Wigmore explained, when any of “the various
privileges” applies, the obligation to produce evidence is
“not insisted upon.” Id., at 2967. The state-secrets privi-
lege, of course, is “a privilege which is well established in
the law of evidence.” Reynolds, 345 U. S., at 6–7; see also
Totten v. United States, 92 U. S. 105 (1876); Burr, 25
F. Cas., at 37. Thus, to assert a “right” to discovery proves
nothing, because the formal claim of the state-secrets priv-
ilege overrides it here.
Second, JUSTICE GORSUCH posits that “[b]ecause Con-
gress has expressly authorized the Judiciary to entertain
this suit” by enacting §1782, “it follows that we may not re-
flexively defer to the Executive’s wish to see it dismissed.”
Post, at 12, n. 10. But that argument “omits an important
caveat found in the same [provision]” on which JUSTICE
GORSUCH relies. Ibid. Section 1782(a) provides: “A person
may not be compelled to give his testimony or statement or
to produce a document or other thing in violation of any le-
gally applicable privilege.” Thus, far from inviting de novo
review, Congress instructed federal courts to apply all priv-
ileges—including the state-secrets privilege—with full
——————
2 But see, e.g., 4 St. George Tucker, Blackstone’s Commentaries 381–
382 (1803) (discussing limits on discovery at common law, including the
lack of “complete discovery by the oath of the parties”; “a compulsive
power for the production of books and papers belonging to the parties”;
and “powe[r] to examine witnesses abroad”); E. Sunderland, Scope and
Method of Discovery Before Trial, 42 Yale L. J. 863, 866–867 (1933) (dis-
cussing limits on discovery in equity); S. Subrin, Fishing Expeditions Al-
lowed: The Historical Background of the 1938 Federal Discovery Rules,
39 Boston College L. Rev. 691, 694 (1998) (“Historically, discovery [was]
extremely limited in both England and the United States”); id., at 695
(at common law, “a party could neither take the stand nor force the op-
posing party to do so”).
12 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
force. Invoking §1782 merely presents anew the question
in this case: what does the state-secrets privilege require.3
Third, JUSTICE GORSUCH invokes Chief Justice Mar-
shall’s two opinions in the Burr prosecution, but both cut
decisively against him. In 1807, the Federal Government
prosecuted Aaron Burr, the former Vice President, for trea-
son and, later, misdemeanor incitement. Vance, 591 U. S.,
at ___, ___ (slip op., at 3, 7). Burr moved for a subpoena
duces tecum ordering President Jefferson to produce a let-
ter from General James Wilkinson, Burr’s principal ac-
cuser. Id., at ___–___ (slip op., at 4–5). Chief Justice Mar-
shall explained that it “d[id] not . . . appear to the court that
the the president d[id] object to the production of any part
of [Wilkinson’s] letter.” United States v. Burr, 25 F. Cas.
187, 192 (No. 14,694) (CC Va. 1807); see also Burr, 25
F. Cas., at 31, 37. But “[h]ad the president” done so and
“subjected [the letter] to certain restrictions, and stated
that in his judgment the public interest required certain
parts of it to be kept secret,” Chief Justice Marshall assured
that “all proper respect would have been paid” to the Presi-
dent’s invocation of privilege. Burr, 25 F. Cas., at 192.
JUSTICE GORSUCH nonetheless reasons that it would not
have been enough, to defeat the subpoena, for President
Jefferson to have objected on state-secrets grounds. Chief
Justice Marshall supposedly would have required the Pres-
ident to “ ‘state the particular reasons’ ” for withholding the
Wilkinson letter, and the court then could have “decide[d]
for itself whether to sustain a claim of privilege.” Post, at
12 (quoting Burr, 25 F. Cas., at 192). JUSTICE GORSUCH’s
argument by selective quotation is incorrect. Chief Justice
Marshall explained that “on objections being made by the
president to the production of a paper, the court would not
——————
3 JUSTICE GORSUCH eventually recognizes that neither the supposed
“duty to produce every man’s evidence” nor §1782 actually supports his
position. Post, at 17, n. 12. He concedes that both sources simply present
“the question when the state secrets privilege applies.” Ibid.
Cite as: 595 U. S. ____ (2022) 13
Opinion of THOMAS, J.
proceed further in the case without such an affidavit as
would clearly sh[o]w the paper to be essential to the justice
of the case.” Id., at 192 (emphasis added); see also Burr, 25
F. Cas., at 37 (“If it does contain any matter which . . . it is
not the wish of the executive to disclose, such matter, if it
be not immediately and essentially applicable to the point,
will, of course, be suppressed”). That analysis tracks Reyn-
olds’ first step: The Government invokes the state-secrets
privilege, and the privilege will prevail unless the request-
ing party makes the requisite showing of need. Thus,
JUSTICE GORSUCH is simply incorrect that “Chief Justice
Marshall nowhere suggested that the state secrets privilege
should apply in this country without . . . a statement” of
reasons to support the privilege. Post, at 13, n. 11.
JUSTICE GORSUCH further errs in asserting that a review-
ing court must demand a statement of reasons and then
“decide for itself ” whether those reasons are adequate.
Post, at 12. Quite the opposite: Chief Justice Marshall ex-
plained that “[t]he president may,” not must, “state the par-
ticular reasons” for his claim of privilege, and that the court
will “unquestionably allow . . . full force to those reasons,”
25 F. Cas., at 192 (emphasis added), not “decide for itself ”
whether they pass muster, post, at 12. That analysis fol-
lows Reynolds’ second step: If there is adequate need, the
Government may explain the basis for privilege and the
court affords “utmost deference” or “full force” to those rea-
sons. The reality of Burr, then, is the opposite of what
JUSTICE GORSUCH proposes.
Ultimately, JUSTICE GORSUCH’s animating concern is
that judicial deference to the Executive’s national-security
judgments risks collapsing “the many points of difference”
between our Chief Executive and the 18th-century British
monarch. Burr, 25 F. Cas., at 34. Not so. This Court’s
standard of utmost deference bears little relation to “the
privilege the English crown enjoyed.” Post, at 13. In con-
trasting the American Executive and the British monarch,
14 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
Chief Justice Marshall explained that only a king could not
be made “to appear under the process of the court,” and
therefore he alone could object even to the issuance of a sub-
poena. Burr, 25 F. Cas., at 34. The President, meanwhile,
must move to quash a subpoena rather than object to “its
being issued,” and then he may invoke “the law of evidence”
as grounds “for not obeying the process of the court.” Ibid.
That is precisely how the Executive Branch proceeded here.
After the District Court first granted Zubaydah’s discovery
application, the Government moved to quash it in light of
the state-secrets privilege. See ante, at 5–6. To eviscerate
that privilege, as JUSTICE GORSUCH proposes, would not
protect the Nation from monarchy. Rather, it would con-
travene the “constitutional directive” that the Executive
has “primary responsibility—along with the necessary
power—to protect the national security.” Zivotofsky v.
Kerry, 576 U. S. 1, 34 (2015) (THOMAS, J., concurring in
judgment in part and dissenting in part) (internal quotation
marks omitted).
III
While the Court recognizes that Zubaydah’s need for dis-
covery from Mitchell and Jessen is “not great,” ante, at 15;
see also ante, at 16 (plurality opinion), it refuses to dismiss
Zubaydah’s discovery application in light of his “dubious
showing of necessity,” Reynolds, 345 U. S., at 11. Instead,
as explained above, the Court begins at Reynolds’ second
step and concludes that the Government “has provided a
reasonable explanation” why Zubaydah’s proposed discov-
ery “could significantly harm national security interests.”
Ante, at 10.4 I agree that the Government has offered, at
——————
4 Elsewhere, JUSTICE BREYER notes that the “Polish government has
also never confirmed whether it cooperated with the CIA,” and he there-
fore declines to decide “what significance, if any, that disclosure would
have.” Ante, at 14 (plurality opinion). Any such disclosure plainly would
Cite as: 595 U. S. ____ (2022) 15
Opinion of THOMAS, J.
the very least, a “reasonable explanation” to support its
claim of state secrets, but I would dismiss Zubaydah’s dis-
covery application at Reynolds’ first step.5 For at least
three reasons, Zubaydah has failed to prove any nontrivial
need for his requested discovery.
First, Zubaydah will not use the requested discovery “in
a case” that can offer him any meaningful relief. Reynolds,
345 U. S., at 9. While even the plaintiffs in Reynolds sought
to exercise a federal right that potentially entitled them to
damages, Zubaydah, by contrast, does not assert any fed-
eral right to relief. He does not allege, for example, that the
proposed discovery would support his release from federal
custody. Nor could he, as “the sought discovery will be
shipped overseas for the benefit of another country’s judi-
cial system, and at that point, totally out of control of a do-
mestic court.” 965 F. 3d, at 792 (opinion of Bress, J.) (inter-
nal quotation marks omitted). Instead, Zubaydah requests
discovery on behalf of foreign authorities to help them pros-
ecute foreign nationals who allegedly committed crimes in
a foreign country. At least for purposes of the state-secrets
privilege, Zubaydah has no cognizable “need” to serve as a
conduit for foreign discovery. This Court has never held
that an individual’s desire to litigate a foreign case, let
alone his desire merely to assist in the litigation of someone
else’s foreign case, establishes any need under Reynolds, du-
bious or otherwise.
Second, Zubaydah has failed to pursue “an available al-
ternative” that “might have given [him] the evidence to
——————
have no significance. The state-secrets privilege “belongs to the Govern-
ment”—that is, our Government—alone. United States v. Reynolds, 345
U. S. 1, 7 (1953).
5 I agree that dismissal is the appropriate disposition because “the
privilege blocks Zubaydah’s discovery requests, which are the proceed-
ing’s sole object.” Ante, at 17 (plurality opinion). But even in ordinary
litigation, dismissal of the action is required whenever the case cannot
be fairly litigated without the disclosure of state secrets. See Totten v.
United States, 92 U. S. 105, 107 (1876).
16 UNITED STATES v. ZUBAYDAH
Opinion of THOMAS, J.
make out [his] case without forcing a showdown on the
claim of privilege.” Reynolds, 345 U. S., at 11. Before this
Court, Zubaydah recognizes that his testimony as an al-
leged “survivor” of CIA interrogation could substitute for
discovery from Mitchell and Jessen. Brief for Respondents
40. After all, what the Polish authorities supposedly “need
to know is what happened inside Abu Zubaydah’s cell be-
tween December 2002 and September 2003.” Tr. of Oral
Arg. 41. While Zubaydah complains that the Government
holds him “incommunicado,” he also admits that his attor-
neys may communicate on his behalf with the Govern-
ment’s “pre-clearance.” Brief for Respondents 40. At oral
argument, the Government confirmed that Zubaydah has
never asked to offer testimony under this preclearance pro-
cedure, see Tr. of Oral Arg. 73, and the Government has
since confirmed that the preclearance procedure remains
available, see Letter Brief for United States 3. Faced with
that confirmation, Zubaydah now concedes that “it is at
least theoretically possible” that the preclearance process
“will lead to a declaration that can assist the Polish prose-
cutor.” Letter Brief for Respondents 2. He even asks that
we hold his case in abeyance until he can prepare a decla-
ration. See ibid. But that request comes too late.
Zubaydah’s “failure to pursue” an “available alternative”
before demanding state secrets betrays “a dubious showing
of necessity” that cannot overcome the Government’s “for-
mal claim of privilege.” Reynolds, 345 U. S., at 11.
Third, on Zubaydah’s own telling, it is “possible . . . to ad-
duce the essential facts . . . without resort to material
touching upon military secrets.” Ibid. At oral argument,
Zubaydah’s counsel clarified that Zubaydah does not need
evidence about Poland specifically and seeks discovery only
regarding the conditions of his confinement while in CIA
custody. See Tr. of Oral Arg. 41. Of course, that discovery
would still tend to confirm or deny the existence of a deten-
tion site in Poland. See ante, at 17 (plurality opinion). But,
Cite as: 595 U. S. ____ (2022) 17
Opinion of THOMAS, J.
regardless, discovery is not warranted because Zubaydah
effectively disclaims any need for such evidence. In his
brief, Zubaydah claims already to have “abundant evi-
dence” of his “detention and torture on Polish soil.” Brief
for Respondents 11. Similarly, at argument, Zubaydah’s
counsel represented that Polish authorities have “inter-
viewed 62 people” and “amassed 43 volumes of documents.”
Tr. of Oral Arg. 44. His counsel further explained: “We’re
simply trying to supplement information” the Polish prose-
cutor “already has.” Id., at 66. In light of these admissions,
it is clear that Zubaydah has already “adduce[d] the essen-
tial facts” that he believes are necessary to support the
Polish prosecution. Reynolds, 345 U. S., at 11. His desire
“simply . . . to supplement” a foreign investigation, Tr. of
Oral Arg. 66, cannot establish the “immediat[e] and essen-
tia[l]” need required to overcome the Government’s formal
invocation of the state-secrets privilege, Burr, 25 F. Cas., at
37.
* * *
I would hold that Abu Zubaydah has demonstrated only
“a dubious showing of necessity” for the discovery he seeks
in this case. Reynolds, 345 U. S., at 11. For that reason
alone, dismissal of Zubaydah’s discovery application is re-
quired. I, therefore, join only Part IV of the Court’s opinion.
Cite as: 595 U. S. ____ (2022) 1
KAVANAUGH, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–827
_________________
UNITED STATES, PETITIONER v. ZAYN AL-ABIDIN
MUHAMMAD HUSAYN, AKA ABU ZUBAYDAH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 3, 2022]
JUSTICE KAVANAUGH, with whom JUSTICE BARRETT
joins, concurring in part.
I join all but Part II–B–2 of the Court’s opinion. I add
this brief concurrence simply to be clear about my under-
standing of how the “formula of compromise” articulated in
Reynolds works in practice. United States v. Reynolds, 345
U. S. 1, 9 (1953).
For the state secrets privilege to apply, the relevant gov-
ernment agency head must first assert the privilege. The
court must then determine that the “circumstances in-
dicat[e] a reasonable possibility” that state secrets are in-
volved. Id., at 11. That threshold judicial inquiry is not
demanding because, as our precedent and this case illus-
trate, those circumstances are typically self-evident when
the Executive Branch asserts the state secrets privilege.
See, e.g., id., at 10; Totten v. United States, 92 U. S. 105,
106–107 (1876).
At that point, the court must accept the Executive
Branch’s assertion of privilege without further inquiry if
the requester has shown only a “dubious” need for the re-
quested information. Reynolds, 345 U. S., at 11. In many
state secrets disputes, the case ends there—again, this case
proves the point. See Part III, ante. If the requester has
demonstrated a “strong” need for the information, the court
2 UNITED STATES v. ZUBAYDAH
KAVANAUGH, J., concurring in part
may under certain circumstances review the requested doc-
uments in camera to confirm that the information falls
within the privilege. Reynolds, 345 U. S., at 10−11. To be
clear, however, even if the requester has a strong need, a
court should nonetheless not demand to examine the evi-
dence—even “alone, in chambers”—if the Government can
“satisfy the court, from all the circumstances of the case,
that there is a reasonable danger that compulsion of the ev-
idence will expose military matters which, in the interest of
national security, should not be divulged.” Id., at 10; see
also id., at 11, n. 26 (noting that in Totten, “[t]he action was
dismissed on the pleadings” because “it was so obvious” that
“the very subject matter of the action, a contract to perform
espionage, was a matter of state secret”).
In all events, once the court determines that the re-
quested 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.
Cite as: 595 U. S. ____ (2022) 1
KAGAN, J., concurring
Opinioninof
part and, dissenting
KAGAN J. in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–827
_________________
UNITED STATES, PETITIONER v. ZAYN AL-ABIDIN
MUHAMMAD HUSAYN, AKA ABU ZUBAYDAH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 3, 2022]
JUSTICE KAGAN, concurring in part and dissenting in
part.
Both sides have substantial interests in this case—the
Government in safeguarding its relationships with foreign
intelligence partners; Abu Zubaydah in obtaining infor-
mation 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 in-
terrogation 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 dis-
miss this suit.
Start with where I join the Court: I agree the Government
has met its burden of showing that testimony by former CIA
contractors confirming the location of Zubaydah’s detention
would pose a “reasonable danger” of harm to national secu-
rity. United States v. Reynolds, 345 U. S. 1, 10 (1953); see
2 UNITED STATES v. ZUBAYDAH
KAGAN, J., concurring
Opinioninof
part and, dissenting
KAGAN J. in part
ante, at 10–15. That is true for two reasons. First, testi-
mony of that kind would remove whatever “element of
doubt” exists about the accuracy of public reporting on the
detention site’s location, potentially undermining other CIA
activities in that country. App. to Pet. for Cert. 135a (Decl.
of Michael Pompeo, Director, CIA). Second (and possibly
more important here), official confirmation would conflict
with commitments the Government has made to foreign in-
telligence services to never disclose clandestine relation-
ships—even as “time passes” and “new political parties or
officials come to power” or “media leaks occur.” Id., at 136a.
Standing by those commitments, the Government credibly
states, is “critical” to preserving current intelligence part-
nerships and establishing new ones. Id., at 132a; see id., at
136a; ante, at 10–12. Those concerns explain why the Gov-
ernment has refused, across three Presidential administra-
tions, to confirm or deny reports about the foreign countries
involved in the CIA’s “former detention and interrogation
program.” App. to Pet. for Cert. 133a; see Tr. of Oral Arg.
25. The Court is right to respect that decision, and thus to
deny Zubaydah’s request for the location of his detention.
But that does not mean, as the Court insists, that we
should dismiss Zubaydah’s suit. From the beginning of this
litigation, Zubaydah has distinguished between the
“where” and the “what”—the location of the detention site
at issue and the treatment he received there. See, e.g., App.
to Pet. for Cert. 42a (District Court Order). And in this
Court, his attorney made clear that Zubaydah’s primary in-
terest is in obtaining information on the latter subject. He
wants the CIA contractors to testify about “what happened
inside [his] cell” during a particular 10-month period, irre-
spective of where that cell may have been. Tr. of Oral Arg.
41; see ibid. (“I’m not planning to ask did it happen in Po-
land. . . . I want to ask simple questions like, how was Abu
Zubaydah fed? What was his medical condition? What was
his cell like? And, yes, was he tortured?”). For its part, the
Cite as: 595 U. S. ____ (2022) 3
KAGAN, J., concurring
Opinioninof
part and, dissenting
KAGAN J. in part
Government concedes that information about Zubaydah’s
treatment is no longer classified: It is, on any understand-
ing, not a state secret. See Tr. of Oral Arg. 6 (explaining
that the Government in 2014 “decided to declassify” infor-
mation about “the treatment of detainees” like Zubaydah
“to facilitate public scrutiny of the United States’ actions”).
That creates the possibility of segregating the classified (lo-
cation) information from the unclassified (treatment) infor-
mation and allowing discovery into the latter.
That kind of segregation has happened before, showing
what could be done in this case. In 2014, the Senate Select
Committee on Intelligence released a nearly 700-page Re-
port, describing the CIA’s torture of various detainees—all
while using code words like “Detention Site Green” and “De-
tention Site Blue” to designate particular facilities. See S.
Rep. No. 113–288 (2014) (Senate Report). More recently,
the CIA permitted its former contractors to testify, in civil
litigation and Military Commission hearings, about their
use of “enhanced interrogation techniques” on detainees—
again without disclosing any locations. See, e.g., Stipula-
tion Regarding Discovery in Salim v. Mitchell, No. 2:15–cv–
286 (ED Wash.), ECF Doc. 47, pp. 5, 7–8. Both the Senate
Report and the contractors’ testimony discuss Zubaydah,
explaining how he was tortured at the first facility he was
brought to (whose location has also been identified in public
reporting). See, e.g., Senate Report, at 17–48, 231, n. 1316
(describing, among other interrogation methods, more than
80 waterboardings); see also post, at 4–5 (GORSUCH, J., dis-
senting). But neither source details what happened to
Zubaydah at the site here in question, the second facility at
which he was detained. What Zubaydah now mainly wants
is to fill that gap. He is requesting the same information
about the second facility as he already has about the first:
the contractors’ testimony about the treatment he received
there, scrubbed of any reference to where it occurred. So
the procedures that worked before—to protect the classified
4 UNITED STATES v. ZUBAYDAH
KAGAN, J., concurring
Opinioninof
part and, dissenting
KAGAN J. in part
while disclosing the unclassified—can work again. And this
case can go forward on that basis.
The Court offers no satisfactory explanation for rejecting
that approach. It says that segregation cannot succeed be-
cause of “the specific language of Zubaydah’s discovery re-
quests”—twelve of which “contain the word ‘Poland’ or
‘Polish.’ ” Ante, at 9; see ante, at 16–17. That is fair enough,
so far as it goes: Responses to the requests as currently
written would, as the Court says, “either confirm or deny”
that Poland hosted a CIA-operated detention site. Ante, at
9. But a problem of phrasing can be solved by rephrasing.
Zubaydah has long made clear—not just in this Court but
also below—that he would modify his requests if that would
make a difference. See, e.g., Tr. of Oral Arg. 41–44, 49–50;
App. to Pet. for Cert. 42a. All that now needs to happen is
for this Court to say that it would. Then Zubaydah would
excise any country name from his discovery requests; and
the contractors would answer those requests as they previ-
ously have done—by describing his treatment at a deten-
tion site, without divulging where that site was. Even the
Court admits that possibility, though in a backhanded way.
The Court says it “do[es] not here decide whether”
Zubaydah could obtain location-cleansed testimony by fil-
ing a new suit containing narrowed discovery requests.
Ante, at 17. But the question of segregation can be decided
now, and in this suit, rather than by sending Zubaydah
back to square one. See also post, at 29–30 (GORSUCH, J.,
dissenting). I would allow Zubaydah to amend his requests
to remove all Poland-specific references, so that he can ob-
tain testimony about his detention—in whatever country it
took place.
In short, the holding that national-security risks attach
to confirming the location of Zubaydah’s detention—with
which I agree—should not end this case. A court can segre-
gate that classified information from unclassified material
about the nature of Zubaydah’s detention. I would remand
Cite as: 595 U. S. ____ (2022) 5
KAGAN, J., concurring
Opinioninof
part and, dissenting
KAGAN J. in part
the case for that to occur, thus protecting not only the
United States’s security interests but also Zubaydah’s in-
terest in forcing disclosure of government abuse.
Cite as: 595 U. S. ____ (2022) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–827
_________________
UNITED STATES, PETITIONER v. ZAYN AL-ABIDIN
MUHAMMAD HUSAYN, AKA ABU ZUBAYDAH, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[March 3, 2022]
JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR
joins, dissenting.
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 tor-
ture 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 fur-
ther modest measure of embarrassment. But respectfully,
we should not pretend it will safeguard any secret.
I
A
Start with what the government itself has said about
Zubaydah. In 2014, a Select Committee of the United
States Senate published a 683-page report about the CIA’s
detention and interrogation practices. The report did not
focus on Zubaydah alone, but it included certain details
about his treatment, including the following. After his cap-
2 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
ture in Pakistan in March 2002, the government trans-
ported him to a “black site” known as Detention Site Green.
See S. Rep. No. 113–288, pp. 21–23 (2014) (Senate Report). 1
At that time, CIA officials thought Zubaydah might have
been the “third or fourth man” in al Qaeda and withholding
information about the September 11 attacks and potential
future assaults. Id., at 410–411 (internal quotation marks
omitted).
In an effort to extract that information, the CIA hired two
contractors, James Mitchell and John Jessen, and author-
ized them to employ what it called “enhanced interrogation
techniques.” Brief for United States 3. Mitchell and Jessen
worked “on a near 24-hour-per-day basis” starting August
4, 2002. Senate Report 40; see also id., at 35, 42. 2 They
waterboarded Zubaydah at least 80 times, simulated live
burials in coffins for hundreds of hours, and performed rec-
tal exams designed to establish “total control over the de-
tainee.” Id., at 42–43, 82, 231, n. 1316, 488, 495 (internal
quotation marks omitted). Six days into his ordeal,
Zubaydah was sobbing, twitching, and hyperventilating.
Id., at 41, 43, 111–112. During one waterboarding session,
Zubaydah became “completely unresponsive, with bubbles
rising through his open, full mouth.” Id., at 43–44 (internal
quotation marks omitted). He became so compliant that he
would prepare for waterboarding at the snap of a finger.
Id., at 43.
By this point, Mitchell and Jessen concluded that it was
“ ‘highly unlikely’ that Zubaydah possessed the information
——————
1 Although the government has not confirmed it, published reports
have placed Detention Site Green in Thailand. See, e.g., S. Bengali & C.
Megerian, The CIA Closed Its Original ‘Black Site’ Years Ago, L. A.
Times, Apr. 22, 2018, https://www.latimes.com/world/asia/la-fg-thailand-
cia-haspel-2018-htmlstory.html.
2 In the Senate Report, Mitchell and Jessen are code-named Swigert
and Dunbar. See, e.g., Senate Report 21. Mitchell and Jessen later ad-
mitted their roles in the CIA’s enhanced interrogation program. See Hu-
sayn v. Mitchell, 938 F. 3d 1123, 1127, n. 4 (CA9 2019).
Cite as: 595 U. S. ____ (2022) 3
GORSUCH, J., dissenting
they were seeking,” and they sought to end the interroga-
tions. Id., at 42. It seems their assessment may have been
correct. Although Zubaydah’s relationship with al Qaeda
remains the subject of debate today, the authors of the Sen-
ate Report found that the CIA’s records “do not support” the
suggestion that he was involved in the September 11 at-
tacks. Id., at 410. At the time, however, CIA headquarters
was not yet persuaded by Mitchell’s and Jessen’s report. It
instructed the pair to continue their work. Id., at 43. Fol-
lowing these directions, Mitchell and Jessen carried on for
two more weeks until their superiors finally concluded that
Zubaydah “did not possess any new terrorist threat infor-
mation.” Id., at 40, 45.
In December 2002, the government moved Zubaydah to
another black site, this one known as Detention Site Blue.
Id., at 67. After a stay there and, it seems, years of further
transfers among other black sites, Zubaydah was trans-
ferred to the government’s detention center in Guantánamo
Bay in 2006. Brief for United States 2. More than 15 years
later, he remains there still. Ibid.B
The Senate Report is only the start of what we know. As
far back as 2007, the Council of Europe issued a lengthy
report finding that the CIA held Zubaydah at a black site
in Poland after his capture. 3 In 2012, Aleksander Kwas-
niewski, the President of Poland from 1995 to 2005, told re-
porters that the CIA site was established “with [his]
knowledge.” 4 In 2014, the European Court of Human
Rights found “beyond reasonable doubt” that Zubaydah was
——————
3 See D. Marty, Secret Detentions and Illegal Transfers of Detainees
Involving Council of Europe Member States: Second Report, Council of
Europe Parliamentary Assembly Committee on Legal Affairs and Hu-
man Rights ¶¶ 70, 127 (2007).
4 Husayn (Abu Zubaydah) v. Poland, no. 7511/13, ¶234, ECHR 2014
(internal quotation marks omitted).
4 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
detained in Poland from December 2002 until September
2003. 5 In support of its conclusion, the ECHR cited evi-
dence spanning over 100 pages, including declassified flight
records, Polish governmental records, and eyewitness testi-
mony. Many other public sources have likewise docu-
mented that Zubaydah was transported from Detention
Site Green to Detention Site Blue in Poland in December
2002—and that he remained there until September 2003. 6
We know even more from Mitchell and Jessen them-
selves. The pair have spoken and written extensively—
without governmental objection—about their activities. In
2016, the CIA permitted Mitchell to publish a book. En-
hanced Interrogation is available on Amazon from $13.99,
where it is touted as “lift[ing] the curtain” on the CIA’s in-
terrogation program, including “its methods, and its down-
fall.” 7 In 2017, as part of a lawsuit brought by other former
CIA detainees, the government allowed Mitchell and Jessen
to testify how they conceived the idea of waterboarding de-
tainees, how they asked the CIA to discontinue the use of
enhanced interrogation techniques with Zubaydah, and
how headquarters refused. See Stipulation Regarding Dis-
covery in Salim v. Mitchell, No. 2:15–cv–286 (ED Wash.
2015), ECF Doc. 47; Brief for Respondents 7–8. In 2020, the
pair testified with governmental permission once more, this
time in military commission hearings at Guantánamo Bay.
Over eight days, covering 2,000 pages of testimony, Mitch-
ell explained how Zubaydah was waterboarded and kept
awake for 126 consecutive hours, along with other details
——————
5 See id., ¶¶ 404–529.
6 See, e.g., Brief for Bureau of Investigative Journalism et al. as Amici
Curiae 11–43 (citing examples).
7 See J. Mitchell & B. Harlow, Enhanced Interrogation: Inside the
Minds and Motives of the Islamic Terrorists Trying To Destroy America
(online source archived at www.supremecourt.gov).
Cite as: 595 U. S. ____ (2022) 5
GORSUCH, J., dissenting
about the CIA’s techniques. 8 Jessen provided similar testi-
mony. 9 In 2021, Mitchell even appeared in an HBO docu-
mentary about his activities and treatment of Zubaydah.
See The Forever Prisoner (2021).
C
Still, Zubaydah’s story remains incomplete. While we
know that the CIA held Zubaydah at Detention Site Blue
from December 2002 until September 2003, and while we
know that the site was in Poland, what happened to him
there remains unclear. The Senate Report explains that he
was tortured immediately before that period, during his
time at Detention Site Green. Senate Report 208, n. 1207.
The Senate Report also recounts how Mitchell and Jessen
tortured other detainees at Detention Site Blue, including
details about how they waterboarded one detainee 183
times over two weeks. Id., at 65–72, 77–93, 101, 103, 268.
But, Zubaydah’s lawyers tell us, the details of Zubaydah’s
treatment during this singular period are not yet publicly
documented.
Today, Polish prosecutors are seeking to unravel that
part of the story and determine whether criminal charges
are appropriate in that country. Pursuant to 28 U. S. C.
§1782, Zubaydah’s attorneys filed this domestic lawsuit to
obtain discovery from Mitchell and Jessen to assist the
Polish investigation. Section 1782 allows suits of just this
kind: It provides that federal courts may order persons in
this country to give testimony or produce documents “for
use in a proceeding in a foreign or international tribunal,
including criminal investigations conducted before formal
accusation.”
——————
8 See Tr. in United States v. Khalid Shaikh Mohammad, pp. 30348–
30349 (Jan. 21, 2020); id., at 30441–30443, 30469 (Jan. 22, 2020 (morn-
ing)).
9 See, e.g., id., at 32450–32467 (Jan. 31, 2020).
6 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
Early in the litigation, Zubaydah’s lawyers issued sub-
poenas to Mitchell and Jessen seeking their depositions and
the production of documents. See Appendix, ante, at 19–20.
Essentially, the requests fell into three main categories.
Zubaydah’s lawyers sought: (1) information to confirm that
Detention Site Blue was located in Poland; (2) details about
Zubaydah’s interrogation, his treatment, and his conditions
of confinement; and (3) information about the involvement
of Polish officials.
The government filed a motion seeking to have the peti-
tion for discovery dismissed in its entirety. In support, the
government supplied a declaration from then-CIA Director
Mike Pompeo. The declaration conceded that “the en-
hanced interrogation techniques employed with respect to
specific detainees in the program, and their conditions of
confinement, are no longer classified.” App. to Pet. for Cert.
143a; id., at 153a. At the same time, the declaration as-
serted that the location of Detention Site Blue remained a
state secret. And the declaration averred that soliciting in-
formation about the involvement of Polish nationals could
complicate national security. Ibid.In response, Zubaydah’s lawyers sought an accommoda-
tion. While they continued to pursue all of their requested
discovery, they also acknowledged the District Court’s
power to modify or limit their discovery requests. Id., at
42a. And they stressed that “[v]aluable discovery may pro-
ceed without requiring [Mitchell and Jessen] to confirm ei-
ther the location of any particular site, or the cooperation of
any particular government.” Ibid. (internal quotation
marks omitted). Zubaydah’s lawyers noted, too, that the
government had previously allowed Mitchell and Jessen to
testify about their activities at other detention sites using
code names, and they offered to follow the same protocol
here. Ibid.In the end, however, the District Court granted the gov-
ernment’s motion to dismiss. In doing so, the court rejected
Cite as: 595 U. S. ____ (2022) 7
GORSUCH, J., dissenting
the government’s suggestion that its detention site in Po-
land remained a state secret. The court concluded the state
secrets privilege did not apply because of how much atten-
tion the site had received over the years and the govern-
ment’s failure to explain how acknowledging the site would
cause further harm. Id., at 52a–53a, 59a. Still, the court
expressed concern that if Mitchell and Jessen exposed the
names of Polish officials and their roles at the site, it could
complicate national security in light of the government’s
declaration. Id., at 59a.
On appeal, the Ninth Circuit affirmed in part and re-
versed in part. With respect to the third category of infor-
mation Zubaydah sought, concerning the involvement of
Polish nationals, the Court of Appeals agreed with the Dis-
trict Court and the government. Discovery into “the identi-
ties and roles of foreign individuals involved with the de-
tention facility, operational details about the facility, and
any contracts made with Polish government officials or pri-
vate persons residing in Poland might implicate the CIA’s
intelligence gathering efforts.” Husayn v. Mitchell, 938
F. 3d 1123, 1134 (CA9 2019).
At the same time, the Ninth Circuit held that the District
Court erred by refusing discovery into the first and second
categories of information Zubaydah sought. With respect
to the first, the Court of Appeals pointed to the District
Court’s finding that the CIA’s detention facility in Poland
was widely known and did not qualify as a state secret.
Ibid. Given that finding, the Court of Appeals concluded,
Zubaydah was entitled to discovery about the site’s location.
Ibid. With respect to the second category, the Court of Ap-
peals held that “information about the use of interrogation
techniques,” “conditions of confinement,” and the “details of
Abu Zubaydah’s treatment” could be provided without risk
to any state secret. Ibid. The court stressed that Mitchell
and Jessen had already provided similar information about
Zubaydah’s treatment at other locations in past cases using
8 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
code names; it saw no reason why the same course could not
be followed here. Id., at 1137. The Court of Appeals faulted
the District Court for failing to disaggregate or limit the
scope of Zubaydah’s requests before dismissing them all.
Id., at 1136–1137.
D
Dissatisfied with its partial victory before the Ninth Cir-
cuit, the government seeks further relief in this Court. But
as it comes to us, the parties’ dispute is limited. Zubaydah
does not appeal the Ninth Circuit’s decision. So while the
majority (repeatedly) emphasizes the breadth of his initial
discovery requests, ante, at 5, 9, that is beside the point. No
one argues that Zubaydah may pursue the third category of
information he initially sought—including the identities
and roles of foreign individuals involved with the detention
facility.
Even when it comes to the two remaining categories of
information at issue—the location of the government’s de-
tention site and the CIA’s treatment of Zubaydah there—
the parties’ dispute has narrowed substantially. The Dis-
trict Court found that the site’s location did not implicate a
state secret, and the Court of Appeals agreed. The govern-
ment asserts this decision was mistaken, while Zubaydah’s
lawyers defend it. But, as they have throughout the litiga-
tion, Zubaydah’s lawyers also offer an alternative. Before
the District Court, they stressed that “[v]aluable discovery”
could proceed into Zubaydah’s interrogations, treatment,
and conditions of confinement without requiring Mitchell
and Jessen to confirm “the location of any particular site or
the cooperation” of foreign nationals. App. to Pet. for Cert.
42a (internal quotation marks omitted). Before this Court,
they stress the same point. See Tr. of Oral Arg. 41.
As it arrives before us, then, the central question in this
case concerns the request for information about “what hap-
pened inside Abu Zubaydah’s cell between December 2002
Cite as: 595 U. S. ____ (2022) 9
GORSUCH, J., dissenting
and September 2003.” Ibid. It is this information—about
Zubaydah’s interrogation, treatment, and conditions of con-
finement at the hands of the CIA—that Zubaydah’s lawyers
say they need most. Nor does anyone suggest this request
implicates a state secret. The government does not (and
cannot) claim that its custody of Zubaydah at a black site
remains a state secret: That much was declassified and
documented in the Senate Report years ago. See, e.g., Sen-
ate Report 67. The government has conceded, too, that the
interrogation techniques Mitchell and Jessen employed and
Zubaydah’s conditions of confinement and treatment within
his cell during that period are “no longer classified.” App.
to Pet. for Cert. 143a; id., at 153a. At a minimum,
Zubaydah’s lawyers argue, all this means he should be al-
lowed discovery from Mitchell and Jessen about his inter-
rogations, treatment, and conditions of confinement from
December 2002 until September 2003, with safeguards to
protect against the disclosure of the site’s location and the
involvement of foreign nationals.
This request is not a novel one. As Zubaydah’s attorneys
observe, the Senate Report discussed the treatment of de-
tainees at various sites during specific time periods while
referring to those locations by code name—Green, Cobalt,
Blue. See, e.g., Senate Report 99–108 (referencing torture
of various detainees at Detention Site Cobalt). In extensive
civil litigation preceding this suit, Mitchell and Jessen tes-
tified using the same practice—speaking about the treat-
ment of detainees during specific periods while using code
names where appropriate. Stipulation Regarding Discov-
ery in Salim v. Mitchell, No. 2:15–cv–286. The military
commissions where the government allowed Mitchell and
Jessen to appear employed the same procedure too. See,
e.g., Tr. in United States v. Khalid Shaikh Mohammad,
p. 31371, pt. 4 (Jan. 27, 2020).
Despite all this, the government asks us to dismiss this
lawsuit. What worked before, the government submits,
10 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
cannot work again. Unlike previous lawsuits, this one
alone must be dismissed at its outset. And, the government
insists, this Court owes “utmost deference” to its demand.
Brief for United States 19 (internal quotation marks omit-
ted).
II
A
I do not question that Article II grants the Executive sub-
stantial authority over the conduct of the Nation’s foreign
affairs. Cf. Nestle USA, Inc. v. Doe, 593 U. S. ___, ___–___
(2021) (GORSUCH, J., concurring) (slip op., at 5–6). Nor do
I doubt that the Executive’s responsibility in this field often
“poses ‘delicate’ and ‘complex’ questions involving ‘large el-
ements of prophecy . . . for which the Judiciary has neither
aptitude, facilities nor responsibility.’ ” Id., at ___ (slip op.,
at 6) (quoting Chicago & Southern Air Lines, Inc. v. Water-
man S. S. Corp., 333 U. S. 103, 111 (1948) (Jackson, J.)).
At the same time, in this arena as in many others, the
Constitution sometimes envisions a degree of interdepend-
ence between the branches of our government. So, for ex-
ample, while the Executive bears many responsibilities
over foreign affairs, Congress alone possesses the power to
raise armies, maintain a navy, declare war, and fund for-
eign expeditions. Art. I, §8. Also, Congress enjoys substan-
tial power when it comes to regulating the jurisdiction of
the federal courts—a power it has employed from time to
time to authorize judges to entertain cases and controver-
sies implicating foreign affairs. See, e.g., Judiciary Act of
1789, §9, 1 Stat. 77; Trafficking Victims Protection Reau-
thorization Act of 2003, §4(a)(4)(A), 117 Stat. 2878.
Our case is such a case. In §1782, Congress has expressly
authorized federal courts to order discovery from domestic
persons in aid of foreign proceedings like the ongoing Polish
prosecution. No one suggests that, on its face and in all its
Cite as: 595 U. S. ____ (2022) 11
GORSUCH, J., dissenting
applications, §1782 intrudes on powers vested in the Exec-
utive alone. Normally, too, when Congress endows the Ju-
diciary with the statutory authority to decide a case, we
have a “virtually unflagging” obligation to do just that. Col-
orado River Water Conservation Dist. v. United States, 424
U. S. 800, 817 (1976). In deciding cases lawfully put to us,
courts generally must respect as well the ancient rule that
the public enjoys a right to “every man’s evidence.” 4 J.
Wigmore, Evidence in Trials at Common Law §2192,
p. 2965 (1905). In this country, no one stands above the
law; not even the President may deflect evidentiary inquir-
ies just because they may prove inconvenient or embarrass-
ing. See Trump v. Vance, 591 U. S. ___, ___–___ (2020) (slip
op., at 14–15); Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579, 646 (1952) (Jackson, J., concurring) (“No penance
would ever expiate the sin against free government of hold-
ing that a President can escape control of executive powers
by law through assuming his military role”).
None of this is to suggest that the state secrets privilege
is inconsistent with our separation of powers. Even a stat-
ute that constitutionally allows federal courts to pass on
matters touching on foreign affairs in most cases may, in
some applications, trench on powers the Constitution re-
serves for the Executive. It is simply that the privilege is
no blunderbuss and courts may not flee from the field at its
mere display. Instead, when the Executive seeks to with-
hold every man’s evidence from a judicial proceeding
thanks to the powers it enjoys under Article II, that claim
must be carefully assessed against the competing powers
Articles I and III have vested in Congress and the Judici-
ary. The original design of the Constitution and “our his-
toric commitment to the rule of law” demand no less.
United States v. Nixon, 418 U. S. 683, 708 (1974). 10
——————
10 The majority invokes Department of Navy v. Egan for the proposition
12 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
B
The Constitution’s insistence on this point is clear from
our history. Today, the Executive demands “utmost defer-
ence” to its judgment that Zubaydah’s suit should be dis-
missed. Brief for United States 19 (internal quotation
marks omitted). But over 200 years ago, an attorney for the
United States acting on behalf of President Jefferson pur-
sued a similar line, insisting on the President’s right to
withhold evidence that “might contain state secrets” from
the trial of Aaron Burr. United States v. Burr, 25 F. Cas.
30, 31 (No. 14,692d) (CC Va. 1807). And Chief Justice Mar-
shall expressly refused to afford that kind of latitude.
To be sure, under English law the King could “do no
wrong,” he could not “be named in debate,” and he enjoyed
largely unfettered discretion to withhold evidence from le-
gal proceedings. See id., at 34. But, Chief Justice Marshall
explained, such rules have no place in our Republic given
that “many points of difference . . . exist between the first
magistrate in England and the first magistrate of the
United States.” Ibid. Instead, if the President wishes to
withhold evidence from a lawfully authorized judicial pro-
ceeding he must at least “state the particular reasons” for
his action. United States v. Burr, 25 F. Cas. 187, 192
(No. 14,694) (CC Va. 1807). And while the Judiciary should
pay “all proper respect” to those reasons, as an independent
branch of government it must decide for itself whether to
sustain a claim of privilege in its proceedings, bearing in
mind that it is a “very serious thing” to allow any party to
withhold relevant evidence. Ibid.——————
that we should be “ ‘reluctan[t] to intrude upon the authority of the Ex-
ecutive in military and national security affairs.’ ” Ante, at 8 (quoting
484 U. S. 518, 530 (1988)). But the majority omits an important caveat
found in the same sentence it quotes: “unless Congress specifically has
provided otherwise.” Egan, 484 U. S., at 530. Because Congress has ex-
pressly authorized the Judiciary to entertain this suit, it follows that we
may not reflexively defer to the Executive’s wish to see it dismissed.
Cite as: 595 U. S. ____ (2022) 13
GORSUCH, J., dissenting
Had Chief Justice Marshall envisioned a rule of “utmost
deference” to executive claims of privilege replicating some-
thing like the privilege the English crown enjoyed, it would
have been the simplest thing for him to say so. Instead, the
“clear implication” of his opinions in Burr is that “the Pres-
ident’s special interests may warrant a careful judicial
screening of subpoenas after the President interposes an
objection, but that some subpoenas will nevertheless be
properly sustained by judicial orders of compliance.” Nixon
v. Sirica, 487 F. 2d 700, 710 (CADC 1973). And “the ulti-
mate decision” on such matters “remain[s]” with a court of
law. Ibid.; see also Vance, 591 U. S., at ___ (slip op., at 7). 11
Almost 150 years after Burr, the Court reaffirmed this
same understanding in United States v. Reynolds, 345 U. S.
1 (1953). There, executive officials once more sought some-
thing like “utmost deference” to their claim that evidence
——————
11 JUSTICE THOMAS observes that President Jefferson did not seek to
withhold evidence on state secrets grounds. Ante, at 12. That much is
true. A government attorney invoked the privilege on the President’s
behalf, relying on a “communication from the president.” See Burr, 25
F. Cas., at 191. And Chief Justice Marshall—perhaps wary of ascribing
the attorney’s arguments to the President—expressed some concern on
this score. See id., at 192. But as this Court has recounted, President
Jefferson was anything but ignorant of the proceedings and had raised
privilege concerns in a letter to the attorney. See Vance, 591 U. S., at
___–___ (slip op., at 5–7). Nor, in any event, is it clear what difference
this makes: As JUSTICE THOMAS acknowledges, the Chief Justice dis-
cussed how the state secrets privilege would operate if and when the
President chose to submit “particular reasons” for withholding evidence.
Burr, 25 F. Cas., at 192; see ante, at 12. JUSTICE THOMAS stresses that,
in the course of this discussion, Chief Justice Marshall acknowledged
that the President “may” rather than “must” state his particular reasons
for seeking to withhold evidence. Ante, at 13. But Chief Justice Marshall
nowhere suggested that the state secrets privilege should apply in this
country without such a statement. See Vance, 591 U. S., at ___ (slip op.,
at 7). Nor did he guarantee that producing such a statement would au-
tomatically spell the end of the judicial inquiry, as JUSTICE THOMAS
seems to suppose. See Burr, 25 F. Cas., at 192; Vance, 591 U. S., at ___
(slip op., at 7).
14 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
should be suppressed from judicial proceedings in the name
of national security. Id., at 6. And once more the Court
refused to indulge that view. In England, Kings may have
enjoyed the kind of latitude the government sought. Id., at
7 (citing Duncan v. Cammell, Laird & Co., [1942] A. C. 624).
But under our Constitution, Reynolds emphasized, the Ex-
ecutive may not judge its own case: “Judicial control over
the evidence in a case cannot be abdicated to the caprice of
executive officers.” 345 U. S., at 9–10.
In this particular, our Nation broke from English prac-
tice. The Declaration of Independence did not endorse
crown prerogatives but described many as evils. The Con-
stitution did not create a President in the King’s image but
envisioned an executive regularly checked and balanced by
other authorities. Our Founders knew from hard experi-
ence the “intolerable abuses” that flow from unchecked ex-
ecutive power. Id., at 8; see also Youngstown, 343 U. S., at
641 (Jackson, J., concurring).
Nor is their experience an alien one. More recent history
reveals that executive officials can sometimes be tempted
to misuse claims of national security to shroud major
abuses and even ordinary negligence from public view. In
Korematsu v. United States, the President persuaded this
Court to permit the forced internment of Japanese-
American citizens during World War II. 323 U. S. 214(1944). The President did so in part by relying on a military
report that insisted immediate action was imperative to na-
tional security. Id., at 235–236 (Murphy, J., dissenting).
The report, however, contained information executive offi-
cials knew to be false at the time. Yet it took decades before
the government publicly acknowledged its misrepresenta-
tion to this Court. See Dept. of Justice, Archives, N. Katyal,
Confessions of Error: The Solicitor General’s Mistakes Dur-
ing the Japanese-American Internment Cases (May 20,
2011). And still more years passed before this Court for-
mally repudiated its decision. See Trump v. Hawaii, 585
Cite as: 595 U. S. ____ (2022) 15
GORSUCH, J., dissenting
U. S. ___, ___ (2018) (slip op., at 38).
In Reynolds, a similar story unfolded. There, families of
civilians killed in the crash of an Air Force plane sued the
government for negligence and sought its official accident
report. The government invoked the state secrets privilege
and filed a declaration asking courts to shield the document
from disclosure. In response, this Court refused to afford
the government utmost deference but ultimately allowed it
to withhold the report. The Court did so without even paus-
ing to review the report independently in chambers or ask-
ing a lower court to take up that task. See Reynolds, 345
U. S., at 10–11. Decades later, when the government re-
leased the report, it turned out to contain no state secrets—
only convincing proof of governmental negligence. See J.
Weinstein, The Role of Judges in a Government of, by, and
for the People: Notes for the Fifty-Eighth Cardozo Lecture,
30 Cardozo L. Rev. 1, 92 (2008). So it seems that, in the
very case where this Court stressed the importance of care-
fully examining claims of privilege, families were denied ac-
cess to proof to which they were lawfully entitled only be-
cause this Court accepted the Executive’s declaration at
face value.
More recent history bears its cautions too. The govern-
ment invoked the state secrets privilege only 16 times be-
tween 1961 and 1980. See Brief for Public Citizen as Ami-
cus Curiae 9. Yet it has done so at least 49 times between
2001 and 2021. See id., at 9–10. What is more, the propri-
ety of several of these assertions has been called into ques-
tion. Id., at 10–17 (collecting examples); see also id., at 21–
24 (documenting alleged improper governmental withhold-
ing of information in FOIA cases); W. Weaver & R. Pallitto,
State Secrets and Executive Power, 120 Pol. Sci. Q. 85, 101,
107–112 (2005) (Weaver & Pallitto).
For decades, public servants ranging from Erwin Gris-
wold to Donald Rumsfeld and Porter Goss have complained
about overclassification by the Executive Branch. See, e.g.,
16 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
Brief for Public Citizen as Amicus Curiae 17–19. Officials
who have served in the Executive Branch have estimated
that between 50% and 90% of classified material does not
merit that treatment. Id., at 19–20. In 1996, the federal
government made about 5.8 million classification decisions;
by 2017, that number reached approximately 49 million.
Compare Nat. Archives and Records Admin., Information
Security Oversight Office, 2010 Report to the President 12,
with Nat. Archives and Records Admin., Information Secu-
rity Oversight Office, 2017 Report to the President 1–2. It
seems the government once even classified a memo from
one member of the Joint Chiefs of Staff to another discuss-
ing how too many documents were being classified. Weaver
& Pallitto 87.
It may be understandable that those most responsible for
the Nation’s security will seek to press every tool available
to them to maximum advantage. There has always been
something of a “hydraulic pressure inherent within each of
the separate Branches” to test “the outer limits of its
power.” INS v. Chadha, 462 U. S. 919, 951 (1983). It may
be nothing less than human nature. But when classifica-
tion standards are “so broadly drawn and loosely adminis-
tered,” temptation enough exists for executive officials to
“cover up their own mistakes and even their wrongdoing
under the guise of protecting national security.” K. Mayer,
With the Stroke of a Pen: Executive Orders and Presiden-
tial Power 145 (2001) (internal quotation marks omitted).
This Court hardly needs to add fuel to that fire by abdicat-
ing any pretense of an independent judicial inquiry into the
propriety of a claim of privilege and extending instead “ut-
most deference” to the Executive’s mere assertion of one.
Walking that path would only invite more claims of secrecy
in more doubtful circumstances—and facilitate the loss of
Cite as: 595 U. S. ____ (2022) 17
GORSUCH, J., dissenting
liberty and due process history shows very often follows.12
C
Accepting that independent judgment is required of us in
cases like this one, how exactly should we proceed? If the
government’s “utmost deference” test is not appropriate,
what rules are? Our precedents offer a number of lessons.
First, Reynolds held that, when the Executive seeks to
withhold evidence from a congressionally authorized judi-
cial proceeding, it must show a “reasonable danger” of harm
to national security would follow otherwise. 345 U. S.,
at 10. To be sure, most parties who seek to invoke an evi-
dentiary privilege bear the burden of showing their entitle-
ment to do so by a preponderance of proof. See, e.g., 1 C.
Mueller & T. Kirkpatrick, Federal Evidence §1:32, pp. 213–
214 (4th ed. Supp. 2021). And here the government’s bur-
den is a good deal more forgiving. But I can also see why.
The line Reynolds drew seeks to accommodate the separa-
tion of powers: It ensures that a congressional mandate to
entertain a case or controversy will not be automatically
frustrated. It guarantees a degree of independent judicial
——————
12 In defending the government’s proposed “utmost deference” stand-
ard, JUSTICE THOMAS stresses that the duty to produce every man’s evi-
dence “is not insisted upon” when a privilege applies. Ante, at 11 (inter-
nal quotation marks omitted). He also highlights that §1782 does not
compel individuals to provide evidence when doing so would “violat[e]” a
“legally applicable privilege.” Ibid. (internal quotation marks omitted).
But neither of these truisms answers the question when the state secrets
privilege applies—let alone proves that a court should afford “utmost def-
erence” to the mere assertion of a privilege. The truth is, privileges
against the production of evidence apply “only where necessary to
achieve [their] purpose” given that they have the “effect of withholding
relevant evidence from the fact-finder.” Fisher v. United States, 425 U. S.
391, 403 (1976). And it is a “fundamental maxim” that “any exemptions
which may exist to [the general rule favoring disclosure] are distinctly
exceptional,” and therefore “all privileges of exemption . . . should be rec-
ognized only within the narrowest limits defined by principle.” J. Wig-
more, Evidence §2192, pp. 64, 67 (3d ed. 1940).
18 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
review. Yet it also seeks to respect the Executive’s specially
assigned constitutional responsibilities in the field of for-
eign affairs and the delicate and complex predictive judg-
ments the Executive often must make there.
Second, when assessing a state secrets claim courts
may—and often should—review the evidence supporting
the government’s claim of privilege in camera. Reynolds
said that “[w]hen” the government can show a reasonable
danger of harm exists by means of a declaration, a “court
should not . . . insis[t] upon an examination of the evidence,
even by the judge alone, in chambers.” 345 U. S., at 8, 10.
But at the same time, the Court also stressed that, before
excluding evidence, a judge “must be satisfied” that a rea-
sonable danger of harm would flow from its production—
and that this is a responsibility no court may “abdicat[e].”
Id., at 9–10. From this, it follows that in cases of doubt
more careful scrutiny is required before a court may uphold
a claim of privilege.
It is at this point, too, where the magnitude of a party’s
need for the requested evidence may become relevant.
Reynolds explained that the extent of a party’s need for the
government’s evidence can inform “how far the court should
probe in satisfying itself that the occasion for invoking the
privilege is appropriate.” Id., at 11. But Reynolds did not
create a threshold inquiry requiring a litigant to demon-
strate its need for relevant evidence before the government
must show a reasonable danger of harm would flow from its
production. Today’s majority recognizes this point, explain-
ing that “only after satisfying itself that the Government
has offered a valid reason for invoking the privilege would
a court turn to the issue of necessity.” Ante, at 12 (citing
Reynolds, 345 U. S., at 10–11).
Here again, I see a balance consistent with the Constitu-
tion’s design. A court persuaded that the government has
met its burden by declaration may find the privilege
properly invoked. But a court harboring questions must
Cite as: 595 U. S. ____ (2022) 19
GORSUCH, J., dissenting
probe further and examine the bases for the government’s
assertions in camera. Nor may a court allow the govern-
ment to deny access to every man’s evidence unless and un-
til it establishes its lawful entitlement to do so. This Court
has endorsed a similar procedure for resolving claims of ex-
ecutive privilege in other contexts. See, e.g., Nixon, 418
U. S., at 713–715, and n. 21. Congress has authorized par-
allel procedures in several statutes implicating national se-
curity information. See, e.g., Foreign Intelligence Surveil-
lance Act of 1978, 92 Stat. 1785, as amended, 50 U. S. C.
§1806(f ); Classified Information Procedures Act, 18 U. S. C.
App. §4, p. 414. And courts routinely test claims of entitle-
ment to other ancient and venerable privileges in just this
way. See, e.g., United States v. Zolin, 491 U. S. 554, 556
(1989) (holding that in camera review may be used to probe
crime-fraud challenges to attorney-client privilege); see also
n. 12, supra (observing that privileges generally “should be
recognized only within the narrowest limits defined by [the]
principle[s]” animating them (internal quotation marks
omitted)).
Third, the state secrets privilege protects the government
from the duty to supply certain evidence, but it does not
prevent a litigant from insisting that the government pro-
duce nonprivileged evidence in its possession. Nor does the
privilege preclude a litigant from pursuing its case other-
wise. As our cases explain, the trial simply “goes on” with-
out the government’s privileged proof. General Dynamics
Corp. v. United States, 563 U. S. 478, 485 (2011); see also
Reynolds, 345 U. S., at 11. In this way, the state secrets
privilege again operates like many others—whether self-
incrimination, attorney-client, or spousal—by suspending a
party’s duty to provide privileged evidence but never pro-
hibiting an opponent from seeking nonprivileged evidence
or proving its case using facts obtainable through other
means. See, e.g., Schmerber v. California, 384 U. S. 757,
20 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
761 (1966). In this way, too, it seems to me that the privi-
lege seeks to respect the separation of powers. The Execu-
tive may have a national security interest in keeping cer-
tain evidence to itself. It may have an interest in avoiding
the necessity of having to confirm or deny a fact. But that
executive interest does not extend to quashing suits that
Congress has authorized the Judiciary to entertain—and
that the Judiciary has a “virtually unflagging” duty to re-
solve. Colorado River Water Conservation Dist., 424 U. S.,
at 817.
Admittedly, this Court has held that some contract dis-
putes between spies and the government may be dismissed
at their outset. See Totten v. United States, 92 U. S. 105,
107 (1876); Tenet v. Doe, 544 U. S. 1, 3 (2005). But the
Court has done so only on the ground and to the extent that
allowing these cases to proceed would “ ‘inevitably lead to
the disclosure of ’ state secrets.” General Dynamics, 563
U. S., at 486 (quoting Totten, 92 U. S., at 107). In rare cases
like these, it may simply be impossible to adjudicate a claim
without privileged evidence from the government. Still,
none of that displaces the general rule that the privilege
protects only against the production of certain evidence—
not the inconvenience of lawsuits. If a way exists for a court
to discharge its statutory duty to entertain a case without
the government’s privileged proof, that way must be found.
Dismissal may be an easy out, but it is only rarely the cor-
rect one. Even English courts applying the old crown priv-
ilege sometimes afforded litigants the chance to prove their
cases independently without the benefit of privileged proof.
See, e.g., H. M. S. Bellerophon, 44 LJR 5, 5–9 (Admlty.
1875).
Fourth, after the government properly invokes the privi-
lege, a court may still be able to explore options to make the
government’s evidence available to litigants in some form
as long as it fully respects the government’s national secu-
rity interests. Lower courts have a long history here. They
Cite as: 595 U. S. ____ (2022) 21
GORSUCH, J., dissenting
have used protective orders and other security procedures
to allow sensitive governmental information to be shared—
options Congress has borrowed and endorsed for use in
cases arising under the Foreign Intelligence Surveillance
Act of 1978 and the Classified Information Procedures Act.
50 U. S. C. §1806(f ); 18 U. S. C. App. §§3–4, p. 414. Lower
courts have appointed special masters with security clear-
ances to provide unclassified summaries to litigants who
lack such clearances. See, e.g., In re United States Dept. of
Defense, 848 F. 2d 232, 234 (CADC 1988). Judges have
worked with executive officials to craft nonprivileged sub-
stitute versions of particular pieces of evidence. Cf. In re
Sealed Case, 494 F. 3d 139, 153 (CADC 2007); see also 18
U. S. C. App. §6(c)(1), p. 415. Suppressing evidence from a
congressionally authorized judicial proceeding may not be
an appropriate remedy if valid executive interests can be
fully protected by less intrusive means.
III
The majority does not dispute that the principles set out
in Part II should guide the resolution of any state secrets
dispute. See ante, at 8–9. Instead, the majority insists that
the only disagreement between us concerns “how th[e]se
principles should apply to the specific discovery requests
Zubaydah has made in this litigation.” Ibid. Recall that
the Ninth Circuit permitted discovery on just two things:
(1) the location of the CIA’s detention site, and (2) details
about Zubaydah’s interrogation by the CIA, his treatment,
and his conditions of confinement.
A
Start with the first of these. The Executive seeks to with-
hold evidence about the location of its detention site from a
congressionally authorized judicial proceeding. To do so, it
bears the burden of showing that a “reasonable danger” of
22 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
harm to national security would follow from sharing the in-
formation sought. Reynolds, 345 U. S., at 10. How does the
government seek to discharge that burden in this case?
Zubaydah seeks evidence from Mitchell and Jessen. The
pair have long since stopped working for the government.
Still, the government insists, any evidence they supply
would be widely understood as speaking for the Executive
Branch. Brief for United States 26. (That premise I accept
for argument’s sake.) And, the government continues, if the
pair were asked to confirm or deny the existence of a black
site in Poland, their answer could complicate efforts to se-
cure assistance from foreign governments for future opera-
tions. Id., at 27–28.
Even on its own terms, however, the government’s sub-
mission faces an immediate problem. What was once a se-
cret can, with the passage of time, become old news. See
United States v. Ahmad, 499 F. 2d 851, 855 (CA3 1974).
There may be cases where requiring the government to con-
firm a widely known but not “officially” disclosed fact could
pose a national security risk sufficient to justify withhold-
ing evidence. See ante, at 10–11. Hypothetically, as the
Court explains, demanding the government to admit “the
existence of a CIA site in Country A” could “diminish the
extent to which the intelligence services of Countries A, B,
C, D, etc.” might be willing to cooperate “with our own in-
telligence services in the future.” Ante, at 11. The difficulty
is, the government has not carried its burden of showing
this case falls into that category.
The record before us is stark. Zubaydah’s detention in
Poland took place 20 years ago. The location of the CIA’s
detention site has been acknowledged by the former Polish
President, investigated by the Council of Europe, and
proven “beyond reasonable doubt” to the European Court of
Human Rights. See Part I–B, supra. Doubtless, these dis-
closures may have done damage to national security inter-
ests. But nothing in the record of this case suggests that
Cite as: 595 U. S. ____ (2022) 23
GORSUCH, J., dissenting
requiring the government to acknowledge what the world
already knows to be true would invite a reasonable danger
of additional harm to national security. The government’s
only evidence is a declaration couched in conclusory terms,
which the District Court found unpersuasive. See App. to
Pet. for Cert. 45a, 52a–53a, 59a. It rests on the same sort
of hypothetical the majority posits today—making no effort
to grapple with the particulars of this case.
Even the majority seems uncomfortable with the govern-
ment’s declaration. The best the majority can say is this:
The location of a CIA detention site in Poland qualifies as a
“state secret” because “we have found nothing in the evi-
dentiary record that casts doubt” on the declaration’s con-
clusory assertion that national security harms could follow
from acknowledging its existence. Ante, at 12. But notice
how this effectively reverses the burden of proof. The ma-
jority starts with the government’s conclusory assertion—
and then proceeds to place on Zubaydah the burden of dis-
proving it. A bare expression of national security concern
becomes reason enough to deny the ancient right to every
man’s evidence.
This may be a nice move, but it is unpersuasive. Since
Burr, this Court has held that the Executive must do more
than assert a harm to national security “might” follow from
producing evidence. See Part II–B, supra. Since Reynolds,
this Court has required a “reasonable,” not a speculative,
showing of harm. See Part II–B, supra. If the government
could withhold evidence and even compel the dismissal of
lawsuits based on nothing more than a conclusory assertion
of national security concerns—and if the burden fell on pri-
vate persons to disprove those concerns—it is hard to imag-
ine what case a court could not be forced to close. That kind
of executive prerogative might have once been part of the
law of England; it has never been the law here. See Parts
II–B and II–C, supra.
24 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
Under our law, a court not fully satisfied by the govern-
ment’s showing of harm has a duty to inquire further. See
Part II–C, supra. In this case, I would have thought that
concerns about the conclusory nature of the government’s
declaration would have led the Court at least to remand the
matter to the District Court for in camera review of any ev-
idence the government might wish to present to substanti-
ate its privilege claim. Crediting doubtful representations
has led this Court to embarrassments in the past. See Part
II–B, supra. I would not risk a repeat.
B
Looking past these problems only serves to expose an-
other and maybe more fundamental one. Assume now with
the government that confirming the existence of a detention
site in Poland really does qualify as a state secret. Put aside
that part of the Ninth Circuit’s decision allowing discovery
to proceed on that question. What about the Court of Ap-
peals’ separate holding that Zubaydah is entitled to discov-
ery about his interrogation, treatment, and conditions of
confinement? Recall that Zubaydah’s lawyers have long
maintained that, at a minimum, they should be allowed to
ask about those matters within the date range of December
2002 through September 2003 and without reference to ge-
ography or Polish personnel. See Part I–C, supra. Recall,
too, that even the government has conceded that “the en-
hanced interrogation techniques employed with respect to
specific detainees in the program, and their conditions of
confinement, are no longer classified.” App. to Pet. for Cert.
143a. Normally, a statutorily authorized case must con-
tinue without the government’s privileged proof. See Part
II–C, supra. Why should this case be different and face dis-
missal at its outset?
A plurality of the Court answers with a worry. 13 It fears
——————
13 JUSTICE KAGAN does not join this portion of the principal opinion and
instead appears largely to agree with us in what follows.
Cite as: 595 U. S. ____ (2022) 25
GORSUCH, J., dissenting
that “any response to Zubaydah’s discovery requests would
inevitably tend to confirm or deny whether the CIA oper-
ated a detention site located in Poland.” Ante, at 17. Ap-
parently, the plurality is concerned that, during the course
of their testimony about Zubaydah’s treatment, Mitchell
and Jessen might inadvertently disclose the location of their
activities. See ibid. To ward against this possibility, the
plurality insists, dismissal is the only option.
But that has never been enough to justify an invocation
of the state secrets doctrine to shield evidence, let alone the
dismissal of a lawsuit. No one cites any legal authority—
even under the old crown privilege in England—allowing
the Executive to withhold nonprivileged information and
demand a suit’s dismissal only because executive agents
might accidentally disclose privileged information along the
way. Surely a party’s propensity for error cannot be a point
in its favor.
Nor is that the only thing surprising about the plurality’s
argument. Many familiar judicial tools exist to protect par-
ties from their inadvertent disclosures. In prior detainee
civil litigation, the government attended Mitchell’s and
Jessen’s depositions and instructed them not to answer cer-
tain sensitive questions. See, e.g., Brief for Respondents 7–
8. The District Court could insist on that same procedure
here. As an added precaution, the District Court could con-
duct any depositions in its presence. Alternatively, the
court could enter a protective order preventing the parties
from sharing documents or other information with Polish
authorities or the public until the government has a chance
to review them. Alternatively still, Mitchell and Jessen
could be directed to provide their materials to the District
Court so that the court and the government would have a
chance to review their submissions before they are even
transmitted to Zubaydah’s lawyers. It seems the govern-
ment found advance review procedures like these sufficient
26 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
when it allowed Mitchell to publish a book about his in-
volvement in the CIA’s interrogation program. It is unclear
why they should be insufficient now. See Part I–B, supra.
On top of all that, the District Court might require Mitch-
ell and Jessen to use code names or redact privileged infor-
mation when supplying their evidence. The Senate Report
used these tools, speaking of “Detention Site Blue” in lieu
of “Poland” more than 60 times and redacting certain ma-
terials from its public report, all while recounting in detail
how Mitchell and Jessen tortured other detainees at that
site. See Part I–B, supra. Mitchell and Jessen likewise
used code names to shield foreign country names when they
testified in prior civil litigation and before a military com-
mission at Guantánamo Bay. Indeed, according to an ami-
cus, the government even filed a motion in the military com-
mission proceedings endorsing the practice. See Brief for
Electronic Frontier Foundation as Amicus Curiae 23.
The plurality barely pauses to consider any of these safe-
guards against the government’s potential negligence. It
acknowledges these “techniques have successfully pre-
vented the disclosure of classified information in previous
litigation on related subject matter.” Ante, at 17. But in a
bare ipse dixit, the plurality asserts these same tools “would
not be effective here.” Ibid. In failing to give careful con-
sideration to potential safeguards that would allow this
case to proceed, the plurality defies a central and consistent
teaching of this Court’s state secrets jurisprudence—that
executive claims of privilege in congressionally authorized
proceedings are not to be reflexively accepted, and remedies
short of dismissal must be preferred. See Part II–C, supra.
The plurality confuses appropriate deference to the Execu-
tive’s predictive judgments about foreign affairs with inap-
propriate deference to the Executive’s concerns about its
own mishaps, misstatements, and mistakes. In the process,
the plurality abdicates judicial responsibility to use ordi-
Cite as: 595 U. S. ____ (2022) 27
GORSUCH, J., dissenting
nary tools of litigation management in favor of the Execu-
tive’s wish to brush this case out the door. We do no honor
to the rule of law in acquiescing to that impulse.
C
Unable to explain how the government would be harmed
by allowing this litigation to continue, the plurality seeks
to flip the script. Now, it contends that “much of [the] in-
formation” Zubaydah seeks “is already publicly available
from other sources,” so “further judicial probing of the Gov-
ernment’s privilege claim” is unwarranted. Ante, at 16.
This submission faces its own problems. A litigant’s ne-
cessity for the evidence he seeks may inform how far a court
must go in testing the government’s claim of privilege. But
in all cases the government bears the burden of proving its
entitlement to the privilege. See Part II–C, supra. And it
has not carried that burden here. The government worries
about confirming the location of its detention site, but it has
not shown how doing so would harm national security in
light of how well documented that fact already is. Worse,
the government has not even shown how this lawsuit would
require it to confirm the location of its detention site. We
do not have in this case a question about how far to probe
the government’s privilege claim; we have not probed that
claim at all. We have replaced independent inquiry with a
rubber stamp.
Troubling, too, the plurality’s argument rests on facts of
its own surmise. Yes, a great deal of public information ex-
ists about Zubaydah’s treatment during other periods. And
maybe the location of his detention site is known to the
world. But Zubaydah’s lawyers tell us that the public rec-
ord contains no comparable information about what hap-
pened “inside [his] cell” from December 2002 until Septem-
ber 2003. See Tr. of Oral Arg. 41. That, they say, is the
primary reason this lawsuit exists. See Part I–C, supra.
The government does not seriously dispute the comparative
28 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
lack of public evidence about Zubaydah’s treatment during
the relevant period—and it is unclear why the plurality
pursues the point on the government’s behalf. As recently
as 2015, the government rejected a diplomatic request by
Polish prosecutors seeking information about Zubaydah’s
treatment. Letter from B. Fletcher, Acting Solicitor Gen-
eral, to S. Harris, Clerk of Court 1, 3 (Oct. 15, 2021) (Gov-
ernment Letter).
Rather than face these problems, the plurality attempts
a way around them. Perhaps Zubaydah does not yet have
the information he needs. But, the plurality replies, we re-
cently received a letter from the government. In it, the gov-
ernment says it will now allow Zubaydah to mail a docu-
ment from Guantánamo Bay to Polish prosecutors detailing
his treatment during the relevant period. So at least in this
way, the plurality reasons, Zubaydah’s need for evidence
from Mitchell and Jessen “may” become “diminished” in the
future. Ante, at 16.
It is easy enough to see why the plurality hedges here.
Not only has the government already once refused a request
from Polish authorities asking for information about
Zubaydah’s treatment. The government’s apparent change
of heart came only after argument in this case, in response
to questions from the bench. And a closer look at the gov-
ernment’s offer unmasks its emptiness. No one seems con-
fident that Zubaydah remains mentally competent to tes-
tify about his treatment decades ago. 14 Pointedly, too, the
government states in its letter that it reserves the right to
subject whatever he produces “to a security review”—all
without indicating what standards it will apply in that “re-
view.” Government Letter 3. In the end, then, the govern-
ment’s offer seems little more than an offer to let Zubaydah
——————
14 Zubaydah’s lawyers represent that they do not know “whether and
to what extent, after years of torture and solitary confinement, he can
still reliably reconstruct this history.” Letter from D. Klein, Counsel for
Respondent Abu Zubaydah, to S. Harris, Clerk of Court 2 (Oct. 25, 2021).
Cite as: 595 U. S. ____ (2022) 29
GORSUCH, J., dissenting
say whatever the government chooses to allow him to say.
Then there is this. In response to the government’s letter,
Zubaydah’s lawyers have lodged their own. In it, as they
have before, they offer a middle way. At the very least,
Zubaydah’s lawyers ask this Court to hold off dismissing
this case until we know whether and to what extent the
government will make good on its late-blooming promise.
Letter from D. Klein, Counsel for Respondent Abu
Zubaydah, to S. Harris, Clerk of Court 2 (Oct. 25, 2021). Yet
rather than remand this case to allow the District Court to
supervise that process, the plurality refuses even this pal-
try accommodation. It does so without as much as the cour-
tesy of an explanation.
D
Ultimately, the plurality is forced to give ground. While
it insists that “any” response to Zubaydah’s current re-
quests “would inevitably tend to confirm or deny whether
the CIA operated a detention site located in Poland,” it goes
out of its way to note that “a different discovery request
filed by Zubaydah might avoid the problems” the plurality
believes exist here. Ante, at 17. In other words, it seems
that Zubaydah remains free to file a new lawsuit seeking
information about his interrogation, treatment, and condi-
tions of confinement as long as he does not ask for location
information where his “need is not great.” Id., at 15, 17.
But what is the point of forcing Zubaydah to file a new
lawsuit? Location information is only part of what the
Court of Appeals permitted and Zubaydah seeks. Sepa-
rately, the Court of Appeals allowed Zubaydah’s lawyers to
inquire about his interrogation, treatment, and conditions
of confinement. And throughout this litigation, Zubaydah’s
lawyers have indicated a willingness to employ any number
of tools to disaggregate that evidence from information that
might reveal the site’s location or the involvement of foreign
30 UNITED STATES v. ZUBAYDAH
GORSUCH, J., dissenting
nationals. As they put it before the District Court, “[v]alu-
able discovery may proceed without requiring [Mitchell and
Jessen] to confirm either the location of any particular site,
or the cooperation of any particular government.” App. to
Pet. for Cert. 42a. As the District Court acknowledged, too,
courts possess substantial authority to “modify or limit the
scope” of any party’s discovery requests. Id., at 55a. It is
unfathomable why this Court should ignore that option in
this case and insist on a new one. At worst, the delay may
effectively deny Zubaydah congressionally authorized dis-
covery into admittedly nonprivileged information. At best,
it will prove a pointless formality.
*
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 discov-
ery 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.