Zayn Al-Abidin Husayn v. United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZAYN AL-ABIDIN MUHAMMAD No. 18-35218
HUSAYN; JOSEPH MARGULIES,
Petitioners-Appellants, D.C. No.
2:17-cv-00171-
v. JLQ
JAMES ELMER MITCHELL; JOHN
JESSEN, ORDER
Respondents,
UNITED STATES OF AMERICA,
Intervenor-Appellee.
Filed July 20, 2020
Before: Ronald M. Gould and Richard A. Paez, Circuit
Judges, and Dean D. Pregerson, * District Judge.
Order;
Concurrence by Judge Paez;
Dissent by Judge Bress
*
The Honorable Dean D. Pregerson, United States District Judge
for the Central District of California, sitting by designation.
2 HUSAYN V. UNITED STATES
SUMMARY **
State Secrets Privilege / Subpoena
The panel denied a petition for rehearing en banc on
behalf of the court.
In its opinion, filed September 18, 2019, the panel
majority reversed the district court’s order quashing a
subpoena sought by Abu Zubaydah, who is currently held at
the U.S. detention facility in the Guantanamo Bay Naval
Base in Cuba, and his attorney, and dismissing the case in its
entirety. The panel agreed with the district court that certain
information requested was not privileged because it was not
a state secret that would pose an exceptionally grave risk to
national security. The panel agreed that the government’s
assertion of the state secrets privilege was valid over much
of the information requested. The panel concluded,
however, that the district court erred in quashing the
subpoenas in toto rather than attempting to disentangle
nonprivileged from privileged information. The panel
remanded for further proceedings.
Judge Gould dissented and would affirm the district
court. He would defer to the view of then-CIA Director and
current Secretary of State Michael Pompeo that the
disclosure of secret information in this proceeding
“reasonably could be expected to cause serious, and in many
instances, exceptionally grave damage to U.S. national
security.”
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HUSAYN V. UNITED STATES 3
Concurring in the denial of rehearing en banc, Judge
Paez wrote to explain why rehearing was not warranted. He
wrote that the majority opinion stood solely for the narrow
and well-settled proposition that before a court dismissed a
case on state secret grounds, it must follow the three-step
framework set forth in United States v. Reynolds, 345 U.S. 1(1953). Judge Paez wrote that rather than let the matter
proceed on remand before the district court, the dissenting
opinion from the denial of rehearing en banc sought to
eliminate the required analysis, without providing any
factual or legal basis for doing so. Judge Paez wrote further
that the dissent mischaracterized the district court
proceedings and the majority opinion’s holding, and
disregarded the law of the circuit. He concluded that en banc
review was inappropriate.
Dissenting from the denial of rehearing en banc, Judge
Bress stated that he believed the majority’s decision was
premised on grave legal errors, conflicted with governing
precedent, and posed a serious risk to national security.
Judge Bress wrote that the majority opinion erred because:
it treated information that was core state secrets materials as
fair game in discovery; it vitiated the state secrets privilege
because of information that was supposedly in the public
domain; it failed to give deference to the CIA Director on
matters uniquely within his national security expertise; and
it discounted the government’s valid national security
concerns because the discovery was only sought against
government contractors.
4 HUSAYN V. UNITED STATES
COUNSEL
David F. Klein (argued) and John Chamberlain, Pillsbury
Winthrop Shaw Pittman LLP, Washington, D.C.; Jerry
Moberg, Jerry Moberg & Associates, Ephrata, Washington;
for Petitioners-Appellants.
H. Thomas Byron III (argued) and Sharon Swingle,
Appellate Staff; William D. Hyslop, United States Attorney;
Joseph H. Hunt, Assistant Attorney General; Civil Division,
United States Department of Justice, Washington, D.C.; for
Intervenor-Appellee.
ORDER
The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
the votes of the non-recused active judges in favor of en banc
consideration. 1 Fed R. App. P. 35. The petition for
rehearing en banc is denied.
Attached are a concurrence to and dissent from the denial
of rehearing en banc.
1
Judges Miller and Collins did not participate in the deliberations
or vote in this case.
HUSAYN V. UNITED STATES 5
PAEZ, Circuit Judge, joined by FLETCHER and BERZON,
Circuit Judges, concurring in the denial of rehearing en banc:
I concur in the decision not to rehear this case en banc
and write to emphasize why rehearing was not warranted.
I.
I begin with what the majority opinion does not do. It
does not require the government to disclose information, and
it certainly does not require the disclosure of state secrets.
See Husayn v. Mitchell, 938 F.3d 1123, 1137–38 (9th Cir.
2019). It does not compel the government to confirm or even
acknowledge any alleged malfeasance abroad. See id. at
1133, 1135 n.18. And, critically, it does not direct the
district court to compel discovery on remand if the court
determines that nonprivileged materials cannot be
disentangled from privileged materials. See id. at 1137–38.
Instead, the majority opinion stands solely for the narrow
and well-settled proposition that before a court dismisses a
case on state secret grounds, it must follow the three-step
framework set forth in Reynolds—a procedure we have
followed for decades and reaffirmed as recently as 2010. See
Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1080
(9th Cir. 2010) (en banc); see also Husayn, 938 F.3d
at 1136–37. The district court never conducted the third step
of that process, which requires a court to determine whether
the contested materials contain nonprivileged information
and, if so, whether there is any feasible way to segregate the
nonprivileged information from the privileged information.
Mohamed, 614 F.3d at 1082. Only after exhausting this
effort can a district court contemplate dismissal. Id. The
district court, however, never undertook that process. It
instead dismissed Petitioners’ discovery application
outright, without ever “us[ing] its fact-finding or other tools
6 HUSAYN V. UNITED STATES
to full advantage before . . . conclud[ing] that [this] rare step
. . . [was] justified.” Id. at 1093. We thus remanded with a
simple instruction: use the panoply of tools at the court’s
disposal to identify nonprivileged information and
determine whether that information can be disclosed without
risking national security, as our precedent requires. Husayn,
938 F.3d at 1137–38.
It may be that, on remand, the district court will
ultimately reach the same result and determine that the
government’s motion to quash should be granted and that the
proceeding must end. But rather than let the matter proceed
as it should under our precedent, Judge Bress’s dissent seeks
to eliminate the required analysis, without providing any
factual or legal basis for doing so. The dissent
mischaracterizes the district court proceedings and the
majority opinion’s holding. It also disregards the law of this
circuit. For those reasons, en banc review is inappropriate.
II.
This matter began with Petitioners’ application for
discovery under 28 U.S.C. § 1782, which authorizes district
courts to assist litigants in foreign tribunals in obtaining
discovery. 1 The district court applied the relevant factors
under Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.
241, 244–45 (2004), 2 considered the government’s
1
Because the majority opinion lays out the relevant facts and
procedures, there is no need to repeat them in full here.
2
A court considering whether to grant a § 1782 request may
consider “the nature of the foreign tribunal”; “the character of the
proceedings underway abroad and the receptivity of the foreign
government to U.S. federal-court assistance”; “the receptivity of the
foreign government, court, or agency to federal-court judicial
HUSAYN V. UNITED STATES 7
opposition to Petitioners’ application, and granted the
application for discovery. The government did not appeal
the district court’s § 1782 ruling.
The government later moved to quash the resulting
subpoenas for depositions and documents. It first argued the
district court lacked jurisdiction under 28 U.S.C.
§ 2241(e)(2), which deprives courts of jurisdiction over
actions against the “United States or its agents” for the
confinement of alien enemy combatants. 28 U.S.C.
§ 2241(e)(2); see also Hamad v. Gates, 732 F.3d 990, 995
(9th Cir. 2013). The district court rejected that argument,
concluding that there was no evidence of an agency
relationship between the government and James Elmer
Mitchell and John Jessen. The government did not appeal
this determination.
The government also argued that the information was
privileged as a state secret under Reynolds. The district court
ostensibly applied the Reynolds framework, which sets forth
a three-step inquiry to analyze claims of state secrets
privilege. At the second step, the court concluded that some,
but not all, of the information sought by Petitioners was
privileged. Although our caselaw requires that non-sensitive
information be disentangled from privileged material and
disclosed “whenever possible,” Mohamed, 614 F.3d at 1082,
the district court did not follow this precedent, and it did not
make any attempt to disentangle the non-sensitive
information. Instead, the court quashed the subpoenas and
dismissed the petition in its entirety without conducting the
assistance”; “whether the . . . request conceals an attempt to circumvent
foreign proof-gathering limits or other policies of a foreign country or
the United States”; and whether the request is “unduly intrusive or
burdensome.” Intel Corp., 542 U.S. at 264–65.
8 HUSAYN V. UNITED STATES
required analysis, speculating that any nonprivileged
information “would not seem to aid the [foreign]
investigation.”
III.
As stated above, the majority opinion does not require
the disclosure of information. It does not require the court
to reach any specific conclusion about whether dismissal is
warranted. It simply reemphasizes our requirement to
conduct a proper, three-step Reynolds analysis in the first
instance. The district court has not yet done so, having
dismissed the entire matter without using any discovery tools
at its disposal. Our decision in Mohamed is clear: “[I]t is the
district court’s role to use its fact-finding and other tools to
full advantage before it concludes that the rare step of
dismissal is justified.” 614 F.3d at 1092–93. Accordingly,
the majority opinion instructs the district court to “employ[]”
those tools to “tailor[] the scope of Mitchell’s and Jessen’s
deposition and the documents they may be required to
produce.” Husayn, 938 F.3d at 1137. The majority opinion
recognized that, even after doing so, the district court may
still determine dismissal is appropriate: “[I]f, upon
reviewing disputed discovery and meaningfully engaging
the panoply of tools at its disposal, the district court
determines that it is not possible to disentangle the privileged
from nonprivileged, it may again conclude that dismissal is
appropriate at step three of the Reynolds analysis.” Id.
IV.
Judge Bress’s dissent appears to raise three distinct
arguments: (1) the majority opinion erred in holding that
Abu Zubaydah’s detention at a CIA black site in Poland is
not a state secret, despite widespread acknowledgment of
this fact; (2) the majority opinion did not sufficiently defer
HUSAYN V. UNITED STATES 9
to former CIA Director Michael Pompeo’s assertion that any
disclosures sought by Petitioners pose national security
risks, even though a court has never independently reviewed
the disclosures to confirm this representation; and (3) our
instruction to attempt to disentangle privileged and
nonprivileged information is an “impossible task” for district
courts to undertake, even though our precedent requires it,
and even though we did so in Mohamed.
To begin, the dissent characterizes the majority as
disregarding the danger certain information poses to national
security. The majority opinion does no such thing, and this
argument is a red herring. The majority opinion
acknowledges that some facts can be embarrassing to the
government. 938 F.3d at 1134. The purpose of the state
secrets privilege, however, is not to insulate the government
from criticism: the fundamental threshold question is
whether certain facts are secrets. Only then can the privilege
possibly apply. 3
The dissent’s haphazard citations to Mohamed do not
support the argument that the facts the Petitioners are
seeking to discover, despite being public knowledge, are
sufficiently “secret” to warrant application of the privilege.
Dissent at 29–31. Indeed, in Mohamed, the en banc court,
after “thoroughly and critically review[ing] the
government’s public and classified declarations,” concluded
“that at least some of the matters” that the government
sought to protect were privileged, 614 F.3d at 1086, but
publicly available information was not, id. at 1090. The
dissent’s citations to Mohamed are drawn not from the
3
Besides, “[s]imply . . . invoking an ethereal fear that disclosure will
threaten our nation is insufficient to support the privilege.” Al-Haramain
Islamic Found. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007).
10 HUSAYN V. UNITED STATES
court’s Step 2 discussion of whether any of the information
sought was subject to the state secrets privilege, but rather
from the discussion of Step 3 of the Reynolds analysis, i.e.,
whether the case could proceed without implicating
privileged material. See Dissent at 29–31 (citing Mohamed,
614 F.3d at 1089–90). Mohamed recognized that even
though publicly available information was not privileged,
any effort to defend against the plaintiffs’ case “would
unjustifiably risk disclosure of state secrets.” 614 F.3d
at 1090. This is the precise analysis that has never been
conducted by any court in this case—the analysis that the
majority opinion instructed the district court to conduct on
remand. 4
More troubling is the dissent’s seemingly willful
blindness to established facts. Given the overwhelming,
publicly available evidence that Abu Zubaydah was detained
at a black site in Poland, it is difficult to take seriously the
suggestion that media outlets are untrustworthy and that the
standards applied by other judicial bodies are inadequate.
Good grief, the President of Poland publicly acknowledged
in 2012 that, during his presidency, Abu Zubaydah was
detained in Poland by the CIA. 5 As the majority opinion
4
Mohamed’s “observation” that certain undisclosed details about a
publicly known project may themselves qualify as secrets is not
controversial, and it certainly does not stand for the proposition that any
as-yet undisclosed information is privileged as a matter of course. See
614 F.3d at 1089–90.
5
See, e.g., Case of Husayn (Abu Zubaydah) v. Poland, Section
VI(D)(3), European Ct. of Human Rights (Feb. 16, 2015) (“Of course,
everything took place with my knowledge. The President and the Prime
Minister agreed to the intelligence co-operation with the Americans,
because this was what was required by national interest.”), available at:
https://tinyurl.com/ybs7wane; “The hidden history of the CIA’s prison
HUSAYN V. UNITED STATES 11
recognizes, to be “a ‘state secret,’ a fact must first be a
secret.” Husayn, 938 F.3d at 1133. Although it is not the
court’s role to compel the government to recognize these
facts officially, it need not stand in thrall, in blithe disregard
of the record and what the rest of the world has already
acknowledged. The majority opinion does not require the
government to take an official position on anything and
agrees with the government’s assertion of state secrets over
other sensitive categories of information. Id. (“Nothing in
this opinion should be read to suggest [that the government
has taken any official position on the existence or location of
such a facility].”); id. at 1135 n.18 (“[N]othing about the
government’s participation in this case would constitute
official acknowledgment, implicit or otherwise.”); id.
at 1134 (listing categories of privileged information).
The dissent nonetheless takes up the government’s
belatedly raised argument, never presented to the panel, that
any participation by Mitchell and Jessen would be
tantamount to an official acknowledgment of certain facts.
As an initial matter, the government’s argument, to the
extent it is grounded in an agency relationship, was
presented to, and rejected by, the district court. Again, the
government did not appeal that determination.
In any event, the dissent reads the majority opinion’s
treatment of Mitchell and Jessen as contractors far too
broadly. The dissent asserts that no court “has held the state
secrets privilege is removed or diminished when the
discovery is directed to a government contractor,” and warns
in Poland,” WASHINGTON POST (Jan. 23, 2014), available at:
https://tinyurl.com/ybowwp8p; “Inside the CIA’s Secret Polish Torture
Site,” THE ATLANTIC (Jan. 24, 2014), available at:
https://tinyurl.com/y98n7x86.
12 HUSAYN V. UNITED STATES
that a “contrary rule” would free litigants from the
constraints of the privilege against the disclosure of state
secrets. Dissent at 32. The majority opinion does not say
otherwise. It does not hold or suggest that the nature of a
secret is lessened if transmitted to or by a contractor. It states
only that the government failed to explain why discovery by
Mitchell or Jessen would amount to an official confirmation.
Husayn, 938 F.3d at 1133. Most importantly, the
government can still argue on remand that it should not
disclose any information from Mitchell and Jessen that
would amount to an official confirmation.
And, contrary to the dissent’s assertion, Mohamed did
not “[hold] that the state secrets privilege applied in a suit
against a government contractor because the contractor
could ‘reveal[] information about how the United States
government does or does not conduct covert operations.’”
Dissent at 32 (quoting Mohamed, 614 F.3d at 1089)
(emphasis added). Rather, we discussed the potential effects
of a contractor’s testimony in the context of Reynolds Step
3—not Step 2. See Mohamed, 614 F.3d at 1089. Our
discussion had nothing to do with whether the privilege
applied to the contractor’s statements at Step 2, let alone
whether the contractor’s statements could be imputed to the
government.
Notably absent from the government’s petition for
rehearing en banc and the dissent is any mention of the Salim
litigation, 6 in which the same respondents, Mitchell and
Jessen, disclosed similar information to that sought here,
with the government’s full participation in the discovery
process. In fact, in that litigation, eight U.S. government
attorneys or experts were present at the depositions of
6
Salim v. Mitchell, No. 2:15-cv-286-JLQ (E.D. Wash. 2016).
HUSAYN V. UNITED STATES 13
Mitchell and Jessen to ensure that nothing confidential or
privileged would be disclosed. Husayn, 938 F.3d at 1137
n.23. As the majority opinion recognizes, the fact that
Mitchell and Jessen have provided nonprivileged
information like that sought here illustrates that
disentanglement is viable. Id. at 1137.
Last, a word about deference. Rather than focus on “our
obligation to review the [government’s claims] with a very
careful, indeed a skeptical, eye,” see Mohamed, 614 F.3d
at 1082, the dissent urges we owe “some level of deference,”
Dissent at 27. As an initial matter, the majority opinion did
give “some deference” to the government and did not dispute
that official acknowledgment of certain facts might harm
national security. The dissent, however, asks for a level of
deference that is nothing short of unquestioning. The mere
existence of information, absent any indication that it has
been recognized by the United States government, is not an
acknowledgment by the United States of anything. The
majority opinion is clear on this point. Husayn, 938 F.3d
at 1133.
The dissent urges deference not only to the government’s
assertion that official acknowledgment would be harmful,
but also to the government’s expansive definition of “official
acknowledgment” itself. Indeed, the government takes the
argument a step further, contending that Mitchell’s and
Jessen’s actual relationship to the government is irrelevant
because foreign governments might perceive their
participation as official U.S. acknowledgment of the facts to
which Mitchell and Jessen testify. Gov’t Pet. for Reh’g En
Banc at 12. This contention lays bare the philosophy
underpinning the position advocated by the government and
the dissent. It does not matter whether Mitchell and Jessen
speak for the government, or indeed whether the government
14 HUSAYN V. UNITED STATES
“officially” acknowledges anything. All that matters is that
the government says it matters. Under the dissent’s
approach, courts are left with nothing to do but accept the
government’s assertions at face value. Such an approach,
besides contradicting Supreme Court precedent, is
antithetical to democratic governance and will inevitably
breed abuse and misconduct.
Although the majority opinion holds only that the district
court failed to conduct a proper Reynolds Step 3 analysis, the
dissent does not discuss Step 3 until page 33. The dissent
asserts that it would be an “impossible task” to disentangle
classified information from nonprivileged material, and that
dismissal is therefore appropriate. Dissent at 35. But we
have conducted this analysis often, without difficulty. See,
e.g., Kasza v. Browner, 133 F.3d 1159, 1166, 1170 (9th Cir.
1998); Mohamed, 614 F.3d at 1095; Al-Haramain, 507 F.3d
at 1203. Unlike the en banc court in Mohamed, where we
reviewed the contested material and then determined that
disentanglement was not feasible, see 614 F.3d at 1087–89,
the district court has yet to undertake this full Step 3 analysis.
The district court, without using a single tool at its disposal,
such as in camera review, protective orders, or restrictions
on testimony, summarily determined that any nonprivileged
information that might be disclosed could not be
disentangled from privileged information and therefore
dismissed the discovery application. 7
For similar reasons, the dissent’s references to other
cases we have decided are simply inapt in this context. As
7
As discussed above, the district court also inserted a “usefulness”
requirement of its own design into the Reynolds Step 3 analysis and
dismissed the entire matter because any non-privileged information
“would not seem to aid the Polish investigation.”
HUSAYN V. UNITED STATES 15
the majority opinion explains, those cases determined that
nonprivileged information was enmeshed in a “classified
mosaic,” but only after reviewing specific, contested
material and considering the role of that material in drawn-
out litigation. Husayn, 938 F.3d at 1135 n.19 (citing Kasza,
133 F.3d at 1166; Mohamed, 614 F.3d at 1095; Al-
Haramain, 507 F.3d at 1203). Here, however, the court is
presented with a pure discovery matter—unencumbered by
the “inherently complex and unpredictable” nature of typical
adversarial litigation. See Mohamed, 614 F.3d at 1089.
More importantly, however, and as discussed above, no
material has yet been disclosed, let alone reviewed. 8
8
The dissent insists that “[in camera] review is not necessary to
enforce the privilege,” but this point is irrelevant for two reasons.
Dissent at 36. First, Reynolds did not prohibit in camera review
altogether. See 345 U.S. at 10 (refusing only to impose an “automatic[]”
disclosure requirement under certain circumstances). Other courts,
including ones cited by the dissent, recognize that in camera review may
not only be appropriate but required. Doe v. CIA, 576 F.3d 95, 105 (2d
Cir. 2009) (“Sometimes, however, review may require examination of
the classified material itself.”); Sterling v. Tenet, 416 F.3d 338, 345 (4th
Cir. 2005) (“There may of course be cases where the necessity for
evidence is sufficiently strong and the danger to national security
sufficiently unclear that in camera review of all materials is required to
evaluate the claim of privilege.”). In any event, these limitations on in
camera review, if they exist, come at Reynolds Step 2—not Step 3. See
Reynolds, 345 U.S. at 10 (“Yet we will not go so far as to say that the
court may automatically require a complete disclosure to the judge
before the claim of privilege will be accepted in any case.”) (emphasis
added); Doe, 576 F.3d at 104–05; Sterling, 416 F.3d at 344. Here, the
majority opinion agreed with the district court’s assessment that at least
some of the information Petitioners sought was not a state secret.
Husayn, 938 F.3d at 1134. Thus, we simply reminded the district court
that, during its attempt at disentanglement, it could use many tools at its
disposal, including in camera review, to conduct a full Reynolds Step 3
analysis. Id. at 1137–38.
16 HUSAYN V. UNITED STATES
Finally, the majority anticipates that in some
circumstances it may indeed be impossible to disentangle
nonprivileged information from privileged material. The
opinion states that the district court may, after fulfilling its
role in the discovery process, so conclude. But the
possibility that disentanglement will not be feasible does not
justify the failure to make the attempt. Our precedent
requires the district court to make every effort at
disentanglement. Mohamed, 614 F.3d at 1082.
The dissent concludes with an entreaty to overhaul
seventy years of precedent and kneecap Reynolds to limit its
application in section 1782 proceedings. Dissent at 35–37.
This proposal, which not even the government advocates, is
not only extreme; it is unnecessary. The overwrought
concerns about abuse by foreign litigants are addressed by
section 1782 and the Intel factors. See Intel, 542 U.S. at 265(“[A] district court could consider whether the § 1782(a)
request conceals an attempt to circumvent foreign proof-
gathering restrictions or other policies of a foreign country
or the United States. Also, unduly intrusive or burdensome
requests may be rejected or trimmed.”). It appears the
dissent’s true problem is not with Reynolds, but with the
district court’s initial decision to grant Petitioners’ section
1782 application. The government appears to share that
distaste. It could have appealed, but it did not. En banc
proceedings would not have been the appropriate remedy for
that error.
For these reasons, I concur in the court’s decision to deny
rehearing this case en banc.
HUSAYN V. UNITED STATES 17
BRESS, Circuit Judge, joined by GOULD, CALLAHAN,
M. SMITH, IKUTA, BENNETT, R. NELSON, BADE,
LEE, HUNSAKER, BUMATAY, and VANDYKE, Circuit
Judges, dissenting from the denial of rehearing en banc:
Over formal objections from the Director of the CIA, a
divided panel in this case rejected the United States’
assertion of the state secrets privilege, potentially allowing
discovery into the CIA’s overseas interrogation of a
suspected terrorist. The panel issued this ruling in the
context of a discovery application under 28 U.S.C. § 1782,
enabling any resulting documents and testimony to be used
in a foreign tribunal—here, a quasi-criminal proceeding in
Poland over which we lack any visibility and whose entire
purpose is to expose U.S.-led counterintelligence operations
conducted abroad.
The majority’s decision is premised on grave legal
errors, conflicts with governing precedent, and poses a
serious risk to our national security. I therefore respectfully
dissent from our decision not to hear this important case en
banc.
I
A
Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”)
is a suspected Al Qaeda-associated terrorist. See Ali v.
Obama, 736 F.3d 542, 543 (D.C. Cir. 2013) (Kavanaugh, J.).
He was captured in Pakistan in 2002 and detained by the CIA
as part of its former detention and interrogation program;
since 2006, the Department of Defense has held him at
Guantanamo Bay. Prior to his transfer there, Abu Zubaydah
claims he was tortured at a CIA “black site,” which he
alleges was located in Poland.
18 HUSAYN V. UNITED STATES
In 2013, Abu Zubaydah’s attorneys filed an application
in the European Court of Human Rights (“ECHR”), alleging
that Polish officials had been complicit in his unlawful
detention and mistreatment. See Husayn (Abu Zubaydah) v.
Poland, App. No. 7511/13, Eur. Ct. H.R. (2015). The Polish
government declined to confirm or deny these claims but
informed the ECHR that it had previously opened an
investigation in 2008 into allegations that Polish officials
had cooperated with the CIA. Id. ¶¶ 125–35, 370–71. As
part of that investigation, Poland had requested information
from the United States under a mutual legal assistance treaty
(“MLAT”) between the two countries. Id. ¶ 132. Citing
reasons of national security, the United States repeatedly
refused to provide information on the CIA’s operations. Id.
¶¶ 132, 143.
Based in part on the negative inferences it drew from
Poland’s refusal to confirm or deny CIA operations within
its borders, the ECHR determined that the CIA had tortured
Abu Zubaydah with the complicity of the Polish
government. Id. ¶¶ 370–71, 395–96, 414–15, 431–35. As a
result, Poland renewed its inquiry, which Abu Zubaydah
represents is a “Polish criminal investigation” that “is
charged with examining whether Polish officials violated
domestic law by opening, operating, and conspiring with the
United States to detain and mistreat prisoners, including Abu
Zubaydah,” at a U.S.-run CIA facility in Poland. To aid its
investigation, Poland again requested assistance under its
MLAT with the United States. The United States again
refused to surrender details concerning the CIA’s
activities—even after discussions between high-level
officials from both governments. The Polish prosecutor’s
office then turned to Abu Zubaydah’s counsel to identify
alternative ways to obtain the information, in this case
through United States courts.
HUSAYN V. UNITED STATES 19
In May 2017, Abu Zubaydah and his attorney filed an
application in federal district court under 28 U.S.C. § 1782,
seeking discovery related to the CIA’s covert activities in
Poland. Section 1782 permits a district court to order
discovery “for use in a proceeding in a foreign or
international tribunal, including criminal investigations.”
28 U.S.C. § 1782(a). Abu Zubaydah’s application sought
documents and testimony from Dr. James Elmer Mitchell
and Dr. John “Bruce” Jessen, two former CIA contractors
who “proposed and developed” the CIA’s enhanced
interrogation techniques, “supervise[d]” Abu Zubaydah’s
interrogations, and were “involve[d] in” his alleged torture.
Husayn v. Mitchell, 938 F.3d 1123, 1127 (9th Cir. 2019).
Abu Zubaydah’s § 1782 application was expansive,
seeking a broad range of information relating to “the crimes
committed against Abu Zubaydah on Polish soil,” the
involvement of Polish and United States officials in his
detainment, and details about the CIA black site where the
alleged interrogation and torture occurred. Abu Zubaydah
represented that given their “central role in the interrogation
program and their presence at the Polish black site,” Mitchell
and Jessen could also provide information on “the identities
of other witnesses to the crimes against Abu Zubaydah” and
“agreements between Polish and U.S. officials.” According
to Abu Zubaydah’s application, all this information would
be used to “aid the Polish prosecutors in their understanding
of Polish civilian and governmental complicity in the
operation.”
After the district court initially granted Abu Zubaydah’s
application, the United States moved to intervene and quash
the subpoenas. In its motion to quash, the United States
formally invoked the state secrets privilege and supported its
assertion with two declarations from then-CIA Director and
20 HUSAYN V. UNITED STATES
now Secretary of State Michael Pompeo. Director Pompeo’s
declarations outlined seven categories of information over
which the United States asserted the privilege:
[1] Information that could identify
individuals involved in the program;
[2] Information regarding foreign
government cooperation with the CIA;
[3] Information pertaining to the operation or
location of any clandestine overseas CIA
station, base, or detention facility;
[4] Information regarding the capture and/or
transfer of detainees;
[5] Intelligence information about detainees
and terrorist organizations, to include
intelligence obtained or discussed in
debriefing or interrogation sessions;
[6] Information concerning CIA intelligence
sources and methods, as well as specific
intelligence operations; and,
[7] Information concerning the CIA’s
internal structure and administration.
As the CIA Director explained, Abu Zubaydah’s requested
discovery “would tend to confirm or deny whether or not
[Mitchell and Jessen] have information about these
categories as they pertain to whether or not the CIA
conducted detention and interrogation operations in Poland
and/or with the assistance of the Polish Government.”
HUSAYN V. UNITED STATES 21
The Director warned that disclosure of this information
“reasonably could be expected to cause serious, and in many
instances, exceptionally grave damage to U.S. national
security.” He explained that maintaining the confidentiality
of foreign partnerships is critical, for “if the CIA appears
unable or unwilling to keep its clandestine liaison
relationships secret, relationships with other foreign
intelligence or security services could be jeopardized.”
Pompeo also explained that whether some alleged
information about the requested topics was already in the
public domain was of no moment. “The absence of official
confirmation from the CIA leaves an important element of
doubt about the veracity of the information.” That provided
“an additional layer of confidentiality” that “would be lost
. . . if the CIA were forced to confirm or deny the accuracy
of speculation or unofficial disclosures.”
The district court granted the United States’ motion to
quash. It agreed that the privilege covered “operational
details concerning the specifics of cooperation with a foreign
government” and that such discovery “legitimately could
jeopardize national security.” The district court concluded
that the existence of a CIA facility on Polish soil and
Poland’s cooperation with the CIA were not secret because
they had been discussed in publicly available documents.
But it declined to allow discovery on that basis. Instead, the
district court reasoned that “the mere fact of whether
operations were conducted in Poland would not seem of
much, if any, assistance to a Polish investigation” in light of
the public documents, whereas proceeding with discovery
would pose an unacceptable risk of disclosing state secrets.
22 HUSAYN V. UNITED STATES
B
Abu Zubaydah appealed, and a divided panel of this
court reversed. Husayn v. Mitchell, 938 F.3d 1123, 1126
(9th Cir. 2019). The majority opinion acknowledged that
“the government’s assertion of the state secrets privilege is
valid over much of the information requested.” Id. But it
held that the following information is not a state secret: “the
fact that the CIA operated a detention facility in Poland in
the early 2000s; information about the use of interrogation
techniques and conditions of confinement in that detention
facility; and details of Abu Zubaydah’s treatment there.” Id.
at 1134. According to the majority, these facts were no
longer “secret” because they were the subject of a Polish
investigation and had been discussed in publicly available
documents, such as media reports. Id. at 1127, 1132–34.
The majority opinion also held that because Mitchell and
Jessen are “private parties,” their testimony would not be
“equivalent to the United States confirming or denying
anything”—even though Mitchell and Jessen were the
government contractors who “proposed and developed” the
CIA’s interrogation techniques and “supervise[d]” Abu
Zubaydah’s interrogation. Id. at 1127, 1133.
Although the majority determined that most of the
requested discovery was privileged, it remanded to the
district court “to disentangle nonprivileged from privileged
information,” because, in the panel’s view, “it is not
impossible to separate secret information.” Id. at 1126,
1135. While the majority allowed that the district court
could on remand “again conclude” that “it is not possible to
disentangle the privileged from [the] nonprivileged,” the
panel expressed the view that “the record suggests that [Abu
Zubaydah] can obtain nonprivileged information from
Mitchell and Jessen.” Id. at 1136–37.
HUSAYN V. UNITED STATES 23
Judge Gould dissented. At the outset, he observed that
he is “not in a position as an Article III judge” to say that
certain matters were nonprivileged due to public reporting
and would have thus “defer[red]” to Director Pompeo’s
views. Id. at 1138 (Gould, J., dissenting). Regardless, Judge
Gould would have dismissed the § 1782 application because
“an attempt to disentangle the details of Abu Zubaydah’s
treatment in Poland could expose a broader mosaic of
clandestine ‘intelligence activities, sources, or methods,’”
thereby “jeopardiz[ing] critical national security concerns.”
Id. at 1138, 1139 (quoting Mohamed v. Jeppesen Dataplan,
Inc., 614 F.3d 1070, 1086 (9th Cir. 2010) (en banc)). Indeed,
Judge Gould wrote, the requested information will be used
in a “Polish prosecution seeking to discover aspects of the
CIA’s presence in Poland and any foreign nationals working
with the CIA there, topics the majority recognizes to be
privileged.” Id. at 1140.
Judge Gould also warned that these national security
concerns are heightened in a § 1782 proceeding, where
discovered information “is ultimately destined for a foreign
tribunal.” Id. In his view, the balance of interests “should
recognize that information produced in domestic
proceedings remains under the supervision of the United
States court system in a way that information produced in
discovery for overseas tribunals does not.” Id. In this case,
any resulting documents and testimony would be exported
for use in a quasi-criminal proceeding in Poland, “totally out
of control” of the U.S. courts. Id.
II
The serious legal errors in the majority opinion, and the
national security risks those errors portend, qualified this
case for en banc review. The majority opinion treats
information that is core state secrets material as fair game in
24 HUSAYN V. UNITED STATES
discovery; it vitiates the state secrets privilege because of
information that is supposedly in the public domain; it fails
to give deference to the CIA Director on matters uniquely
within his national security expertise; and it discounted the
government’s valid national security concerns because the
discovery was only sought against government
contractors—even though these contractors were the
architects of the CIA’s interrogation program and discovery
of them is effectively discovery of the government itself.
The majority then tasked the district court with
“disentangling” supposedly non-privileged information
from information the majority acknowledged was clearly
privileged. And all of this is happening in the context of a
§ 1782 application, where any resulting discovery will be
transferred overseas to a foreign proceeding in Poland that
purports to be investigating our country’s intelligence
efforts. This is not the result that precedent allowed, and I
fear the majority’s decision will pose unnecessary risks to
our country’s safety and security.
A
The state secrets privilege is a “privilege against
revealing military secrets, a privilege which is well
established in the law of evidence.” United States v.
Reynolds, 345 U.S. 1, 6–7 (1953). The privilege ensures the
non-disclosure of information if “there is a reasonable
danger that compulsion of the evidence will expose military
matters which, in the interest of national security, should not
be divulged.” Id. at 10; see also Gen. Dynamics Corp. v.
United States, 563 U.S. 478, 484–85 (2011); Mohamed,
614 F.3d at 1081–82; Al-Haramain Islamic Found., Inc. v.
Bush, 507 F.3d 1190, 1196 (9th Cir. 2007).
HUSAYN V. UNITED STATES 25
Given the competing interests at stake, “[w]here there is
a strong showing of necessity, the claim of privilege should
not be lightly accepted.” Reynolds, 345 U.S. at 11. But the
Supreme Court has also instructed that “even the most
compelling necessity cannot overcome the claim of privilege
if the court is ultimately satisfied that military secrets are at
stake.” Id. Applying these principles, we have upheld
application of the state secrets privilege on various
occasions, as have other circuits. See Mohamed, 614 F.3d
at 1073; Al-Haramain, 507 F.3d at 1204–05; Kasza v.
Browner, 133 F.3d 1159, 1165–67, 1168–70 (9th Cir. 1998);
see also, e.g., El-Masri v. United States, 479 F.3d 296, 299–
300 (4th Cir. 2007); Zuckerbraun v. Gen. Dynamics Corp.,
935 F.2d 544, 545 (2d Cir. 1991).
Applying the Supreme Court’s leading decision in
Reynolds, we analyze the United States’ assertion of the state
secrets privilege in three steps:
First, we must ascertain that the procedural
requirements for invoking the state secrets
privilege have been satisfied. Second, we
must make an independent determination
whether the information is privileged. . . .
Finally, the ultimate question to be resolved
is how the matter should proceed in light of
the successful privilege claim.
Mohamed, 614 F.3d at 1080 (ellipsis in original) (quotations
omitted). Everyone agrees that through declarations from
then-CIA Director Pompeo, the United States has formally
asserted the state secrets privilege. Husayn, 938 F.3d
at 1131. It is on steps two and three that my fine colleagues
in the panel majority regrettably but manifestly erred.
26 HUSAYN V. UNITED STATES
B
In concluding that the United States had not
demonstrated that the information sought in this case was
entirely privileged, the majority opinion contradicts
governing precedent, jeopardizing national security. While
the majority agreed that “much . . . of the information
requested by [Abu Zubaydah] is covered by the state secrets
privilege,” it held that “a subset of information is not”
privileged, specifically: “the fact that the CIA operated a
detention facility in Poland in the early 2000s; information
about the use of interrogation techniques and conditions of
confinement in that detention facility; and details of Abu
Zubaydah’s treatment there.” Id. at 1134. The majority also
held that “the record suggests that [Abu Zubaydah] can
obtain nonprivileged information from Mitchell and Jessen,”
which the majority says would also include “the story around
[Abu Zubaydah’s claims in Poland],” “the narrative,” and
“what sort of treatment was Mr. Zubaydah subjected to.” Id.
at 1136 (second alteration in original) (quotations omitted).
This is serious error because the state secrets privilege
should preclude discovery of these sensitive topics. In our
en banc decision in Mohamed, we held that the state secrets
doctrine “indisputably” may cover “information about
whether any foreign government cooperated with the CIA in
clandestine intelligence activities,” “information about the
scope or operation of the CIA terrorist detention and
interrogation program,” and “any other information
concerning CIA clandestine intelligence operations that
would tend to reveal intelligence activities, sources, or
methods.” 614 F.3d at 1086; see also El-Masri, 479 F.3d
at 309 (state secrets privilege covers “information regarding
the means and methods by which the CIA gathers
intelligence”); Sterling v. Tenet, 416 F.3d 338, 348 (4th Cir.
HUSAYN V. UNITED STATES 27
2005) (privilege covers “the methods and operations of the
Central Intelligence Agency”).
This is substantially the same information Abu
Zubaydah seeks in this case. The state secrets privilege
recognizes that “protecting our national security sometimes
requires keeping information about our military,
intelligence, and diplomatic efforts secret.” Gen. Dynamics,
563 U.S. at 484. Contrary to precedent, the majority opinion
in this case treats topics that lie at the core of our
counterterrorism efforts as permissible areas of inquiry.
Although “we must make an independent determination
whether the information is privileged,” Mohamed, 614 F.3d
at 1081 (quoting Al-Haramain, 507 F.3d at 1202), we have
also held that some level of deference is due to the
government’s assertion of privilege. As our en banc court
explained in Mohamed, “[i]n evaluating the need for secrecy,
‘we acknowledge the need to defer to the Executive on
matters of foreign policy and national security and surely
cannot legitimately find ourselves second guessing the
Executive in this arena.’” Id. at 1081–82 (quoting Al-
Haramain, 507 F.3d at 1203); see also Kasza, 133 F.3d at
1166 (explaining that a “claim of privilege is accorded the
‘utmost deference’ and the court’s review of the claim of
privilege is narrow”).
In this case, then-CIA Director Pompeo submitted two
substantial declarations attesting to the national security
risks that Abu Zubaydah’s discovery requests would present.
Based on his expertise and vantage point, Director Pompeo
identified specific categories of information that would pose
a risk to national security. He then explained how disclosure
of this information would harm the United States’
intelligence and counterterrorism activities, including its
28 HUSAYN V. UNITED STATES
clandestine partnerships with other governments that assist
the United States in its covert operations.
Contrary to our precedents and my colleague Judge
Gould’s compelling dissent, the panel decision does not
reflect any apparent deference to the CIA Director’s
declarations. Instead, the majority reaches a conclusion
directly at odds with that of the CIA Director: that
“disclosure of certain basic facts would not cause grave
damage to national security.” Husayn, 938 F.3d at 1133
(emphasis added) (quotations omitted).
This is very concerning. Our deference to the Executive
Branch is not unyielding, but when it comes to the sorts of
counterintelligence and counterterrorism issues presented
here, courts must recognize that their field of vision is
limited. Such deference is not an abdication of judicial duty,
but reflects a justified appreciation for the constitutional and
national security considerations that a request like Abu
Zubaydah’s necessarily implicates. See, e.g., CIA v. Sims,
471 U.S. 159, 179 (1985) (“The decisions of the [CIA]
Director, who must of course be familiar with ‘the whole
picture,’ as judges are not, are worthy of great deference
given the magnitude of the national security interests and
potential risks at stake.”).
The majority’s reason for not deferring to Director
Pompeo’s informed views marks an even further departure
from precedent: that aspects of the government’s program of
interrogating suspected terrorists “are basically public
knowledge.” Husayn, 938 F.3d at 1132; see also id. at 1134
(“These facts have been in the public eye for some years now
. . . .”); id. at 1138 (“[W]e have engaged in a public debate
over the CIA’s conduct during the early years of the war on
terror.”). As proof, the majority points to statements made
by media outlets, the Polish government, and the European
HUSAYN V. UNITED STATES 29
Court of Human Rights. See id. at 1132–33. The majority’s
refusal to accord state secret protection on grounds of
“public knowledge” conflicts with precedent and
underscores the national security risks that the court’s
decision poses.
The majority opinion’s reliance on publicly available
information to narrow the privilege is a stark departure from
the bedrock principle that “[t]he privilege belongs to the
Government” and “can neither be claimed nor waived by a
private party.” Reynolds, 345 U.S. at 7 (footnotes omitted).
In Mohamed, our en banc court thus specifically rejected the
theory that public disclosure of information (by entities other
than the United States itself) could defeat an otherwise valid
state secrets claim. The Mohamed court “recognize[d] that
plaintiffs ha[d] proffered hundreds of pages of publicly
available documents . . . that they say corroborate some of
their allegations concerning [a government contractor’s]
alleged participation in aspects of the extraordinary rendition
program,” including numerous media reports. 614 F.3d
at 1089–90. Mohamed likewise recognized that
“[a]ccording to plaintiffs, ‘[v]irtually every aspect of [one
plaintiff’s] rendition, including his torture in Egypt, has been
publicly acknowledged by the Swedish government.’” Id.
at 1074.
Yet notwithstanding all of this, we held the discovery
could not proceed based on the state secrets privilege
because “partial disclosure of the existence and even some
aspects of the extraordinary rendition program does not
preclude other details from remaining state secrets if their
disclosure would risk grave harm to national security.” Id.
at 1090 (emphasis in original). The majority opinion in this
case rejected this point on the theory that “[t]he world has
moved on since we discussed the state secrets privilege in
30 HUSAYN V. UNITED STATES
Mohamed.” Husayn, 938 F.3d at 1138. That commentary is
unsupported, but regardless, the principle that only the
government may waive the state secrets privilege is not a
time-limited one. If anything, that principle has even greater
resonance in a technology-driven world in which
information can quickly become “publicly available”
through so many means.
Director Pompeo’s declaration also directly addressed
the public disclosure issue and explained why the CIA
believed that discovery should not proceed in this matter
notwithstanding the information already in the public
domain. As Director Pompeo attested, while “the media,
nongovernmental organizations, and former Polish
government officials have publicly alleged that the CIA
operated a detention facility in Poland,” “[t]hese allegations
do not constitute an official acknowledgment by the CIA.”
This “absence of official confirmation from the CIA” is
critical: it “carries with it an additional layer of
confidentiality” and preserves “an important element of
doubt.” That, in turn, reduces the “motivat[ion of] hostile
entities or foreign governments to take action against the
CIA,” while ensuring that foreign partners can “trust our
ability to honor our pledge to keep any clandestine
cooperation with the CIA a secret.”
Courts, including ours, have recognized that the
government has a national security interest in neither
confirming nor denying a sensitive fact or event. See
Mohamed, 614 F.3d at 1089 (“[T]here is precious little
Jeppesen could say about its relevant conduct and
knowledge without revealing information about how the
United States government does or does not conduct covert
operations.”) (emphasis in original); Kasza, 133 F.3d at 1163(enforcing privilege where the government maintained that
HUSAYN V. UNITED STATES 31
the privilege “barred the presentation of any evidence
tending to confirm or disprove” certain facts relating to a
classified facility); see also Weinberger v. Catholic Action
of Haw./Peace Educ. Project, 454 U.S. 139, 146 (1981)
(holding that allegations were “beyond judicial scrutiny”
because “[d]ue to national security reasons, . . . the Navy can
neither admit nor deny that it proposes to store nuclear
weapons at [the facility]”).
The panel majority in this case thus failed to recognize
that regardless of whether some information is in the public
domain, the concerns animating the state secrets privilege
remain. Indeed, the notion that our country’s state secrets
privilege should turn on “what the rest of the world” has
supposedly acknowledged, as Judge Paez’s concurrence in
the denial of rehearing en banc maintains, is antithetical to
the core principles on which the privilege is founded. 1
The majority offered a specific reason for disregarding
Director Pompeo’s determination about the national security
significance of the United States’ refusal to confirm or deny
CIA operations in Poland: Mitchell and Jessen are “private
parties,” so their “disclosures are not equivalent to the
United States confirming or denying anything.” Husayn,
1
The majority’s reliance on findings of the European Court of
Human Rights is especially troubling. Husayn, 938 F.3d at 1127–28,
1133–34. The ECHR reached conclusions about Abu Zubaydah’s
torture in Poland in part by drawing negative inferences from Poland’s
past “denial, lack of cooperation with the inquiry bodies and marked
reluctance to disclose information of the CIA rendition activities in
Poland.” Husayn (Abu Zubaydah), ¶ 435. If a foreign partner refused to
confirm allegations to protect U.S. state secrets, and if a foreign court
later relied on that refusal to infer the truth of the allegations, then under
the majority’s reasoning the allegations would become “public
knowledge.” It cannot be the law that foreign partners would destroy the
U.S. state secrets privilege by trying to protect it.
32 HUSAYN V. UNITED STATES
938 F.3d at 1133; see also id. (“[N]either Mitchell nor Jessen
are agents of the government.”); id. at 1133 n.15 (“[N]othing
about the government’s participation in discovery would
constitute governmental acknowledgement or denial of the
site’s existence.”); id. at 1135 n.18 (same). This reflects
another substantial legal error in the majority’s opinion that
creates national security risk and warranted en banc review.
I am aware of no court that has held the state secrets
privilege is removed or diminished when the discovery is
directed to a government contractor. To the contrary, in
Mohamed itself, we held that the state secrets privilege
applied in a suit against a government contractor because the
contractor could “reveal[] information about how the United
States government does or does not conduct covert
operations.” 614 F.3d at 1089 (emphasis omitted); see also
El-Masri, 479 F.3d at 299–300 (applying state secrets
privilege in suit involving government contractors). A
contrary rule would enable an end-run around the privilege,
as litigants could simply subpoena current or former
contractors to avoid the privilege’s strictures. That cannot
be the law, especially when the United States regularly relies
on contractors in national security functions.
According to Judge Paez’s concurrence, the majority
opinion “states only that the government failed to explain
why discovery by Mitchell or Jessen would amount to an
official confirmation.” (Emphasis in original). The majority
opinion is not so limited, but even so, the “why” here is
abundantly clear. Mitchell and Jessen are not just any
contractors. They are the experts who, by the majority’s
description, “proposed and developed” the CIA’s enhanced
interrogation techniques, “supervise[d] the interrogations”
that are the subject of this proceeding, and were “involve[d]
in Abu Zubaydah’s torture.” Husayn, 938 F.3d at 1127.
HUSAYN V. UNITED STATES 33
Their knowledge of CIA operations and interrogations in
Poland is based on their work with the CIA. It is thus
inconceivable that documents and testimony from such
persons would not reflect U.S. “official acknowledgment,
implicit or otherwise,” as the majority opinion holds. Id.
at 1135 n.18. That is especially the case when the United
States will need to be actively involved in these proceedings
to protect its interests the best it can. 2
In short, while the majority opinion does not itself order
the disclosure of state secret material, it introduces a legal
framework under which privileged information is treated as
non-privileged, for reasons that conflict with precedent.
This improper framework poses untold risks for our national
security, both in this case and in the future cases that must
try to comply with the majority’s decision.
C
Of course, even if some of the requested discovery here
is non-privileged, the panel decision is still deeply
problematic. Under our case law applying Reynolds, a
matter cannot go forward when “it may be impossible to
proceed with the litigation because—privileged evidence
being inseparable from nonprivileged information that will
be necessary to the claims or defenses—litigating the case to
a judgment on the merits would present an unacceptable risk
of disclosing state secrets.” Mohamed, 614 F.3d at 1083.
2
I do not understand how Judge Paez’s concurrence can claim that
“the government can still argue on remand that it should not disclose any
information from Mitchell and Jessen that would amount to an official
confirmation.” The majority opinion forecloses that argument by
holding that “[a]s private parties, Mitchell’s and Jessen’s disclosures are
not equivalent to the United States confirming or denying anything.”
Husayn, 938 F.3d at 1133.
34 HUSAYN V. UNITED STATES
Judge Gould’s panel dissent persuasively shows the
majority’s critical errors under this standard.
As Judge Gould explained, “even otherwise innocuous
information that provides a more coherent and complete
narrative should not be produced where it may risk exposing
a broader picture.” Husayn, 938 F.3d at 1139 (Gould, J.,
dissenting). That risk is acutely present here because the
timing, location, and manner of Abu Zubaydah’s alleged
detention and interrogation are bound up in a “broader
mosaic of clandestine ‘intelligence activities, sources, or
methods.’” Id. (quoting Mohamed, 614 F.3d at 1086).
The risk is even more severe given the nature of this
proceeding. This is not a case where potentially secret
information is relevant to some claim or defense in a lawsuit.
Instead, exposing the classified “mosaic” is the entire point
of the Polish criminal proceeding. As the panel majority
explains, the requested discovery will ultimately be used to
“provide context” to foreign prosecutors seeking to identify
and prosecute Polish individuals who aided the CIA. Id.
at 1136 (majority opinion). But the identities and roles of
these individuals are privileged, as is much of their work
with the CIA—as the panel concedes. See id. at 1134. The
majority opinion thus creates a perfect storm, because any
supposedly non-privileged information “will inevitably be
placed in the context of a Polish prosecution seeking to
discover aspects of the CIA’s presence in Poland and any
foreign nationals working with the CIA there, topics the
majority recognizes to be privileged.” Id. at 1140 (Gould,
J., dissenting).
How, then, is the district court on remand supposed to
“disentangle” all of this, id. at 1126, 1137 (majority
opinion), without inadvertently disclosing highly sensitive
intelligence and counterterrorism information that could
HUSAYN V. UNITED STATES 35
jeopardize our national security? The majority has no
plausible answer. But what we know is that if a district court
in this case is expected to undertake that impossible task,
under the majority opinion district courts in virtually any
case would be required to do so, because the information at
issue here is at least as sensitive as any other. 3
It was thus not accurate for the majority to frame its
decision as a “narrow” and “limited” one. Id. at 1126, 1137.
The decision instead conveys the broad message to district
courts that even in the face of the Supreme Court’s decision
in Reynolds and declarations from the CIA Director, district
courts risk reversal if they do not undertake a
“disentanglement” process that will be fraught with peril.
That should not be the law of this circuit.
Judge Paez’s concurrence now suggests the problem
here was merely that “the district court never conducted the
third step of” the Reynolds analysis because it never “us[ed]
any discovery tools at its disposal,” such as “in camera
review, protective orders, or restrictions on testimony.” But
these “tools” all entail the district court reviewing or holding
proceedings involving clearly privileged information, as part
of an effort to “disentangle” supposedly non-privileged
items. The suggestion that these “tools” must be utilized
3
The majority suggested that depositions “could proceed in this
case” “with the use of code names and pseudonyms, where appropriate,”
as was done in Salim v. Mitchell, No. 2:15-cv-286-JLQ (E.D. Wash.
2016). See Husayn, 938 F.3d at 1137. That suggestion is not workable
here. As the district judge—who also presided in Salim—explained,
because the focus of Abu Zubaydah’s proposed discovery is so plain,
“[a]llowing the matter to proceed with a code word, such as ‘detention
site blue’ to replace Poland seems disingenuous.”
36 HUSAYN V. UNITED STATES
here is mistaken and only further jeopardizes national
security.
Reynolds is clear that even an in camera review, the least
intrusive and least risky of the options, is not necessary to
enforce the privilege. See Reynolds, 345 U.S. at 10 (“[W]e
will not go so far as to say that the court may automatically
require a complete disclosure to the judge before the claim
of privilege will be accepted in any case”). As the Reynolds
Court explained, when “there is a reasonable danger that
compulsion of the evidence will expose” state secrets, “the
court should not jeopardize the security which the privilege
is meant to protect by insisting upon an examination of the
evidence, even by the judge alone, in chambers.” Id.We acknowledged that in camera review is not always
necessary in Mohamed. 614 F.3d at 1081. And other circuits
are in accord. See, e.g., Doe v. CIA, 576 F.3d 95, 104 (2d
Cir. 2009); Sterling, 416 F.3d at 345; Zuckerbraun, 935 F.2d
at 548. As the Fourth Circuit explained, “when a judge has
satisfied himself that the dangers asserted by the government
are substantial and real, he need not—indeed, should not—
probe further” with an in camera proceeding. Sterling,
416 F.3d at 345. These observations apply perforce to other
proceedings, like the concurrence’s reference to potential
depositions of Mitchell and Jessen, which would create even
greater risk that privileged information is improperly
disclosed.
The suggestion in Judge Paez’s concurrence that
Reynolds requires an in camera review, or other proceedings
that are even more treacherous, is therefore contrary to
settled law. The district court here thus did not somehow fail
to evaluate the third part of a three-part test. But regardless,
further proceedings involving privileged information is now
the perilous course that the district court must follow, a
HUSAYN V. UNITED STATES 37
course the majority opinion regrettably foreordains for many
future cases where our country’s sensitive military and
intelligence information may be at stake.
D
This would all be troubling enough if the resulting
discovery were being used in domestic litigation. But here,
any materials that are released will be sent over to a foreign
legal system that we do not control. We should have
recognized that when the state secrets privilege is asserted,
the considerations are vastly different when the materials are
being sought for use exclusively in a foreign proceeding.
See 28 U.S.C. § 1782. That is particularly so when the
foreign proceeding is dedicated to investigating our
country’s counterintelligence operations abroad.
As we explained in Mohamed, courts evaluating state
secrets claims must ensure “that an appropriate balance is
struck between protecting national security matters and
preserving an open court system.” 614 F.3d at 1081
(quotations omitted). But when we have addressed state
secrets issues in prior cases, we were considering whether
the materials could be used in U.S. litigation. See id. at
1075–76 (claims brought under Alien Tort Statute against
U.S. corporation for its alleged involvement in the CIA’s
extraordinary rendition program); Al-Haramain, 507 F.3d
at 1193, 1195 (claims for damages and declaratory relief
brought against United States by Muslim charity allegedly
subjected to surveillance program); see also Reynolds,
345 U.S. at 2–3 (claims under Tort Claims Act brought
against United States concerning military aircraft accident).
The state secrets privilege was held to apply in these
cases notwithstanding the resulting impediments it caused in
our court system. Here, however, our courts are being used
38 HUSAYN V. UNITED STATES
as a vehicle for obtaining information that will be sent to
Poland, which has already tried but failed to obtain this
information through diplomatic channels. I agree with Judge
Gould’s panel dissent that it is “very troubling that the
majority’s analysis . . . does not acknowledge and evaluate
the consequences of the fact that the information sought in a
discovery proceeding here under § 1782 is ultimately
destined for a foreign tribunal.” Husayn, 938 F.3d at 1140
(Gould, J., dissenting). The balance of interests must be
different when “the sought discovery will be shipped
overseas for the benefit of another country’s judicial system,
and at that point, totally out of control of a domestic court.”
Id.
What message does the majority opinion send to persons
and regimes around the world desirous of our country’s
secret information? It is that even if they strike out with the
Executive Branch, they can come to the U.S. courts and try
their chances by pointing to the supposed need for
information in a foreign proceeding whose rules and
approach may be very different than our own. In some cases,
these § 1782 requests will yield nothing. But in other cases,
the imprecise “disentanglement” process may shake loose a
few nuggets of information, or even more. What will then
be done with that information we cannot know. These are
risks we should not tolerate and that a fair application of the
state secrets privilege should protect against.
I respectfully dissent from the denial of rehearing en
banc.