Respondents Brief — United States, Petitioner v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah, et al.

No. 20-827

In the Supreme Court of the United States

______________________

UNITED STATES OF AMERICA,

Petitioner,

v.

ZAYN AL-ABIDIN MUHAMMAD HUSAYN,

A.K.A. ABU ZUBAYDAH, ET AL.,

Respondents.

ON A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF ON THE MERITS FOR RESPONDENTS

ABU ZUBAYDAH AND JOSEPH MARGULIES

JOSEPH MARGULIES

jm347@cornell.edu

243 Myron Taylor

Hall

Cornell University

School of Law

Ithaca, NY 14850

(607) 255-6477

DAVID F. KLEIN

Counsel of Record

david.klein@pillsburylaw.com

JOHN PATRICK CHAMBERLAIN

john.chamberlain@pillsburylaw.com

PILLSBURY WINTHROP SHAW

PITTMAN LLP

1200 Seventeenth Street, NW

Washington, DC 20036

(202) 663-8000

Attorneys for Respondents Abu

Zubaydah and Joseph Margulies

i

TABLE OF CONTENTS

Table of Contents ................................................... i

Table of Authorities ............................................. iii

STATEMENT ........................................................ 1

A. Abu Zubaydah’s Torture ............................ 2

B. Mitchell’s and Jessen’s Prior

Disclosures .................................................. 7

C. Polish Investigation and Proceedings

Before the European Court of Human

Rights. ....................................................... 11

D. Proceedings in the District Court ............ 14

E. Proceedings in the Ninth Circuit ............. 18

SUMMARY OF ARGUMENT............................. 20

ARGUMENT ....................................................... 23

I. The Court of Appeals Correctly Reversed

the District Court’s Dismissal of the

Application, Which Seeks Discovery

of Nonprivileged Information. ....................... 23

A. As They Have Done Twice Before, Mitchell

and Jessen Can Testify to What They

Saw, Did, and Heard at Black Sites,

Without Mentioning Their Locations. ..... 26

B. The Historical Fact of a Polish Black

Site Is Not a State Secret. ........................ 29

C. Mitchell and Jessen Cannot “Officially

Confirm or Deny” Anything. .................... 36

ii

D. Under Reynolds, Abu Zubaydah’s Strong

Showing of Necessity Required More

Careful Judicial Review. .......................... 39

E. There Is No Heightened Risk from

Transmitting Nonprivileged

Information Abroad. ................................. 40

II. There Is No Basis for Replacing the

Reynolds Doctrine with a Standard of

Blind Deference, as the Government

Seems to Suggest. .......................................... 41

III. The Government’s Abuse-of-Discretion

Argument Is Not Properly Before this

Court and, In Any Event, Is Without

Merit. .............................................................. 47

A. The Government’s New Argument Was

Not Raised in Its Petition for Writ of

Certiorari or in the District Court. .......... 48

B. The Government’s Abuse-of-Discretion

Argument Mischaracterizes the

District Court Proceedings. ...................... 49

C. In Any Event, There Was No Abuse of

Discretion by the District Court. ............. 50

CONCLUSION .................................................... 55

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Abilt v. CIA,

848 F.3d 305 (4th Cir. 2017)................................24

ACLU v. Brown,

619 F.2d 1170 (7th Cir. 1980)........................24, 39

ACLU v. CIA,

710 F.3d 422 (D.C. Cir. 2013) ..............................36

Al–Haramain Islamic Found., Inc. v. Bush,

507 F.3d 1190 (9th Cir. 2007)........................24, 30

Ansonia v. Bd. of Educ. v. Philbrook,

479 U.S. 60 (1986) ................................................54

Bank Line Ltd. v. United States,

68 F. Supp. 587 (S.D.N.Y. 1946) ........................25

Boumediene v. Bush,

553 U.S. 723 (2008) ..............................................44

Bourjaily v. United States,

483 U.S. 171 (1987) ..............................................34

United States v. Burr,

25 F. Cas. 30 (C.C.D. Va. 1807) ......... 39, 40, 42, 45

United States v. Burr,

25 F.Cas. 187 (C.C.D. Va. 1807) ..........................42

Crater Corp. v. Lucent Techs., Inc.,

423 F.3d 1260 (Fed. Cir. 2005) ............................24

Cresmer v. United States,

9 F.R.D. 203 (E.D.N.Y. 1949) ..............................25

Doe v. CIA,

576 F.3d 95 (2d Cir. 2009) ...................................39

iv

Ellsberg v. Mitchell,

709 F.2d 51 (D.C. Cir. 1983) .................... 24, 25, 39

Exxon Co., U.S.A. v. Sofec, Inc.,

517 U.S. 830 (1996) ..............................................34

Ex parte Milligan,

71 U.S. 2 (1866) ..............................................43, 44

Firth Sterling Steel Co. v. Bethlehem Steel Co.,

199 F. 353 (E.D. Pa. 1912) ............................24, 25

Fitzgibbon v. CIA,

911 F.2d 755 (D.C. Cir. 1990) ..............................37

Glossip v. Gross,

576 U.S. 863 (2015) ..............................................34

In re Grand Jury Subpoena,

218 F. Supp. 2d 544 (S.D.N.Y. 2002) ..................24

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ..............................................44

Hepting v. AT&T Corp.,

439 F. Supp. 2d 974 (N.D. Cal. 2006)..................30

Hudson River Sloop Clearwater, Inc. v. Dep’t of

Navy,

891 F.2d 414 (2d Cir. 1989) .................................37

Husayn (Abu Zubaydah) v. Poland,

No. 7511/13 (Eur. Ct. H.R. 2014) ................ passim

Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004) ...................................... passim

Johnson v. CIA,

2018 WL 833940 (S.D.N.Y. Jan. 30, 2018) .........35

Kewanee Oil Co. v. Bicron Corp.,

416 U.S. 470 (1974) ..............................................30

Lawrence v. Texas,

539 U.S. 558 (2003) ..............................................12

Marbury v. Madison,

1 Cranch 137 (1803) .......................................26, 44

v

Military Audit Project v. Casey,

656 F.2d 724 (D.C. Cir. 1981) .................. 35, 36, 37

Mitchell v. Forsyth,

472 U.S. 511 (1985) ..............................................44

Mohamed v. Jeppesen Dataplan Inc.,

614 F.3d 1070 (2010) ......................... 16, 24, 25, 45

United States v. Nixon,

418 U.S. 683 (1974) ..............................................26

Olaplex, Inc. v. L’Oreal USA, Inc.,

2021 WL 1811722 (Fed. Cir. May 6, 2021) .........30

In re Premises Located at 840 140th Ave. NE,

Bellevue, Wash.,

634 F.3d 557 (9th Cir. 2011)................................15

United States v. Reynolds,

345 U.S. 1 (1953) .......................................... passim

Spock v. United States,

464 F. Supp. 510 (S.D.N.Y. 1978) .......................30

Trump v. Vance,

140 S.Ct. 2412 (2020) ...........................................42

Watts v. Indiana,

338 U.S. 49 (1949) ................................................36

Weber v. Finker,

554 F.3d 1379 (11th Cir. 2009)............................52

Whitney v. Robertson,

124 U.S. 190 (1888) ..............................................52

Ziglar v. Abbasi,

137 S.Ct. 1843 (2017) ...........................................44

vi

Statutes and Treaties

Treaty Between the United States of America and

the Republic of Poland on Mutual Legal

Assistance in Criminal Matters, U.S.-Pol.,

July 10, 1996, T.I.A.S. No. 99-917.1....................52

United States Code

Title 28, Section 1782 .................................. passim

Title 28, Section 2241(e)(2) ..................................19

Rules and Regulations

Federal Rule of Evidence

Rule 104(a) ...........................................................34

Rules of the Supreme Court of the United States

Rule 14.1 ..............................................................48

Miscellaneous

Poland’s secret CIA prisons: Kwasniewski admits he

knew, BBC NEWS (Dec. 10, 2014)

(https://tinyurl.com/3yhus2v2) ............................33

Charles Alan Wright & Arthur R. Miller,

26 Federal Practice and Procedure

Evidence 5665 (1st ed.) ........................................29

THE FEDERALIST No. 51 (James Madison) ................44

THE FEDERALIST No. 84 (Alexander Hamilton) ........44

Hearing Transripts in United States v. Khalid

Shaikh Mohammad, et al.

vii

Jan. 21, 2020 Transcript

(https://tinyurl.com/er797abs) ............................8

Jan. 22, 2020 a.m. Transcript

(https://tinyurl.com/er797abs) ......................8, 10

Jan. 22, 2020 p.m. Transcript

(https://tinyurl.com/2d9tuu4a) .....................9, 10

Jan. 27, 2020 Transcript, Part 3 of 5

(https://tinyurl.com/nfpmc4wz) ..........................9

Jan. 27, 2020 Transcript, Part 4 of 5

(https://tinyurl.com/nkfzajpb) .............................9

Jan. 31, 2020 Transcript

(https://tinyurl.com/4bzwktxe)......................9, 10

James E. Mitchell, Enhanced Interrogation:

Inside the Minds and Motives of the

Islamic Terrorists Trying to Destroy

America (2016) .....................................................11

Statement of President Barack Obama, Aug. 1, 2014

https://obamawhitehouse.archives.gov/the-pressoffice/2014/08/01/press-conference-president .......1

Statement of Ambassador James S. Gilmore III,

Dec. 10, 2020, https://tinyurl.com/szuyj7yc ........12

S. Rep. No. 288, 113th Cong.,

2d Sess. (2014) ............................................. passim

1

STATEMENT

This case arises from the CIA’s attempt to gather

intelligence through the use of torture.1 The CIA

undertook this effort after the attacks of September

11, 2001, with the cooperation of a number of foreign

states who allowed the CIA to establish then-secret

“black sites” on their territory. See generally S. Rep.

No. 288, 113th Cong., 2d Sess. (2014), Senate Select

Committee on Intelligence, Committee Study of the

Central Intelligence Agency’s Detention and

Interrogation

Program,

Executive

Summary

(hereafter “SSCI Report”).

Respondent Zayn-al Abidin Muhammad Husayn

(“Abu Zubaydah”) was the first prisoner detained and

tortured in such a site. He is a stateless Palestinian

whom the CIA mistakenly believed was a highranking member of al-Qa’ida. Id. at 410-411. He was

captured in Pakistan in March 2002, and held at a

number of black sites from late March 2002 until

September 2006, when he was transferred from CIA

to DOD custody and moved to the U.S. prison at

Guantánamo Bay, where he remains.

The locations of many black sites are now widely

known. The two former CIA contractors who devised

and implemented the torture program (Respondents

James Mitchell and John “Bruce” Jessen) have twice

testified under oath about what they saw, heard, and

President’s

News

Conference,

Aug.

1,

2014,

https://obamawhitehouse.archives.gov/the-press-office/2014/08/

01/press-conference-president (“[W]e did some things that were

wrong. … [W]e tortured some folks. We did some things that

were contrary to our values.”).

1

4825-6325-6053.v1

2

did at various black sites, including what they did to

Abu Zubaydah and some of what they observed at the

black site at issue in this litigation. It is undisputed

that this testimony contains no state secrets. In

addition, the European Court of Human Rights

(“ECHR”) found “beyond a reasonable doubt” that

Abu Zubaydah was initially detained by the CIA at a

black site in Thailand before being transferred to a

black site in Poland on December 5, 2002.2

Polish prosecutors are investigating the complicity

of Polish nationals in Abu Zubaydah’s detention and

torture. In this case, Abu Zubaydah seeks

nonprivileged discovery from Mitchell and Jessen for

use in that investigation, as permitted by 28 U.S.C.

Section 1782 (“§1782”).

The narrow question before this Court is whether

the district court may order Mitchell and Jessen to

testify (as they have done twice before) about

nonprivileged information; or if, instead, the

Government may prohibit disclosure of even

nonprivileged information by invoking the state

secrets doctrine.

A.

Abu Zubaydah’s Torture

When Abu Zubaydah was arrested, the CIA had no

detention facilities. Yet it did not want to transfer him

to military custody, because he “would have to be

2 Statement § C, infra. The SSCI Report uses code names for the

sites and confirms that in December 2002, Abu Zubaydah was

transferred from “Detention Site Green” to “Detention Site

Blue.” SSCI Report at 67. Detention Site Blue is the site at issue

in this litigation.

3

declared to the International Committee of the Red

Cross.” SSCI Report at 22. The Agency rejected the

option of holding him at the U.S. military base in

Guantánamo because of the “general lack of secrecy

and the possible loss of control to US military and/or

FBI.” Id. (internal quotation marks omitted).

Ultimately, the Agency decided to hold him at a black

site, in part because of the “lack of U.S. court

jurisdiction.” Id. In late March 2002, Abu Zubaydah

arrived at “Detention Site Green” (id. at 23), which is

now known to have been located in Thailand

(C.A.E.R. 552, ¶404). The CIA dispatched Respondent

Mitchell to the site shortly thereafter; Respondent

Jessen followed later that summer. SSCI Report at

26, 40.3

Initially, Abu Zubaydah was questioned by FBI

agents who spoke Arabic and had long experience

investigating al-Qa’ida. Id. at 24-25. Abu Zubaydah

promptly informed the agents that he intended to

cooperate, and “provided background information on

his activities.” Id. When his medical condition

deteriorated from gunshot wounds he suffered when

captured, he was transferred to a hospital, where he

was intubated, but continued to provide information

“using an Arabic alphabet chart.” Id. When the

breathing tube was removed, he “provided additional

3 The SSCI Report refers to Mitchell and Jessen as “Swigert” and

“Dunbar,” respectively. Compare C.A.E.R. 767 (CIA cable

identifying Mitchell and Jessen as Abu Zubaydah’s

interrogators) with SSCI Report at 40 (referring to the same

interrogators as “Swigert” and “Dunbar”).

4

intelligence and reiterated his intention to cooperate.”

Id.

But CIA officials thought Abu Zubaydah was

holding back. They believed, wrongly, that he was the

“third or fourth man” in al-Qa’ida, and had been

“involved in every major terrorist operation carried

out by al-Qa’ida,” including as “one of the planners of

the September 11 attacks.” Id. at 410. They also

believed he had a heightened ability to resist

interrogations and had authored an al-Qa’ida manual

on resistance techniques. Id.

None of these allegations has support in any CIA

record (id. at 410-11), and the CIA itself concluded

that the most basic of them was false: Abu Zubaydah

“was not a member of al-Qa’ida,” let alone a high

ranking member. Id. at 410. There is also no evidence

he had a role in the September 11 attacks, that he has

an unnatural ability to resist interrogations, or that

he authored an al-Qa’ida interrogation manual. Id. at

410-11.

Nonetheless, convinced that Abu Zubaydah was

withholding critical intelligence, the Agency decided

to subject him to “novel interrogation methods.” Id. at

32. In July 2002, Respondent Mitchell “provided a list

of 12 [interrogation] techniques for possible use by the

CIA.” Id.4 The interrogation team warned that the

The techniques were: “(1) the attention grasp, (2) walling,

(3) facial hold, (4) facial slap, (5) cramped confinement, (6) wall

standing, (7) stress positions, (8) sleep deprivation,

(9) waterboard, (10) use of diapers, (11) use of insects, and

(12) mock burial.” SSCI Report at 32. All but the last two were

approved and implemented. For a more detailed description of

these techniques, see C.A.E.R. 767-69 (declassified CIA cable).

4

5

proposed methods might kill Abu Zubaydah. Id. at 3435. Additionally, “in light of the planned psychological

pressure techniques to be implemented,” the team

sought “reasonable assurances that [Abu Zubaydah]

will remain in isolation and incommunicado for the

remainder of his life.” Id. at 35 (brackets in original).

CIA Headquarters confirmed that “the interrogation

process takes precedence over preventative medical

procedures” and provided these assurances. Id.5

On August 3, 2002, the CIA instructed Mitchell

and Jessen to begin. Id. at 40. For twenty consecutive

days, they tortured Abu Zubaydah. Id. Eighty-three

times, they strapped him to a board with his head

lower than his feet while they poured water up his

nose and down his throat. Id. at 231, n.1316. Just

when he thought he would drown, they raised the

board, allowing him a moment to vomit and gasp

before they repeated the torture. See, e.g., C.A.E.R.

783.6 During one session, Abu Zubaydah became

“unresponsive, with bubbles rising through his open,

full mouth.” SSCI Report at 495.

5 The CIA has made good on this promise: Abu Zubaydah, now

50 years old, has been held for nearly 20 years without charges,

and without meaningful communication with the outside world.

6 “Subject began crying, and at 1716 hours, the first water

treatment of this session was applied. [REDACTED] Subject

(and board) was elevated as necessary in order to clear his air

passage. Subject continued to whimper. The interrogators

[Mitchell and Jessen] told subject that they had been patient …

that it was time to say the truth …. Subject responded that if he

knew … he would have told them. … The interrogators stopped

subject’s denials and applied the water treatment …. Subject

continued crying and whimpering.”

6

Abu Zubaydah was also handcuffed and

repeatedly slapped and slammed into walls, forced

into a tall, narrow box the size of a coffin, and

crammed into another box that would nearly fit under

a chair, where he was left for hours.7 At least once, he

was subjected to “rectal rehydration.” Id. at 488.8 The

objective of this torture was to “induce complete

helplessness” and “reach the stage where we have

broken any will or ability of subject to resist,” so the

CIA could “confidently assess” that he was not holding

back information. C.A.E.R. 759.

In this they succeeded. By the sixth day of his

torture, Abu Zubaydah was sobbing, whimpering,

twitching, and hyperventilating. C.A.E.R. 780-83. He

was so broken that he complied with orders at the

snap of a finger. SSCI Report at 43. At that point,

Mitchell and Jessen believed Abu Zubaydah had no

more information to give and recommended that the

torture stop, but the CIA disagreed.9 The torture

7 SSCI Report at 42 (“Abu Zubaydah spent a total of 266 hours

… in the large (coffin size) confinement box and 29 hours in a

small confinement box, which had a width of 21 inches, a depth

of 2.5 feet, and a height of 2.5 feet.”).

8

Abu Zubaydah’s torture is described in graphic detail in

declassified CIA cables, some of which were produced in

discovery in the Salim litigation (described infra) and are in the

record here. C.A.E.R. 742-800. Those cables describe, inter alia,

the government-approved torture techniques (id. 766-69) and

their use on Abu Zubaydah (id. 773-77, 780-85).

9 C.A.E.R. 130-31, Mitchell’s Testimony (“[W]e ended up in a

video conference with Jose Rodriguez [of the CIA] and a bunch

of folks, and prior to that, Bruce and I had said, We’re not going

to continue doing this, and what they said was, Well, you guys

have lost your spine. I think the word that was actually used is

7

therefore continued another two weeks, “on a near 24hour-per-day basis,” until the CIA concluded that Abu

Zubaydah had been telling the truth all along “and

that he did not possess any new terrorist threat

information.” Id. at 40, 45.

B.

Mitchell’s and Jessen’s Prior

Disclosures

Mitchell and Jessen have twice provided detailed,

sworn testimony regarding their experiences and

observations at black sites generally, including their

interactions with Abu Zubaydah and some of their

observations of the site at issue in this proceeding,

without revealing information the Government deems

privileged.

In 2017, for instance, Mitchell and Jessen gave

deposition testimony in Salim v. Mitchell, No. 2:15cv-286-JLQ (E.D. Wash. 2015), which was brought on

behalf of former CIA detainees interrogated at black

sites (one of whom, Gul Rahman, died of hypothermia

while in custody—see SSCI Report at 54-55). Multiple

Government attorneys attended the depositions to

“protect against the unauthorized disclosure of

classified, protected or privileged Government

information.” C.A.E.R. 107-08.

In Salim, Mitchell testified without Government

objection about Abu Zubaydah’s interrogation at the

first black site. He recounted visiting a hospital in

that, You guys are p******, there was going to be another attack

in America and the blood of dead civilians are going to be on your

hands.”); SSCI Report at 42-43.

8

April 2002 where “Abu Zubaydah was dying”; the

“aggressive phase” of Abu Zubaydah’s interrogation;

how he asked the CIA to discontinue Abu Zubaydah’s

torture after a few days, but the Agency refused; and

how he conceived the idea of waterboarding

detainees. Id. at 119, 124-25, 128, 130-31, 134-35.

Jessen testified about, inter alia, the timing of his

visit to “Detention Site Cobalt,” and the conditions of

confinement he observed there. Id. at 109-112. The

Government did not assert the state secrets privilege

over any of this information.

More recently, in January 2020 Mitchell and

Jessen testified again in Military Commission

hearings at Guantánamo. Mitchell testified over the

course of eight days, generating more than 2,000

pages of testimony.10 He described, inter alia, how

Abu Zubaydah was kept awake for 126 consecutive

hours11 before being moved into the “isolation phase”

of his interrogation,12 and how he waterboarded Abu

Zubaydah.13 Mitchell also testified about what he

saw, heard, and did at the black site at issue in this

10 United States v. Khalid Shaikh Mohammad, et al., transcripts

available at https://www.mc.mil/. Mitchell and Jessen testified

from January 21, 2020 to January 31, 2020.

11 Jan. 21, 2020 Tr. (https://tinyurl.com/6cuy92vm) at 30348:10349:7.

12 Id. at 30350:8-11, 30353:11-355:9.

13 Jan. 22 a.m. Tr. (https://tinyurl.com/er797abs) at 30441:22443:11; 30469:11-17.

9

litigation.14 He testified, for instance, about Abu

Zubaydah’s mistreatment there15; unauthorized

interrogation techniques that were used16; the

condition of the cells17; and (in detail) the

interrogation techniques that were implemented

against detainee Khalid Sheikh Mohammed.18

Respondent Jessen testified at Guantánamo on

January 31, 2020. He discussed, inter alia, a July

2002 meeting in which he was “asked to join the

interrogation team of Abu Zubaydah”19; how Abu

Zubaydah was then “still healing physically from

some really severe injuries”20; how he and Mitchell

provided a list of proposed interrogation techniques to

the CIA21; the “proportion of time that those

techniques were used compared to the proportion of

time [the detainees] were in detention”22; and his

14 The Commission Hearings used code numbers for the black

sites instead of the color code names used in the SSCI Report.

“Location Number 4” took the place of “Detention Site Blue.” See

Jan. 27 Tr. Part 4 of 5 (https://tinyurl.com/nkfzajpb) at 31371:1822.

15 Jan. 22 p.m. Tr. (https://tinyurl.com/2d9tuu4a) at 30562:430574:23.

16 Id. at 30576:5-579:3.

17 Jan. 27 p.m. Tr. Part 3 of 5 (https://tinyurl.com/nfpmc4wz) at

31280:3-283:22.

18 Jan. 27 Tr. Part 4 of 5 at 31371:18-395:4.

19 Jan. 31 Tr. (https://tinyurl.com/4bzwktxe) at 32450:19-453:4.

20 Id. at 32461:19-462:17.

21 Id. at 32463:14-32465:17.

22 Id. at 32467:10-13.

10

perception that Abu Zubaydah “disliked” being

waterboarded “very much.”23

Mitchell and Jessen also testified about their

observations at “Detention Site Cobalt.” Mitchell

described detainees “in various stages of clothing,

chained in what looked … like horse stalls”24 while

Jessen testified about the timing of his visit25; the

layout of the site; the small, windowless cells; the loud

music that was played; and the smell of the facility.26

Jessen also described an “indigenous guard force”

that had administrative duties at Cobalt27; the

interrogation there of detainee Gul Rahman28 (who

later died of hypothermia); and how he and Mitchell

discussed improper conditions at the site after

Mitchell arrived, including the need for heaters.29

And both Mitchell and Jessen were shown

photographs and permitted to testify whether they

depicted Detention Site Cobalt.30

In addition, Mitchell authored a book detailing his

experiences as an interrogator, which includes a

disclaimer above the copyright notice stating that

23 Id. at 32478:20-23.

24 Jan. 22 a.m. Tr. at 30502:13-503:1.

Jan. 31 Tr. at 32485:16-486:5. Jessen’s testimony confirms

that “Location Number 2” is the same as Detention Site Cobalt.

Id. at 32488:17-489:7.

26 Id. at 32492:15-495:5.

27 Id. at 32510:17-20.

28 Id. at 32517:8-519:1.

29 Id. at 32522:4-524:9.

30 Jan. 22 p.m. Tr. at 30527:19-30529:23; Jan. 31 Tr. at 32496:3497:16.

25

11

“[a]ll statements of fact … are those of the author and

do not reflect the official positions or views of the

Central Intelligence Agency.” It also states the book

was published after CIA classification review.31

C.

Polish Investigation and Proceedings

Before the European Court of Human

Rights

In 2010, based on abundant evidence that Abu

Zubaydah had been detained in Poland, Respondent

Joseph Margulies and other attorneys for Abu

Zubaydah filed an application in Poland seeking to

hold Polish nationals accountable for their complicity

in Abu Zubaydah’s unlawful detention and torture on

Polish soil. They secured “injured-party” status for

Abu Zubaydah in the ensuing investigation. C.A.E.R.

443, Judgment in Husayn (Abu Zubaydah) v. Poland,

No. 7511/13, European Court of Human Rights

(“ECHR Judgment”) at ¶142. According to the Polish

government, this meant “there existed a sufficient

level of credibility,” based on the evidence offered,

“that an offence had been committed to the detriment

of [Abu Zubaydah] in Poland.” C.A.E.R. 543, ¶374.

The investigation produced no material progress

for several years (id. at 577, ¶482), prompting Abu

Zubaydah’s attorneys to file an application to the

ECHR,32 where they alleged he was a victim of crimes

31 James E. Mitchell, Enhanced Interrogation: Inside the Minds

and Motives of the Islamic Terrorists Trying to Destroy America

(2016).

32 The ECHR’s rulings are “[a]uthoritative in all countries that

are members of the Council of Europe,” and this Court has cited

12

in Poland and that Poland had breached its duty to

investigate them (id. at 395-96, ¶¶1-3).

In July 2014, the court ruled in Abu Zubaydah’s

favor, finding “beyond a reasonable doubt” that he

had been held incommunicado in a detention facility

in Poland from December 2002 to September 2003. Id.

at 558, ¶419. Additionally, the court found “abundant

and coherent circumstantial evidence” leading to the

“inevitab[le]” conclusion that “Poland knew of the

nature and purposes of the CIA’s activities on its

territory at the material time,” and that “Poland

cooperated in the preparation and execution of the

CIA rendition, secret detention and interrogation

operations on its territory.” Id. at 567, ¶444. The court

cited, inter alia, a 2012 interview with Aleksander

Kwaśniewski, the President of Poland from 1995 to

2005, who addressed allegations of a Polish black site

as follows:

Of course, everything took place with my

knowledge. The President and the Prime

Minister agreed to the intelligence cooperation with the Americans, because this

was what was required by national interest.

* * *

The decision to cooperate with the CIA

carried a risk that the Americans would use

the ECHR as persuasive authority on at least one occasion.

Lawrence v. Texas, 539 U.S. 558, 573 (2003). The United States

has “commend[ed] the Council of Europe for its efforts to get its

members to … abid[e] by judgements handed down by

the European Court of Human Rights.” Stmt. of Ambassador

Gilmore, Dec. 10, 2020 (https://tinyurl.com/szuyj7yc).

13

inadmissible methods. But if a CIA agent

brutally treated a prisoner in the Warsaw

Marriott Hotel, would you charge the

management of that hotel for the actions of

that agent? We did not have knowledge of

any torture.

Id. at 472, ¶234.

The ECHR also found that the Polish

Government’s investigation into the crimes

committed against Abu Zubaydah had been deficient.

Id. at 581, ¶493. Poland then renewed its

investigation, which remains pending.33 The Polish

Government repeatedly sought evidence from the

United States under a Mutual Legal Assistance

Treaty (“MLAT”), including requests for Abu

Zubaydah’s testimony, but was rebuffed. C.A.E.R.

632-33.

The Polish prosecutor has invited Abu Zubaydah

to submit evidence in the investigation, which is Abu

Zubaydah’s right under Polish law. Id. at 72-74. But

Abu Zubaydah cannot offer his own testimony, as the

survivor of a crime normally would, because the U.S.

Government summarily decided nineteen years ago

that he “should remain incommunicado for the

remainder of his life.” SSCI Report at 35; see also

C.A.E.R. 425, ¶80 (“A request for release of an

Abu Zubaydah’s Polish counsel have informed Respondents

that Polish prosecutorial authorities recently discontinued part

of their investigation relating to the Polish security agency. Abu

Zubaydah’s Polish counsel is appealing that decision as

permitted under Polish law. The balance of the investigation

continues.

33

14

affidavit from Abu Zubaydah had been pending before

the US authorities for more than two years but, as

was routinely the case, this request would involve the

need for litigation in a US court.”).

D.

Proceedings in the District Court

Because Mitchell and Jessen demonstrably

possess relevant, nonprivileged information about

what transpired at black sites, Abu Zubaydah and Mr.

Margulies filed an application for discovery (“the

Application”) pursuant to §1782, seeking leave to

serve subpoenas for documents and oral testimony on

Mitchell and Jessen. Pet.App. 110a. Section 1782

authorizes a federal district court to order such

discovery for use in foreign proceedings, “including

criminal investigations conducted before formal

accusation.” 28 U.S.C. § 1782(a).

Importantly, the Application did not seek

confirmation that a CIA black site existed in Poland;

that fact is well known to Polish investigators.

Respondents sought other, nonprivileged information

that could aid in establishing whether a crime was

committed under Polish law, such as the details of

Abu Zubaydah’s torture in Poland, his medical

treatment, and the conditions of his confinement.34

The Government has declassified this information

(Br. at 3; Pet.App. 142a-43a), and Mitchell and Jessen

34 See C.A.E.R. 171, Opp’n to Mot. to Quash (“Petitioners do not

require Respondents Mitchell and Jessen to confirm what Polish

prosecutorial authorities already believe to be true, and

Petitioners can gain valuable information from execution of the

subpoenas without encroaching on these matters.”).

15

have been permitted to testify about these categories

of information in the past (Stmt. § B, supra).

Mitchell and Jessen did not oppose the

Application. Pet.App. 61a. The Government, however,

filed a Statement of Interest, which conceded that the

“minimum statutory elements” of §1782 were met

(Pet.App. 65a), but argued that the Application

should be denied under the discretionary factors this

Court articulated in Intel Corp. v. Advanced Micro

Devices, Inc., 542 U.S. 241 (2004).35 The Statement of

Interest did not invoke the state secrets privilege.

Instead, it “raised unspecified hypothetical concerns

regarding privilege and classification of documents.”

Pet.App. 70a. The district court therefore “exercised

its discretion and determined the Intel factors favor

granting the Application.” Id. The Government did

not appeal that order.36

After the subpoenas were served, however, the

Government moved to quash, arguing that the state

secrets privilege required that they be quashed in

their entirety. In support, the Government submitted

a public declaration37 by then-CIA Director Michael

Pompeo, in which he argued that “[w]hether or not [a

Polish] facility existed and whether or not the Polish

Government provided assistance to the CIA remain

classified facts that cannot be disclosed without

significant harm to the national security.” Pet.App.

The Intel factors are discussed at pp. 50-55, infra.

“[A]n order pursuant to §1782 is final and appealable.” In re

Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634

F.3d 557, 566 (9th Cir. 2011).

37 The Government did not submit a classified declaration.

35

36

16

129a.

Pompeo

acknowledged

that

“media,

nongovernmental organizations, and former Polish

government officials have publicly alleged that the

CIA operated a detention facility in Poland,” but

attested that “[t]hese allegations do not constitute an

official acknowledgment by the CIA.” Id. 134a.

Pompeo did not assert that discovery of nonprivileged

information like that disclosed in Salim would be

harmful.

Respondents opposed the motion, noting that it

was “unnecessary for [Mitchell and Jessen] to confirm

or deny that a secret CIA site existed in Poland, or

that the Polish Government was complicit in its

operation,” since it would “advance the Polish

investigation if [Respondents] are allowed to seek

information about what transpired in and around the

interrogations, and under what conditions.” C.A.E.R.

157.

The district court granted the Government’s

motion and quashed the subpoenas. In assessing the

state-secrets claim, the court applied the three-part

test articulated by the Ninth Circuit in Mohamed v.

Jeppesen Dataplan Inc., 614 F.3d 1070 (2010), which

itself is a restatement of the principles established by

this Court in United States v. Reynolds, 345 U.S. 1

(1953). The district court first determined that the

Government

had

satisfied

the

procedural

requirements for invoking the privilege. Pet.App. 45a47a.

The district court then addressed the factual

predicate of the privilege claim. The court “[did] not

find convincing the [Government’s] claim that merely

acknowledging, or denying, the fact the CIA was

17

involved with a facility in Poland poses an

exceptionally grave risk to national security.” Id. 52a.

The court found that the presence of a CIA black site

in Poland was a fact that the ECHR had found

“beyond a reasonable doubt”; that Poland’s President

Kwaśniewski confirmed the site’s existence; that the

site was the subject of multiple governmental

investigations in Poland and Europe; and that its

existence had been widely reported in the media. Id.

52a-53a. The district court also acknowledged that “in

Salim, Mitchell and Jessen were both deposed at

length” about their experiences as CIA interrogators.

Id. 54a.

However, the court determined that some of the

information sought by Respondents would be

privileged, including “operational details concerning

the specifics of cooperation with a foreign

government,” and “the roles and identities of foreign

individuals.” Id. 55a-56a. Having made this

determination, the court turned to the “three

circumstances when the Reynolds privilege justifies

terminating the case”: (1) where the plaintiff cannot

make its case without the privileged information;

(2) where the defendant is deprived of evidence vital

to its defense; or (3) where “litigating the case on the

merits would present an unacceptable risk of

disclosing state secrets because the privileged and

nonprivileged evidence is ‘inseparable.’” Id. 56a. The

court determined that the first two circumstances

were absent, since the action was a pure discovery

matter without a plaintiff or defendant. Id.

But rather than determining whether the

privileged and nonprivileged information were

18

“inseparable,” the court opined that the nonprivileged

information at issue “would not seem of much, if any,

assistance to a Polish investigation.” Id. 59a. The

court then quashed the subpoenas. Id. 60a.

E.

Proceedings in the Ninth Circuit

Respondents appealed, arguing that under

Reynolds, the district court should have attempted to

disentangle privileged from nonprivileged matter

before it considered dismissing the Application. The

court of appeals therefore considered a “narrow but

important question: whether the district court erred

in quashing the subpoenas after concluding that not

all the discovery sought was subject to the state

secrets privilege.” Id. 2a-3a.

The court answered that question in the

affirmative and remanded for further proceedings.

The court “agree[d] with the district court that much,

although not all, of the information requested” was

privileged, including information “about the identities

and roles of foreign individuals involved with the

detention facility.” Pet.App. 20a. But “in light of the

record,” the court also “agree[d] with the district court

that disclosure of certain basic facts would not cause

grave harm to national security” (id. 18a), including

“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. 20a-21a). The

court reasoned that “in order to be a ‘state secret,’ a

fact must first be a ‘secret.’” Id. 18a. Invoking the

19

privilege over matters of public notoriety would “not

protect the disclosure of secret information, but

rather prevent[] the discussion of already disclosed

information in a particular case.” Id. 19a.

The court accepted arguendo the Government’s

assertion that “the absence of official confirmation

from the CIA is the key to preserving an important

element of doubt about the veracity” of publicly

available information regarding the CIA’s activities.

Id. 17a. But the Government had “fail[ed] to explain

why discovery here could amount to such an ‘official

confirmation,’” since, “[a]s the district court found,

neither Mitchell nor Jessen [who were private

contractors] are agents of the government,” and “[t]he

government has not contested—and we will not

disturb—that finding.” Id. 17a-18a.38

The court then held that the district court erred in

dismissing the action without first attempting to

separate privileged from nonprivileged matter. Id.

21a-23a. “Mitchell and Jessen have already provided

nonprivileged information similar to the information

sought here in the Salim lawsuit … illustrating the

viability of this disentanglement.” Id. 26a. The court

therefore remanded with instructions to attempt to

separate protected from unprotected information, and

directed the district court to dismiss if separation

The district court made this ruling in rejecting the

Government’s alternative argument that this proceeding is an

“action against the United States or its agents” within the

jurisdiction-stripping provisions of 28 U.S.C. § 2241(e)(2).

Pet.App. 38a-41a. The Government has abandoned that

argument.

38

20

proved impossible. Id. 27a-28a. Judge Gould

dissented. Id. 29a-43a.

The Government unsuccessfully sought rehearing

en banc. Concurring in the denial of rehearing, Judge

Paez, who authored the panel majority’s opinion,

emphasized that the court’s mandate “does not

require the government to disclose information, and

it certainly does not require the disclosure of state

secrets.” Pet.App. 73a. Indeed, it “does not compel the

government to confirm or even acknowledge any

alleged malfeasance abroad,” 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.” Id. “Instead, the majority opinion stands

solely for the narrow and well-settled proposition that

before a court dismisses a case on state secrets

grounds, it must follow the three-step framework set

forth in Reynolds,” which includes an inquiry to

determine “whether there is any feasible way to

segregate the nonprivileged information from the

privileged information.” Id. 73a-74a. Judge Bress,

joined by eleven other judges, dissented. Id. 86a-109a.

The Government petitioned for certiorari, and this

Court granted review.

SUMMARY OF ARGUMENT

The state secrets privilege, as applicable here, is

an evidentiary rule that excludes privileged evidence

from discovery. It does not exclude nonprivileged

evidence. As such, Reynolds and its progeny have

carefully defined the contours of the privilege to

21

ensure there is no greater infringement on the

interests of justice than national security demands.

This requires courts to scrutinize the Government’s

privilege assertions and to permit discovery of

nonprivileged information. In conducting this

analysis, courts properly defer to the Executive’s

assessment that the disclosure of secret information

will harm national security. But there is no special

executive branch knowledge, and therefore no reason

for deference, on the factual question of whether

information is secret; or on the judicial question of

how the matter should proceed when a discovery

request seeks both privileged and nonprivileged

information.

The court of appeals correctly applied these

principles. It critically examined the Government’s

privilege claim and upheld most of it, deferring to the

judgment of former-CIA Director Pompeo on the

question of whether disclosure of actual secrets—like

the identities of Polish nationals—would harm

national security. But the court recognized that a

subset of information was not privileged, including

Abu Zubaydah’s conditions of confinement and the

details of his interrogation, as well as the publicly

known, repeatedly confirmed historical fact that a

CIA black site existed in Poland. And although the

Government argues that “official confirmation” of this

historical fact would work unique harms, the court of

appeals properly held that “official confirmation” is

not at issue here, because the witnesses are not

agents of the Government and cannot speak on its

behalf. Under settled law, the court of appeals was

22

correct to reverse and remand to the district court for

further proceedings.

The Government incorrectly portrays that decision

as a failure of deference. Yet the Government offers

no workable principle to limit the degree of deference

it demands. To the contrary, the Government’s

argument would produce absolute deference, which

would impermissibly transfer judicial control over the

evidence in particular cases from Article III judges to

Article II officers. This Court has consistently warned

of the dangers inherent in such an approach. The

Court should affirm the court of appeals and leave in

place a rule that has served the Nation for nearly

seventy years.

The Government’s alternative argument—that

the district court “would have” abused its discretion

under §1782 by permitting discovery to proceed—was

neither presented nor fairly included in the Petition

and should be rejected for that reason alone. It also

mischaracterizes the procedural posture by ignoring

that the district court undertook a §1782

discretionary analysis only when granting the

discovery Application, not when quashing the

subpoenas. In its order granting the Application, the

district court assessed the discretionary factors under

Intel and found they weighed in favor of discovery,

rejecting the Government’s contrary arguments. The

Government now ignores all of this, effectively asking

this Court to review de novo whether discovery was

properly granted under §1782, without reference to

the actual arguments presented to the district court

and the court’s treatment of those arguments.

23

ARGUMENT

I.

The Court of Appeals Correctly

Reversed

the

District

Court’s

Dismissal of the Application, Which

Seeks Discovery of Nonprivileged

Information.

The Government may invoke the state secrets

privilege if the release of information will imperil

national security. Like any evidentiary privilege,

however, the reach of the state secrets privilege

extends no wider than necessary to achieve its

purpose, lest the privilege become a blank check for

the Government to withhold embarrassing or

criminal information.

For this reason, “[t]he court itself must determine

whether the circumstances are appropriate for the

claim of privilege,” to ensure that “[j]udicial control

over the evidence in a case [is not] abdicated to the

caprice of executive officers.” Reynolds, 345 U.S. at 810. Anything less would encourage “intolerable

abuses” by conveying to the Executive that courts will

defer even to dubious assertions of the privilege. Id.

at 8.

As the court of appeals recognized, Reynolds

proceeded in three steps. Pet.App. 13a. It ascertained

whether procedural requirements for invoking the

privilege had been satisfied; made an independent

determination whether the information was

privileged; and, having found privilege, allowed

proceedings to continue without the privileged

matter. Reynolds, 345 U.S. at 8-12. In determining

24

“how far the court should probe in satisfying itself

that the occasion for invoking the privilege is

appropriate,” Reynolds stressed that “[w]here there is

a strong showing of necessity, the claim of privilege

should not be lightly accepted.” Id. at 11-12.

For nearly seventy years, lower courts have

applied Reynolds faithfully to strike “an appropriate

balance … between protecting national security

matters and preserving an open court system.” Abilt

v. CIA, 848 F.3d 305, 311 (4th Cir. 2017) (quoting Al–

Haramain Islamic Found., Inc. v. Bush, 507 F.3d

1190, 1203 (9th Cir. 2007)). They accomplish this by

“critically [] examin[ing]” the Government’s privilege

assertions, to “ensure that the state secrets privilege

is asserted no more frequently and sweepingly than

necessary.” Ellsberg v. Mitchell, 709 F.2d 51, 58 (D.C.

Cir. 1983). Accordingly, and consistent with Reynolds,

“the privilege may not be used to shield any material

not strictly necessary to prevent injury to national

security.” Id. at 57.39 “Any other rule would permit the

Government to [assert privilege over] documents just

to avoid their production even though there is need

for their production and no true need for secrecy.”

ACLU v. Brown, 619 F.2d 1170, 1173 (7th Cir.

1980).40 Therefore, in cases (like this one) where only

39 Accord Abilt, 848 F.3d at 312; Mohamed, 614 F.3d at 1082;

Crater Corp. v. Lucent Techs., Inc., 423 F.3d 1260, 1265 (Fed.

Cir. 2005); In re Grand Jury Subpoena, 218 F. Supp. 2d 544, 552

(S.D.N.Y. 2002).

40 Earlier case law is similar. Reynolds itself cited decisions in

which litigation continued notwithstanding the assertion of

state secrets privileges. 345 U.S. at 7, n.11 (citing, inter alia,

Firth Sterling Steel Co. v. Bethlehem Steel Co., 199 F. 353 (E.D.

25

some of the information at issue is privileged, courts

have required that “whenever possible, sensitive

information must be disentangled from nonsensitive

information to allow for the release of the latter.”

Mohamed, 614 F.3d at 1082 (quoting Ellsberg, 709

F.2d at 57). Some lower courts, including the Ninth

Circuit, recognize a narrow exception to this rule in

cases (unlike this one) where nonprivileged evidence

is “inseparable” from privileged matter. Mohamed,

614 F.3d at 1083-84.41

The court of appeals correctly applied these

principles. Pet.App. 11a-27a. It specifically

“acknowedg[ed] the need to defer to the Executive on

matters of foreign policy and national security” (id.

14a), and “agree[d] with the district court that much,

although not all, of the information requested by

Petitioners is covered by the state secrets privilege,”

including information regarding 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

Pa. 1912) (in patent dispute, ordering military secrets expunged

from record but case continued); Bank Line Ltd. v. United States,

68 F. Supp. 587 (S.D.N.Y. 1946) (declining to vacate court’s prior

order that military crash report be produced, where “no reasons

of national security [were] involved”), aff’d 163 F.2d 133 (2d Cir.

1947); Cresmer v. United States, 9 F.R.D. 203 (E.D.N.Y. 1949)

(rejecting privilege claim after in camera review showed naval

crash report contained no state secrets)).

41 As discussed in the next section, prior testimony by Mitchell

and Jessen demonstrates that privileged and nonprivileged

matter can be readily segregated here.

26

Poland.” Id. 20a. The court deferred to the CIA

Director’s assessment of whether disclosure of these

matters would be harmful. Id.

But the court properly declined to defer to three of

the Government’s arguments: that discovery could

not proceed as to nonprivileged information; that the

historical and widely-known fact of a Polish black site

is a state secret; and that confirmation of this

historical fact by Mitchell and Jessen would amount

to “official confirmation” by the Government. Id. 17a27a. These arguments do not derive from any

specialized executive-branch knowledge regarding

national security. They are legal arguments, and

deferring to them would have ceded to the Executive

the court’s “duty … ‘to say what the law is’ with

respect to the claim of privilege.” United States v.

Nixon, 418 U.S. 683, 705 (1974) (quoting Marbury v.

Madison, 1 Cranch 137, 177 (1803)).

A.

As They Have Done Twice Before,

Mitchell and Jessen Can Testify to

What They Saw, Did, and Heard at

Black Sites, Without Mentioning Their

Locations.

The Government dedicates most of its brief to

arguing that the historical fact of a Polish black site

is a state secret. Br. at 21-42. But Respondents have

argued from the outset that they do not require

confirmation of what Polish prosecutorial authorities

already know. C.A.E.R. 157 (Opp’n to Mot. to Quash).

Respondents seek other, nonprivileged information:

e.g., whether Mitchell and Jessen were at the same

27

black site as Abu Zubaydah at any point between

December 5, 2002 and September 22, 2003 (when Abu

Zubaydah was detained in Poland); whether they

interacted with Abu Zubaydah during that period;

what interrogation techniques were applied to Abu

Zubaydah then; and Abu Zubaydah’s conditions of

confinement, feeding regime, and medical treatment

during that time.

The Government does not claim any of these topics

are privileged. Br. at 3 (“[T]he United States has

declassified a significant amount of information

regarding the former CIA program, including the

details of Abu Zubaydah’s treatment while in CIA

custody, which included the use of enhanced

interrogation techniques.”); C.A.E.R. 234-35 (Pompeo

Decl. from Salim) (“[T]he enhanced interrogation

techniques employed with respect to specific

detainees in the program, and their conditions of

confinement, are no longer classified.”). Thus,

contrary to the Government’s repeated implication,

the information Respondents seek is not all

“classified.” Br. at 18, 19, 26.

The Government has twice permitted Mitchell and

Jessen to testify about these categories of unclassified

information—a material fact the Government

altogether omits from its brief. This prior testimony

included some of what they observed at the site at

issue here and what they did to Abu Zubaydah

elsewhere. See Stmt. § B.42 The parties in these prior

In this prior testimony, Mitchell and Jessen were not

questioned regarding what happened to Abu Zubaydah at the

Polish black site (a.k.a. “Detention Site Blue”). Thus, the

42

28

cases—following the lead of the SSCI Report—used

code names to disguise the locations of black sites. Id.

As they have before, Mitchell and Jessen can testify

here without saying where they were at the time.

For instance, in Salim, Mitchell was permitted to

testify about: interrogation methods used on Abu

Zubaydah, including sleep deprivation and “dietary

manipulation”; nurses sneaking food to Abu

Zubaydah; how Abu Zubaydah was “rendered to

Detention Site Green” in March 2002; how he

whimpered, wept, and vomited during his torture;

and how the CIA ordered Mitchell to continue

waterboarding Abu Zubaydah even after Mitchell

wanted to stop. C.A.E.R. 114-49. There could be no

harm to national security from Respondents seeking

comparable details of Abu Zubaydah’s treatment at

“Detention Site Blue” without identifying any

geographic location.

Similarly, Jessen testified in Salim about the

timing of his visit to “Detention Site Cobalt” and his

observations of the conditions there, including as

relevant to the death of Gul Rahman. See generally id.

106-12. There is no reason Jessen cannot provide

similar testimony here.

More recently, Mitchell and Jessen provided

lengthy testimony at hearings in Guantánamo,

including limited testimony about what occurred at

“Detention Site Blue.” Stmt. § B, supra.

An analogy demonstrates the utility of such

discovery to Polish prosecutors. “Detention Site

testimony Respondents

information.

seek

here

would

provide

new

29

Cobalt” is publicly known to have been in

Afghanistan, although the CIA has never officially

confirmed this fact. C.A.E.R. 151-54. If an Afghan

prosecutor were investigating Gul Rahman’s death in

CIA custody, Jessen’s testimony about conditions at

Cobalt would be valuable evidence, if the prosecutor

knew independently that Cobalt was in Afghanistan.

Similarly, because Polish prosecutors already know

Abu Zubaydah was in Poland from December 2002 to

September 2003, any testimony about what happened

to him during that period would be probative, even if

the witnesses do not independently confirm the

locations of the events they testify about. This is

precisely the kind of testimony that Mitchell and

Jessen have been permitted to provide on two prior

occasions. What was not privileged before cannot be

privileged now.

The Government says nothing to this argument,

falling back on the contention that Respondents seek

exclusively privileged information. They do not.

Therefore, under Reynolds, the district court should

have attempted to segregate privileged from

nonprivileged matter before dismissing the

Application entirely. Its failure to do so was error, as

the court of appeals correctly held.

B.

The Historical Fact of a Polish Black

Site Is Not a State Secret.

The court of appeals properly held that “to be a

‘state secret,’ a fact must first be a ‘secret.’” Pet.App.

18a; see also Charles Alan Wright & Arthur R. Miller,

26 Fed. Prac. & Proc. Evid. § 5665 (1st ed.) (“[T]he

30

secrecy required for the privilege can be destroyed

without regard to who made or authorized the

disclosure.”).43 And here, the fact that the CIA

operated a black site in Poland is no secret. Thus,

even if Mitchell and Jessen were to utter the words,

“and it happened in Poland,” that would not disclose

a state secret. It would merely repeat what has

already been definitely established.

The ECHR Judgment sets out copious evidence of

the Polish black site, including declassified CIA

reports, flight records, Polish governmental records,

eyewitness testimony, and “coherent, clear and

categorical expert evidence explaining in detail the

chronology of the events occurring in [Abu

Zubaydah’s] case.” C.A.E.R. 556, ¶415. The recitation

of this evidence spans over a hundred pages. Id. 40643 Accord Al-Haramain Islamic Foundation, Inc. v. Bush, 507

F.3d 1190, 1197-98 (9th Cir. 2007) (existence of Terrorist

Surveillance Program was no longer state secret following

official statements by President, Attorney General, and other

officials), superseded on other grounds, 705 F.3d 845 (9th Cir.

2012): Spock v. United States, 464 F. Supp. 510, 518-20 (S.D.N.Y.

1978) (sustaining privilege, but refusing to dismiss case, where

purportedly secret information had been reported in the press

and other facts at issue were concededly not secret); Hepting v.

AT&T Corp., 439 F. Supp. 2d 974, 994 (N.D. Cal. 2006) (“[T]he

very subject matter of this action is hardly a secret. … [P]ublic

disclosures by the government and AT&T indicate that AT&T is

assisting the government to implement some kind of

surveillance program.”); cf. Kewanee Oil Co. v. Bicron Corp., 416

U.S. 470, 475 (1974) (“The subject of a trade secret must be

secret, and must not be of public knowledge.”); Olaplex, Inc. v.

L’Oreal USA, Inc., 2021 WL 1811722, at *5 (Fed. Cir. May 6,

2021) (“Whether a trade secret exists is generally a question of

fact.”).

31

529. And although the Government now criticizes the

ECHR’s findings, it was the Government that placed

the ECHR Judgment into the record below (id. 380)—

inviting, if not compelling, the lower courts to take

notice of its content.

The lower courts were thus presented with

substantial evidence, including the ECHR’s detailed

findings reciting all of the voluminous evidence before

it. See, e.g., Pet.App. 53a (district court cites passages

of ECHR Judgment). They learned, for example, that

a plane that was “conclusively identified as the

rendition aircraft used for transportation of [CIA

detainees] at the material time” landed in Szymany,

Poland on December 5, 2002, with eight passengers

and four crew, and departed less than an hour later

with no passengers and four crew—a fact officially

confirmed by the Polish Border Guard. C.A.E.R. 55356, ¶¶406-414.44 Its flight path was traced back to

Bangkok, the site of Abu Zubaydah’s initial detention

and torture. Id. at 552-54, ¶¶403-04, 408. This

landing was followed by “five further landings of the

N379P (the ‘Guantánamo express’), the most

notorious CIA rendition plane,” and culminated with

the landing of another CIA rendition plane on

44 The court noted “abundant evidence identifying [the aircraft

at issue] as rendition planes used by the CIA for the

transportation of detainees,” including “flight plan messages by

Eurocontrol and information provided by the Polish Border

Guard and the Polish Air Navigation Services Agency [], which

was released and subsequently analyzed in depth in the course

of the international inquiries concerning the CIA secret

detentions and renditions.” ¶407 (citing evidence at ¶¶95-96,

252, 265, 281-86, 310 & 312).

32

September 22, 2003—“the date indicated by [Abu

Zubaydah] for his transfer from Poland, confirmed by

the experts as the date of his transfer out of Poland

and identified by them as the date on which the black

site [] in Poland had been closed.” Id. at 556, ¶414.

“[N]o other CIA-associated aircraft” was recorded in

Szymany after that date. Id.

The ECHR also heard testimony from Swiss

Senator Dick Marty, who prepared several

investigative reports commissioned by the Council of

Europe about the black sites (the “Marty Reports”).

The 2007 Marty Report reported “clear and detailed

confirmation from our own sources, in both the

American intelligence services and the countries

concerned, that [Poland and Romania] did host secret

detention centres under a special CIA programme.”

Id. at 476-77, ¶246. The report described eyewitness

accounts of how, when rendition aircraft arrived in

Szymany, “[a] ‘landing team’ comprising American

officials waited at the edge of the runway, in two or

three vans with their engines often running.” Id. at

482-83, ¶254. The aircraft would taxi to the far end of

the runway, out of sight of the control tower, where

the vans would meet it. Id. After a brief pause, the

vans would quickly leave the airport through the front

security gate, without stopping, while the guards

“turned [their] eyes away.” Id.; see also id. at 505-09,

¶¶287-296 (citing Szymany airport manager’s

eyewitness testimony corroborating these details).

Thus, the ECHR’s findings were not “based on …

adverse inferences,” as the Government contends, nor

do they comprise “public speculation” that leaves open

an “element of doubt.” Br. at 30, 35, 36. They are the

33

refined product of a core judicial function. And the

Government’s criticism of the ECHR’s standard of

proof, id. at 35-36, is a distraction.45 By any standard

of proof, the overwhelming evidence establishes that

a CIA black site existed in Poland.

The site’s existence was separately confirmed by

Aleksander Kwaśniewski, Poland’s President from

1995 to 2005. In 2012, he reversed prior denials and

acknowledged that he personally authorized the black

site: “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.” C.A.E.R. 472, ¶234. In 2014,

Kwaśniewski again confirmed the site’s existence,

adding that “Poland took steps to end the activity at

this site and the activity was stopped at some point.”46

The Polish Government further confirmed the

site’s existence when it represented to the ECHR that

its investigation “involved many and various offences,

some of them so serious that they were not subject to

the statute of limitation,” and stated that “as of

September 2012 the prosecution had already taken

evidence from 62 persons. The case file comprised 43

volumes of documentary evidence.” C.A.E.R. 572,

¶¶461-62.

45 The ECHR explained what it meant when it made its findings

“beyond a reasonable doubt,” and did not imply that its standard

was less demanding than other courts’. C.A.E.R. 549, ¶394.

46 Poland’s secret CIA prisons: Kwasniewski admits he knew,

BBC NEWS (Dec. 10, 2014), https://tinyurl.com/3yhus2v2.

34

Given this ample foundation, both the district

court and the court of appeals found as a matter of

fact that a black site existed in Poland, and that its

existence was widely known.47 The district court

found the Polish site was “the subject of governmental

investigations in Poland and Europe going back to

2005 and 2007,” “acknowledged” by the former

President of Poland, and “fairly widely reported in

media.” Pet.App. 52a-53a. The court of appeals

agreed, “in light of the record,” that “certain basic

facts” had been well-established and widely reported,

including “that the CIA detained Abu Zubaydah in

Poland.” Pet.App. 18a-19a; see also id. 20a-21a (“[W]e

also agree with the district court that a subset of

information is not … a state secret,” including “that

the CIA operated a detention facility in Poland in the

early 2000s.”).

Absent clear error, these factual findings cannot

be disturbed, Bourjaily, 483 U.S. at 181, especially

when they represent the concurrent findings of two

lower courts. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S.

830, 841 (1996) (the Court “cannot undertake to

review concurrent findings of fact by two courts below

in the absence of a very obvious and exceptional

showing of error”) (citation omitted); Glossip v. Gross,

576 U.S. 863, 882 (2015) (“[T]his Court will not lightly

overturn the concurrent findings of the two lower

Under Federal Rule of Evidence 104(a), “[t]he court must

decide any preliminary question about whether … a privilege

exists.” That factual determination is reviewed for clear error.

Bourjaily v. United States, 483 U.S. 171, 181 (1987).

47

35

courts.”) (internal quotation marks and citation

omitted).

The Government does not confront these findings.

Instead, it argues they can be brushed aside because,

in the “world of clandestine operations,” spies leave

false trails to mislead their adversaries. Br. at 32. The

implication is that the many courts and investigators

who found a site in Poland may have been duped; that

the CIA seeded, years in advance, the evidence that

courts and investigators later uncovered; that the

former Polish president was complicit in this duplicity

when he admitted the existence of a Polish black site;

and that Polish prosecutors spent years compiling “43

volumes of documentary evidence” (C.A.E.R. 572)

regarding a site that never existed. Setting aside that

the Government did not present this argument to

either court below, it offers no plausible reason for

creating such a fiction.

To support its argument, the Government cites

Military Audit Project v. Casey, 656 F.2d 724 (D.C.

Cir. 1981) (Br. at 32)—a sui generis FOIA case that

provides no guidance here. “[M]uch of the discussion

in [Casey] concerned … the possibility that the CIA

might have invented a ‘fallback cover story’ for the

[Glomar Explorer] project.”48 Johnson v. CIA, 2018

WL 833940, at *4 (S.D.N.Y. Jan. 30, 2018). But here,

“there is no ‘fallback cover story’ that the CIA is trying

to protect.” Id. Domestic and international courts

have found as a matter of fact that there was a black

48 The Government later admitted that the implausible fiction of

secrecy it asked the Casey court to subscribe to was just that. Br.

at 34, n.5.

36

site in Poland; the Polish government is under court

order to investigate its nationals’ conduct there; and

the notion that all this is happening as part of a CIA

exercise in misdirection is too fantastic to be

credited.49

By insisting that the Polish black site is a “secret,”

the Government asks this Court “to give [its]

imprimatur to a fiction of deniability that no

reasonable person would regard as plausible.” ACLU

v. CIA, 710 F.3d 422, 431 (D.C. Cir. 2013). But “[t]here

comes a point where this Court should not be ignorant

as judges of what [they] know as men” and

women. Watts v. Indiana, 338 U.S. 49, 52 (1949)

(opinion of Frankfurter, J.). To sustain the

Government’s privilege assertion would not protect

“secret” information or benefit the public interest. At

best, it would create perverse incentives for future

misconduct; at worst, it would give the Executive

unfettered power to impose its own version of history

on the courts.

C.

Mitchell and Jessen Cannot “Officially

Confirm or Deny” Anything.

The Government argues there is “a critical

difference between official and unofficial disclosures.”

Moreover, Casey is distinguishable because there the

Government had already “compl[ied] with the [discovery]

requests to the maximum extent consistent with national

security by releasing, for example, over two thousand pages of

documents.” Casey, 656 F.2d at 745. Casey thus exemplifies the

course the court of appeals directed the district court to follow on

remand here.

49

37

Br. at 30 (quoting Fitzgibbon v. CIA, 911 F.2d 755,

765 (D.C. Cir. 1990)). Director Pompeo’s declaration

similarly contends that “the concept of official

acknowledgement is important to the protection of the

CIA’s intelligence mission,” and while “the CIA

obviously cannot control” what others say or do, “the

CIA cannot officially acknowledge allegations that

would confirm or deny the existence of a classified

intelligence relationship with a foreign government.”

Pet.App. 134a-35a.

The court of appeals did not question this

principle, but properly rejected its application, for two

reasons. First, the CIA is not being asked to testify—

two private individuals are—and the Government has

“fail[ed] to explain why discovery here could amount

to … ‘official confirmation.’” Id. 17a. The district court

found that “neither Mitchell nor Jessen are agents of

the government” (id. 18a) and the Government does

not contest that finding on appeal. See supra at 19,

n.38. “As private parties, Mitchell’s and Jessen’s

disclosures are not equivalent to the United States

confirming or denying anything.” Pet.App. 18a. Their

testimony

would

merely

provide

unofficial

confirmation of what is already public knowledge. See

Casey, 656 F.2d at 743-44 (accepting Government’s

argument that admissions of former CIA Director

with firsthand knowledge of Glomar Explorer Project

were “‘not an official governmental pronouncement’

because [the former director] was not an agency

official at the time [his] book was published”); Hudson

River Sloop Clearwater, Inc. v. Dep’t of Navy, 891 F.2d

414, 421 (2d Cir. 1989) (statements by retired admiral

38

“cannot effect an official disclosure of information

since he is no longer an active naval officer”).

The Government urges that it must be able to

assure foreign counterparts that it will keep secrets

not only through its agents, but through its

contractors as well. This stands to reason when there

are non-public facts to conceal. But here, the

Government’s expressed concern is not to protect

undisclosed information, but to avoid attribution to

itself. Mitchell and Jessen have no power to effect

that.50

Second, the harm the Government warns of does

not follow logically from the testimony sought. As the

district court recognized, “given the notoriety” of

public disclosures about the Polish black site, “there

must logically come a point at which they have

become so widely and credibly recognized as true that

confirmation or denial cannot exacerbate the harm

already done.” Pet.App. 49a (quoting Opp’n to Mot. to

Quash). This is precisely why the district court “d[id]

not find convincing the claim that merely

acknowledging, or denying, the fact the CIA was

involved with a facility in Poland poses an

50 The CIA evidently recognized this when it allowed Mitchell’s

book, Enhanced Interrogation, to be published after passing

classification review, under a disclaimer that its statements of

fact “are those of the author and do not reflect the official

positions or views of the Central Intelligence Agency.” Supra at

11.

39

exceptionally grave risk to national security.”

Pet.App. 52a.51

Deference to the Government’s plausible

explanations may be appropriate, but if judicial

review is to have meaning, courts must be allowed to

doubt explanations that make no sense.

D.

Under Reynolds, Abu Zubaydah’s

Strong Showing of Necessity Required

More Careful Judicial Review.

Following the lead of United States v. Burr, the

Court in Reynolds recognized that a privilege claim is

weakest when the need for the information is

greatest. Reynolds, 345 U.S. at 11 (“Where there is a

strong showing of necessity, the claim of privilege

should not be lightly accepted .…”); United States v.

Burr, 25 F. Cas. 30, 37 (C.C.D. Va. 1807) (evidence

would be suppressed unless “immediately and

essentially applicable to the point” at issue).52 In

Reynolds, necessity was “greatly minimized” because

the plaintiffs could obtain the evidence they sought by

other means. Id.

This case presents the opposite situation. Abu

Zubaydah seeks evidence of crimes committed against

him. He has no other means by which to gather this

51 The court of appeals did not address this conclusion of the

district court, because it found official confirmation was not at

issue. Pet.App. 17a, n.15.

52 See also, e.g., Ellsberg, 709 F.2d 51 at 58-59 (acknowledging

the role of necessity in assessing privilege claim); Doe v. CIA, 576

F.3d 95, 104 (2d. Cir. 2009) (same); Brown, 619 F.2d at 1173

(same).

40

evidence, nor does the Government contend

otherwise. He cannot testify, as any survivor of a

crime would, because the Government summarily

decided nearly twenty years ago that he would remain

incommunicado for the rest of his life to keep him

from publicly disclosing his torture. SSCI Report at

35. His attorneys cannot communicate information on

his behalf without CIA pre-clearance. See C.A.E.R.

669 (Margulies Decl.). Poland’s repeated requests for

his testimony have been rejected. Id. 632-33. Thus, he

seeks an alternative avenue by presenting evidence

from witnesses who undisputedly have first-hand

knowledge of those crimes—whom the Government

twice before freely permitted to testify regarding his

treatment at black sites. A greater showing of

necessity can scarcely be imagined.

E.

There Is No Heightened Risk from

Transmitting Nonprivileged

Information Abroad.

As the court of appeals recognized, the fact that

evidence is destined for Poland has no bearing on

whether it is privileged:

A state secret … is a state secret in any

forum, domestic or foreign. The crux of the

question is whether “there is a reasonable

danger that compulsion of the evidence will

expose … matters which, in the interest of

national security, should not be divulged.”

Pet.App. 21a n.17 (quoting Reynolds, 345 U.S. at 10).

The Government is therefore mistaken in contending

that its privilege assertions are entitled to “enhanced

41

deference” in this setting. Br. at 39. The intended use

of evidence is irrelevant to whether it is privileged.

Nor is there any heightened risk arising from

transmitting nonprivileged evidence overseas, “out of

control of a domestic court.” Id. Court proceedings are

presumptively public. The deposition transcripts of

Mitchell and Jessen in Salim were promptly

published by the U.S. media. Mitchell’s and Jessen’s

testimony at Guantánamo was in open court. The

Government itself published transcripts of that

testimony online. All this nonprivileged information

is now “out of the control of a domestic court.” Anyone

in the world can access and use it as they deem fit. At

any rate, as an added control here, any testimony will

be subject to the supervision of a domestic court before

anything is sent abroad. There is nothing perilous in

this, and no reason to expand the state secrets

doctrine in cases where nonprivileged information

will be transmitted to prosecutors abroad.

II.

There Is No Basis for Replacing the

Reynolds Doctrine with a Standard of

Blind Deference, as the Government

Seems to Suggest.

The Government portrays the court of appeals’

decision as a failure of deference due the Executive.

But what the Government seeks is to convert a

longstanding standard of measured deference into

practical immunity from judicial review. This would

be a drastic departure from precedent and would

upend the balance of powers set out in the

Constitution.

42

This Court has always insisted on more. Since the

days of John Marshall, the Justices of this Court have

recognized that where the Executive asserts that

“disclosure of [evidence] would endanger the public

safety,” the proper course is for the court to look

behind the privilege claim and suppress only that

“which it would be imprudent to disclose.” Burr, 25 F.

Cas. at 37. In Burr, the Chief Justice acknowledged

that the President might withhold information to

protect public safety, but required him to “state the

particular reasons” for doing so; then the court,

paying “all proper respect” to those reasons, would

decide whether to compel disclosure. United States v.

Burr, 25 F.Cas. 187, 192 (No. 14694) (C.C.D. Va.

1807); see also Trump v. Vance, 140 S.Ct. 2412, 2422

(2020) (“Marshall also rejected the prosecution’s

argument that the President was immune from a

subpoena duces tecum because executive papers

might contain state secrets.”).

Almost a century-and-a-half later, the Court,

citing Burr, reaffirmed that “[j]udicial control over the

evidence in a case cannot be abdicated to the caprice

of executive officers.” Reynolds, 345 U.S. at 9-10.

Accordingly, the “court itself must determine whether

the circumstances are appropriate for the claim of

privilege,” and uphold the privilege only “if the court

is ultimately satisfied that military secrets are at

stake.” Id. at 8, 11.

To be “satisfied that military secrets are at stake,”

such that interests in justice must give way, courts

must afford review that is meaningful. In doing so,

courts properly accord deference to the Executive on

whether harm to national security will result from the

43

disclosure of secret information—for this is an area in

which courts are ill-suited to second-guess the

Executive’s assertions. The court of appeals gave such

deference here. Pet.App. 20a. But there is no reason

for deference on the antecedent question of whether a

secret actually exists, or on the subsequent question

of how the case should proceed when the court finds

that some, but not all, of the information at issue is

privileged. The Judiciary is as well situated as the

Executive to determine, based on evidence, whether a

fact is secret. And determining how the case should

proceed is a core judicial function, abdication of which

would violate separation of powers principles

enshrined in our Constitution.

This Court’s jurisprudence underscores these

principles. Even in cases involving the military

authority entrusted to the Executive, the Court has

rejected arguments that executive action should

entirely escape judicial oversight. As far back as Ex

parte Milligan, the Court rejected the proposition that

civilian courts had no role in reviewing the

Executive’s commitment of a prisoner to trial by a

military commission. 71 U.S. 2 (1866). The Court

observed that even in time of war, when “the passions

of men are aroused and the restraints of law are

weakened, if not discarded[,] these safeguards need,

and should receive, the watchful care of those

entrusted with the guardianship of the Constitution

and the laws.” Id. at 124. And, in Hamdi v. Rumsfeld,

the Court again rejected the contention that courts’

limited institutional capabilities in military matters

required judicial acquiescence. 542 U.S. 507, 527-32

(2004) (plurality opinion). The Government argued

44

that “courts should review [the Executive’s]

determination that a citizen is an enemy combatant

under a very deferential ‘some evidence’ standard.”

Id. at 527. Rejecting that argument, the Court

stressed, “[w]hatever power the United States

Constitution envisions for the Executive ... in times of

conflict, it most assuredly envisions a role for all three

branches when individual liberties are at stake.” Id.

at 536.53

History teaches that Executive power, left

unchecked, will “lead to intolerable abuses.”

Reynolds, 345 U.S. at 8.54 This very case arises from

the Executive’s attempt to evade judicial oversight:

the Government established foreign black sites to

evade “U.S. court jurisdiction” and public scrutiny.

SSCI Report at 22. This led to conduct the Founders

would have recognized as an abuse of power,55 which

Accord Boumediene v. Bush, 553 U.S. 723, 765 (2008)

(complete deference “would permit a striking anomaly in our

system of government, leading to a regime in which Congress

and the President, not this Court, say ‘what the law is’”) (quoting

Marbury, 1 Cranch at 177); Ziglar v. Abbasi, 137 S.Ct. 1843,

1862 (2017) (“[N]ational-security concerns must not become a

talisman used to ward off inconvenient claims—a ‘label’ used to

‘cover a multitude of sins.’”) (quoting Mitchell v. Forsyth, 472

U.S. 511, 523 (1985)).

54 Accord THE FEDERALIST No. 51 (Madison) (“If men were

angels, no government would be necessary. If angels were to

govern men, neither external nor internal controls on

government would be necessary. … [B]ut experience has taught

mankind the necessity of auxiliary precautions.”).

55 THE FEDERALIST No. 84 (Hamilton) (“To bereave a man of life

… without accusation or trial, would be so gross and notorious

an act of despotism as must convey the alarm of tyranny

throughout the whole nation; but confinement of the person, by

53

45

improper assertions of the state secrets privilege can

only compound. The courts’ role, as gatekeeper of the

evidence, is to ensure that the privilege sweeps no

more broadly than national security requires. Thus,

in both Reynolds and Burr, the courts found the

proper course would be to exclude state secrets from

evidence but allow proceedings to go forward.

Here, the court of appeals applied a three-part test

derived directly from Reynolds and the Ninth

Circuit’s prior decision in Mohamed, fulfilling its duty

to provide meaningful judicial review. Pet.App. 13a.

When the Government opposed certiorari in

Mohamed, it described this test as “correctly

appl[ying] established legal principles,” and “not [in]

conflict with any decision of this Court or any other

court of appeals.” Mohamed v. Jeppesen Dataplan

Inc., No. 10-778, United States’ Opp’n to Pet. for Cert.

at 10-11. The Government praised the court of

appeals’ “detailed and searching judicial review under

Reynolds … which included the court’s careful and

skeptical examination” of the privilege claim. Id. at 22

(emphasis added, internal quotation marks and

alterations omitted); see also id. (endorsing statement

that “an appropriate dose of ‘skepticism’ [is]

warranted where ‘serious government wrongdoing’ is

alleged”). The Government acknowledged that these

“legal principles recognized in Reynolds date back to

the earliest days of the Republic … and they have

been repeatedly affirmed in decisions since that

secretly hurrying him to jail, where his sufferings are unknown

or forgotten, is a less public, a less striking, and therefore a more

dangerous engine of arbitrary government.”).

46

time.” Id. at 24. Those are precisely the principles the

court of appeals applied in this case.

Thus, when the Government, contradicting its

prior statements to the Court, criticizes the panel

majority’s “skeptical” review (Br. at 25, 35), its true

complaint is not with the level of deference given, but

with the fact that its privilege claims were questioned

at all. The Government offers no principle to limit the

degree of deference it demands. Br. at 22 (“utmost

deference”); at 25 (“great deference”); at 39

(“enhanced deference”); at 42 (“more, not less

deference”). Instead, the Government would

eviscerate Reynolds and shield its privilege assertions

from any review. This demotes the judiciary’s role to

mere ceremony. Even in cases, like this one, where

discovery

of

nonprivileged

information

is

demonstrably feasible, the Government would

demand judicial acquiescence—not only in assessing

whether the privilege applies (the second step of the

Ninth Circuit’s analysis), but also in determining how

the matter should proceed (the third step).

The Court should not rewrite the law, as the

Government’s argument would require. It should

reaffirm the principles crystallized in Reynolds and

applied consistently by the lower courts. That the

privilege analysis was resolved against the

Government this time is not a reason to abandon two

hundred years of jurisprudence. It simply confirms

that the judicial review demanded by Reynolds is

meaningful.

47

III.

The Government’s Abuse-of-Discretion

Argument Is Not Properly Before this

Court and, In Any Event, Is Without

Merit.

Finally, the Government argues that the Court

may affirm the district court based on reasons

“independent” of the state secrets privilege. Br. at 42.

It suggests the district court “would have” abused its

discretion if it had granted Respondents’ application

to issue subpoenas pursuant to §1782, under the four

factors set forth in Intel, 542 U.S. at 264. Br. at 42-43.

This argument was not presented in the petition or

the motion to quash. It is therefore not properly before

the Court.

The

Government’s

argument

also

mischaracterizes the district court proceedings. The

Government overlooks the fact that the district court

granted the Application after resolving the Intel

factors against the Government. Afterwards, the

district court entered a separate order, holding that

the state secrets privilege “necessitate[d]” dismissal

of the Application. Pet.App. 60a. This was an error of

law concerning state secrets, not a discretionary act

concerning Intel. It was therefore properly reviewed

de novo by the court of appeals.

In any event, the district court did not abuse its

discretion in resolving the Intel factors against the

Government. For this additional reason, the

Government’s abuse-of-discretion argument should

be rejected.

48

A.

The Government’s New Argument Was

Not Raised in Its Petition for Writ of

Certiorari or in the District Court.

The Government’s abuse-of-discretion argument is

not “fairly included” in the question presented or the

petition. S. Ct. R. 14.1. Neither the question

presented nor anything else in the Government’s

petition makes mention of an “abuse of discretion”

under Intel. Instead, the question presented in the

petition asks how the state secrets privilege should

apply. Pet. iii-iv.

The district court considered the Intel factors only

when granting the Application, an order the

Government did not appeal. After the subpoenas

issued, the Government moved to quash them

“because the subpoenas seek privileged information

protected from disclosure by the state secrets

privilege.” C.A.E.R. 182. But the Government’s

motion to quash did not mention Intel, the Intel

factors, or the district court’s discretion under §1782.

C.A.E.R. 181-207. Rather, the Government argued

that “the state secrets privilege bars the discovery

sought by Abu Zubaydah.” Id. at 187.

Attempting to excuse its failure to preserve this

argument, the Government asserts that it “had no

occasion to appeal the district court’s initial order”

because the district court had “deemed it ‘premature’

to complete its Intel analysis” and made its discovery

order subject to further proceedings on any motion to

quash. Br. at 48. But that misses the point. When the

Government did move to quash, it did not ask the

district court to revisit the Intel factors. Thus, the

49

Government’s alternative argument is not properly

before this Court.

B.

The Government’s Abuse-of-Discretion

Argument Mischaracterizes the

District Court Proceedings.

The Government argues that the district court

“ultimately refused to issue an order” compelling

discovery under §1782. Br. at 42. This is simply

incorrect. The district court granted the Application

and issued an order permitting Respondents to serve

the subpoenas. The Government then brought a

separate motion, unrelated to the Intel factors and

§1782, that sought to quash the subpoenas based on

the state secrets privilege.

The court of appeals properly rejected the

Government’s argument that the district court’s

dispositive order could be “affirmed as an exercise of

discretion to deny section 1782 discovery requests”:

[T]he district court exercised its discretion

to grant the section 1782 application after

applying the Intel factors. That order is not

on appeal. Moreover, the order that was

appealed was not a discretionary one. The

district court concluded that it was required

by the state secrets privilege to quash the

subpoenas.

Pet.App. 11a, n.13 (emphasis in original). The district

court’s ruling on the state secrets privilege was an

erroneous conclusion of law under Reynolds, and

therefore a reversible error. Id. 3a. There is no abuseof-discretion issue presented by that ruling.

50

C.

In Any Event, There Was No Abuse of

Discretion by the District Court.

The Government’s abuse-of-discretion argument

also fails on its merits. It ignores what the district

court actually decided in its Intel analysis (Pet.App.

61a-71a), instead inviting this Court to undertake the

analysis de novo. This turns the standard of review on

its head, and is improper—especially because

examining what the district court actually decided

demonstrates there was no abuse of discretion.

The district court resolved the first Intel factor—

whether “the person from whom discovery is sought is

a participant in the foreign proceeding”—in

Respondents’ favor. Pet.App. 66a. The Government

now concedes that this factor cuts in favor of

discovery. Br. at 43. Therefore, the district court’s

finding on this factor was not an abuse of discretion.

As to the second factor—the receptivity of the

foreign government to U.S. judicial assistance (Intel,

542 U.S. at 264)—the district court rejected the

Government’s argument, which “focuse[d] solely on

the [MLAT] process and [was] not convincing.”

Pet.App. 67a. The court noted that “[t]he fact the

Polish government has sought information through

the treaty process, and been denied by the United

States Government further demonstrates the Polish

government would be receptive to receiving the

information. The second factor [therefore] weigh[s] in

favor of granting the Application.” Id.

Without acknowledging this finding, the

Government raises a new argument that it did not

present to either court below. The Government

51

asserts this factor weighs against discovery because

in 2011, Poland’s then-president refused to relieve

Poland’s former president of his “secrecy duty”

regarding the black site. Br. at 44. In fact, Poland’s

former president confirmed a Polish black site the

next year, in 2012. What happened in 2011 is beside

the point. But in any case, the district court cannot be

said to have abused its discretion by failing to accept

arguments the Government did not make.

The district court found that the third Intel

factor—whether the application is an attempt to

circumvent foreign proof-gathering restrictions or

other policies of a foreign country or the United

States—“cuts both ways”:

There is nothing in the materials filed with

the court to indicate the Application seeks

to circumvent Poland’s proof-gathering

restrictions or policies of Poland. Rather,

Zubaydah, as the Government concedes,

has been invited to participate in the

foreign proceeding. … Further, the Polish

government’s repeated treaty requests

indicate granting the Application would not

offend the policies of Poland, but rather,

would be welcome.

Pet.App. 67a.

The Government argues that the Application is an

attempt to “evade limitations in … the bilateral

MLAT with Poland” (Br. at 44), but the Government

ignores that the district court rejected the contention

that the MLAT displaced Respondents’ rights under

§1782—and rightly so. The U.S.-Poland MLAT does

52

not deprive private individuals of their right to seek

discovery under §1782. It is a treaty governing

mutual requests for assistance by the contracting

governments. By its terms, the MLAT is “intended

solely for mutual legal assistance between [Poland

and the U.S.],” and does not “give rise to a right on the

part of any private person to obtain, suppress, or

exclude any evidence.” U.S.-Poland MLAT, art. 1(4),

July 10, 1996, S. Treaty Doc. No. 105-12, 1996 WL

905552.

Abu Zubaydah is not the Polish government. He is

not acting on behalf of the Polish government. He is

an individual seeking discovery in furtherance of his

personal right under Polish law to submit evidence

regarding crimes committed against him. He cannot

provide his own testimony because the United States

is holding him incommunicado indefinitely and

without charges, a perverse state of affairs that is

unprecedented in our history.

Like all private individuals, Abu Zubaydah may

seek discovery under §1782, even if the foreign state

could also seek the same information through an

MLAT request. See Weber v. Finker, 554 F.3d 1379,

1383-84 (11th Cir. 2009) (U.S.-Switzerland MLAT did

not displace §1782 rights of individual seeking

information for use in Swiss proceeding); Whitney v.

Robertson, 124 U.S. 190, 194 (1888) (“When [a treaty

and a statute] relate to the same subject, the courts

will always endeavor to construe them so as to give

effect to both ….”). Thus, the third Intel factor does

not preclude discovery—at most, it “cuts both ways,”

as the district court found.

53

As to the final Intel factor—whether discovery is

unduly intrusive or burdensome—the court noted

that Mitchell and Jessen (not the Government) were

the targets of the discovery requests, and they had

previously argued before the same judge that

discovery in this area “was not unduly burdensome.”

Pet.App. 69a. Additionally, the Government did not

assert the state secrets privilege, instead raising

“unspecified

hypothetical

concerns

regarding

privilege and classification.” Id. 70a. Therefore, the

district court found determination of this factor

“premature.” Id. 68a. But it concluded that issuance

of the subpoenas was warranted by the weight of the

Intel factors: “The court has exercised its discretion

and determined the Intel factors favor granting the

Application for Discovery.” Id. 70a. That ruling, which

the Government did not appeal, offers no alternative

grounds for reversing the court of appeals’ decision.

The Government’s argument is a paradox. It

contends this Court should reverse the court of

appeals and affirm the district court’s judgment

under an abuse of discretion standard. Yet the

Government ignores and contradicts what the district

court actually held in exercising its discretion—

inviting this Court to undertake de novo review,

without regard to what the district court actually

decided or the arguments the parties presented. If, as

the Government apparently believes, the district

court’s Intel analysis was incomplete or premature,

the proper remedy would be what the court of appeals

actually ordered: to remand for further proceedings,

54

not to undertake that analysis for the first time in this

Court, based on arguments not presented below.56

*

*

*

56 See Ansonia v. Bd. of Educ. v. Philbrook, 479 U.S. 60, 71 (1986)

(judgment of court of appeals remanding case to district court

should be affirmed so that district court may make necessary

factual findings).

55

CONCLUSION

The Court should affirm the Ninth Circuit’s

decision and remand the case for further proceedings

consistent therewith.

Respectfully submitted,

DAVID F. KLEIN

Counsel of Record

david.klein@pillsburylaw.com

JOHN PATRICK CHAMBERLAIN

john.chamberlain@pillsburylaw.com

PILLSBURY WINTHROP SHAW

PITTMAN LLP

1200 Seventeenth Street, NW

Washington, DC 20036

(202) 663-8000

JOSEPH MARGULIES

jm347@cornell.edu

243 Myron Taylor Hall

Cornell University School of Law

Ithaca, NY 14850

(607) 255-6477

Attorneys for Respondents Abu

Zubaydah and Joseph Margulies

AUGUST 13, 2021