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

Supreme Court briefAug 20, 2021

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No. 20-827

In the

UNITED STATES, Petitioner,

ZAYN AL-ABIDIN MUHAMMAD HUSAYN, AKA ABU

ZUBAYDAH, ET AL., Respondents

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF OF THE FLOYD ABRAMS INSTITUTE

FOR FREEDOM OF EXPRESSION, KNIGHT

FIRST AMENDMENT INSTITUTE AT COLUMBIA

UNIVERSITY, CITIZENS FOR RESPONSIBILITY

AND ETHICS IN WASHINGTON, AND NATIONAL

SECURITY ARCHIVE AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

David A. Schulz

Counsel of Record

Michael Linhorst

Stephen Stich

MEDIA FREEDOM AND

INFORMATION ACCESS CLINIC

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511

(203) 432-4992

david.schulz@yale.edu

TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................... iii

INTERESTS OF AMICI CURIAE ..............................1

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT ...............................................................4

I. It Is No Secret That the CIA Detained Abu

Zubaydah in Poland ...........................................4

The CIA’s detention of Abu Zubaydah in

Poland has been widely reported around

the world for years......................................5

An in-depth investigation by the Council of

Europe confirmed the public reports .........8

Poland’s former President confirmed the

public reports ............................................ 11

The European Court of Human Rights

made factual findings that confirm the

public reports ............................................ 12

Readily available records and U.S.

government disclosures further

corroborate the public reports.................. 18

II. The State Secrets Privilege Cannot Properly Be

Invoked to Block Discussion in a Judicial

Proceeding of Publicly Established Facts ....... 22

The Court should not expand the state

secrets privilege to shield discussion of

publicly established facts ......................... 22

Courts should not defer to the executive in

deciding whether a fact is secret ............. 30

CONCLUSION .......................................................... 35

TABLE OF AUTHORITIES

CASES

Abu Zubaydah v. Lithuania, No. 46454/11 (ECtHR

May 31, 2018),

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22

001-183687%22]}......................................................7

ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013)............ 34

Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir.

1983) ....................................................................... 27

Al Nashiri v. Romania, No. 33234 (ECtHR May 31,

2018);

https://hudoc.echr.coe.int/eng#{%22appno%22:[%22

33234/12%22],%22itemid%22:[%22001183685%22]} .............................................................7

Am. Ctr. for Law & Justice v. United States NSA,

474 F. Supp. 3d 109 (D.D.C. 2020) ........................ 27

Baxter v. Palmigiano, 425 U.S. 308 (1976) .............. 16

Cty. Ct. of Ulster Cty., N. Y. v. Allen, 442 U.S. 140

(1979) ...................................................................... 16

Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) ....... 18

ECIMOS, LLC v. Carrier Corp., 971 F.3d 616 (6th

Cir. 2020)................................................................ 34

Ellsberg v. Mitchell, 709 F.2d 51 (D.C. Cir. 1983) ... 33

Frugone v. CIA, 169 F.3d 772 (D.C. Cir. 1999) ........ 25

Gen. Dynamics Corp. v. United States, 563 U.S. 478

(2011) ...................................................................... 23

iii

Husayn (Abu Zubaydah) v. Poland, No. 7511/13

(ECtHR July 24, 2014),

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22

001-146047%22]}............................................ passim

Interstate Circuit v. U.S., 306 U.S. 208 (1939) ......... 16

Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974)

.......................................................................... 21, 24

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

Cir. 1981)................................................................ 25

N.Y. Times Co. v. United States, 403 U.S. 713 (1971)

................................................................................ 29

Tenet v. Doe, 544 U.S. 1 (2005) ........................... 23, 26

Totten v. United States, 92 U.S. 105 (1875) ............. 23

United States v. Nixon, 418 U.S. 683 (1974) ............ 31

United States v. Reynolds, 345 U.S. 1 (1953) ... passim

Weinberger v. Catholic Action of Haw./Peace Educ.

Project, 454 U.S. 139 (1981) .................................. 26

Wilson v. CIA, 586 F.3d 171 (2d Cir. 2009) .............. 25

Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007)............... 34

Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ................... 27

STATUTES

5 U.S.C. § 552(b)(1)(B) .............................................. 25

OTHER AUTHORITIES

26 Wright & Miller, Fed. Prac. & Proc. Evid. (1st ed)

................................................................................ 24

85 Wigmore on Evidence (4th ed. 2021) ................... 32

Adam Goldman, The hidden history of the CIA’s

prison in Poland, WASH. POST. (Jan. 23, 2014),

https://www.washingtonpost.com/world/nationalsecurity/the-hidden-history-of-the-cias-prison-inpoland/2014/01/23/b77f6ea2-7c6f-11e3-95c60a7aa80874bc_story.html........................................8

Black’s Law Dictionary (11th ed. 2019).................... 23

Brian Ross and Richard Esposito, EXCLUSIVE:

Sources Tell ABC News Top Al Qaeda Figures Held

in Secret CIA Prisons, ABC NEWS (Dec. 5, 2005),

http://web.archive.org/web/20051225105556/http:/a

bcnews.go.com:80/WNT/Investigation/story?id=137

5123 ..........................................................................6

Carol Rosenberg, Chains, Shackles and Threats:

Testimony on Torture Takes a Dramatic Turn, N.Y.

TIMES (Jan. 28, 2020),

https://www.nytimes.com/2020/01/28/us/politics/kh

alid-shaikh-mohammed-threat-torture.html..........8

Claudio Fava, Interim Report on the alleged use of

European countries by the CIA for the

transportation and illegal detention of prisoners,

EUROPEAN PARLIAMENT TEMPORARY COMMITTEE ON

THE ALLEGED USE OF EUROPEAN COUNTRIES BY THE

CIA FOR THE TRANSPORTATION AND ILLEGAL

DETENTION OF PRISONERS (June 16, 2006),

https://www.europarl.europa.eu/doceo/document/A6-2006-0213_EN.pdf .............................................. 13

Council of Europe Parliamentary Assembly

Resolution 1562 (June 27 2007),

https://assembly.coe.int/nw/xml/XRef/XrefXML2HTML-en.asp?fileid=17559&lang=en ........ 10

Council of Europe: Secret CIA Prisons Confirmed,

HUMAN RIGHTS WATCH (June 6, 2007),

https://www.hrw.org/news/2007/06/06/councileurope-secret-cia-prisons-confirmed# ................... 10

Counterterrorism Detention and Interrogation

Activities (September 2001 – October 2003), CIA

OFFICE OF INSPECTOR GENERAL (May 7, 2004),

https://fas.org/irp/cia/product/ig-interrog.pdf ....... 19

Crofton Black, Charging Poland for complicity in

alleged US crimes, ALJAZEERA AMERICA (Dec. 10,

2013),

http://america.aljazeera.com/opinions/2013/12/pola

nd-cia-renditionshumanrights.html ..................... 11

Dick Marty, Abuse of state secrecy and national

security: obstacles to parliamentary and judicial

scrutiny of human rights violations, COUNCIL OF

EUROPE PARLIAMENTARY ASSEMBLY (Sept. 7, 2011),

http://assembly.coe.int/CommitteeDocs/2011/State

%20secrecy_MartyE.pdf ........................................ 13

Dick Marty, Alleged secret detentions in Council of

Europe member states, COUNCIL OF EUROPE

PARLIAMENTARY ASSEMBLY COMMITTEE ON LEGAL

AFFAIRS AND HUMAN RIGHTS (Jan. 22, 2006),

https://assembly.coe.int/CommitteeDocs/2006/2006

0124_Jdoc032006_E.pdf .................................... 6, 13

Dick Marty, Secret detentions and illegal transfers of

detainees involving Council of Europe member

states: second report, COUNCIL OF EUROPE

PARLIAMENTARY ASSEMBLY COMMITTEE ON LEGAL

AFFAIRS AND HUMAN RIGHTS (June 7, 2007),

http://assembly.coe.int/committeedocs/2007/emarty

_20070608_noembargo.pdf ............................ passim

Erwin Griswold, Secrets Not Worth Keeping: The

Courts and Classified Information, WASH. POST

(Feb. 15, 1989),

https://www.washingtonpost.com/archive/opinions/

1989/02/15/secrets-not-worth-keeping/a115a1544c6f-41fd-816a-112dd9908115/.............................. 33

European Parliament Resolution P6_TA(2007)0032

(Feb. 14, 2007),

https://www.europarl.europa.eu/doceo/document/T

A-6-2007-0032_EN.html ..........................................7

Hélène Flautre, Report on alleged transportation and

illegal detention of prisoners in European countries

by the CIA: follow-up of the European Parliament

TDIP Committee report, EUROPEAN PARLIAMENT

COMMITTEE ON CIVIL LIBERTIES, JUSTICE AND HOME

AFFAIRS (Feb. 8, 2012),

https://www.europarl.europa.eu/doceo/document/A7-2012-0266_EN.pdf .............................................. 13

Hon. Shira A. Scheindlin & Matthew L. Schwartz,

With All Due Deference: Judicial Responsibility in

A Time of Crisis, 32 HOFSTRA L. REV. 1605 (2004)

................................................................................ 28

Human Rights Watch Statement on U.S. Secret

Detention Facilities in Europe, HUMAN RIGHTS

WATCH (Nov. 6, 2005),

https://www.hrw.org/news/2005/11/06/humanvii

rights-watch-statement-us-secret-detentionfacilities-europe........................................................6

ICRC Report on the Treatment of the Fourteen “High

Value Detainees” in CIA Custody, INT’L COMM. OF

THE RED CROSS (Feb. 14, 2007),

http://www.nybooks.com/media/doc/2010/04/22/icrc

-report.pdf ................................................................7

Jane Meyer, The C.I.A.’s Travel Agent, NEW YORKER

(Oct. 22, 2006),

https://www.newyorker.com/magazine/2006/10/30/t

he-c-i-a-s-travel-agent............................................ 20

Joby Warrick and Walter Pincus, Station Chief Made

Appeal To Destroy CIA Tapes, WASH. POST (Jan.

16, 2008), https://www.washingtonpost.com/wpdyn/content/article/2008/01/15/AR2008011504090.

html ........................................................................ 19

LOUIS FISHER, IN THE NAME OF NATIONAL SECURITY:

UNCHECKED PRESIDENTIAL POWER AND THE

REYNOLDS CASE (2006) .......................................... 32

Louis Fisher, Sources and Limits for Presidential

Power: Perspectives of Robert H. Jackson, 83 ALB.

L. REV. 441 (2020) .................................................. 28

Martin Scheinin et al., Joint study on global

practices in relation to secret detention in the

context of countering terrorism, UNITED NATIONS

HUMAN RIGHTS COUNCIL (May 20, 2010),

https://digitallibrary.un.org/record/677500?ln=en#r

ecord-files-collapse-header .................................... 13

McCormick’s Handbook of the Law of Evidence (E.

Cleary ed. 1972) ..................................................... 33

viii

Merriam Webster (Aug. 2021), https://www.merriamwebster.com/dictionary/secret ............................... 24

Nicholas Watt, Deep in Le Carré country, the remote

Polish airport at heart of CIA flights row, THE

GUARDIAN (Jan. 3, 2007),

https://www.theguardian.com/uk/2007/jan/04/politi

cs.usa......................................................................10

Nina H.B. Jorgensen, Complicity in Torture in a

Time of Terror: Interpreting the European Court of

Human Rights Extraordinary Rendition Cases, 16

CHINESE J. INT’L L. 11 (2017)................................. 11

Oxford English Dictionary (June 2021),

https://www.oed.com/view/Entry/174537 .............. 24

Patryk Wasilewski and Martin M. Sobczyk, Former

Polish President Allowed CIA to Operate Secret

Detention Center, WALL ST. J. (Dec. 10, 2014),

https://www.wsj.com/articles/former-polishpresident-allowed-cia-to-operate-secret-detentioncenter-1418225963 ................................................. 12

Poland's secret CIA prisons: Kwasniewski admits he

knew, BBC NEWS (Dec. 10, 2014),

https://www.bbc.com/news/world-us-canada30418405 ................................................................ 12

Reid Standish, Poland finally comes clean about

secret CIA dungeon on its territory, SYDNEY

MORNING HERALD (Dec. 12, 2014),

https://www.smh.com.au/world/poland-finallycomes-clean-about-secret-cia-dungeon-on-itsterritory-20141212-125g64.html ........................... 12

Report says Poland, Romania hosted secret CIA

prisons, THE IRISH TIMES, (June 9, 2007)

https://www.irishtimes.com/news/report-sayspoland-romania-hosted-secret-cia-prisons1.1209623 ............................................................... 10

Restatement (Third) of Unfair Competition (1995) . 24

Scott Shane, Inside a 9/11 Mastermind’s

Interrogation, N.Y. TIMES (June 22, 2008),

https://www.nytimes.com/2008/06/22/washington/2

2ksm.html ................................................................8

Sebastian Rotella, CIA accused of holding terror

suspects in E. Europe, BALTIMORE SUN (June 9,

2007), https://www.baltimoresun.com/news/bsxpm-2007-06-09-0706090338-story.html .............. 10

Senate Select Committee on Intelligence, Committee

Study of the Central Intelligence Agency’s

Detention and Interrogation Program (Dec. 9,

2014), https://fas.org/irp/congress/2014_rpt/sscirdi.pdf ................................................... 19, 20, 21, 29

Steve Swann, What happened in Europe’s secret CIA

prisons? BBC NEWS (Oct. 6, 2010),

https://www.bbc.com/news/world-11469369 ...........8

Suzanne Goldenberg, Rendition inquiry reveals rift

in CIA ranks, THE GUARDIAN (July 7, 2007),

https://www.theguardian.com/world/2007/jul/17/us

a.ciarendition ......................................................... 10

Terry Mcdermott, Psychologist who waterboarded

self-proclaimed 9/11 plotter says, ‘I would do it

again’, L.A. TIMES, (Jan 21, 2020),

https://www.latimes.com/world-nation/story/202001-21/ksm-guantanamo-911-psychologist ..............8

US hampering probe into secret CIA prison, says

Polish prosecutor, DNA INDIA (June 13, 2015),

https://www.dnaindia.com/world/report-ushampering-probe-into-secret-cia-prison-sayspolish-prosecutor-2095349 .................................... 12

Von John Goetz and Britta Sandberg, New Evidence

of Torture Prison in Poland, SPIEGEL INTL. (Apr.

27, 2009),

https://www.spiegel.de/international/world/europes-special-interrogations-new-evidence-of-tortureprison-in-poland-a-621450.html..............................8

William G. Weaver & Robert M. Pallitto, State

Secrets and Executive Power, 120 Pol. Sci. Q. 85

(2005) ...................................................................... 32

INTERESTS OF AMICI CURIAE 1

Amici are four organizations devoted to

promoting government transparency and public

access to information. These amici all have an

interest ensuring that government information is

only hidden from the public in the most necessary of

circumstances. Their work includes curtailing

unnecessary secrecy and promoting government

transparency. Access to information is particularly

important in the national security and foreign

relations spheres, where democratic accountability is

often the only effective constraint on government

overreach. The amici are:

Floyd Abrams Institute for Freedom of

Expression;

Citizens for Responsibility and Ethics in

Washington;

Knight First Amendment Institute at Columbia

University; and

National Security Archive.

1 The parties have consented to the filing of this brief. No

counsel for a party authored this brief in whole or in part, and

neither counsel for a party nor a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No person other than amicus curiae made a monetary

contribution to the preparation or submission of this brief.

SUMMARY OF THE ARGUMENT

1. The Court of Appeals correctly recognized that

“in order to be a ‘state secret,’ a fact must first be a

‘secret.’” Pet. App. 18a. It is no secret that the CIA

detained Abu Zubaydah in Poland.

The government asserts that deposing two former

CIA contractors for use in a Polish criminal

investigation would reveal the existence of a CIA

black site in Poland and Abu Zubaydah’s detention

there, but these facts have all been publicly

documented and widely reported for years. European

committees and courts have made factual findings

about the CIA site in Poland; human rights

organizations have reported its existence;

investigative news reports and academic publications

have identified Poland as the host of a CIA site. This

fact has even been acknowledged by the former

President of Poland, who led the country at the time

the CIA operated its detention center there.

Anyone with an internet connection can read

myriad reports establishing that the CIA held Abu

Zubaydah in Poland. A skeptical reader can even

find corroborating facts online, such as flight records,

eyewitness accounts, and other materials, many of

which are identified and discussed in documents

declassified and made public by the United States

government itself. There is simply no secret at the

heart of this case.

2. The state secrets privilege exists to protect

“military and state secrets” that must not be

divulged “in the interest of national security.” United

States v. Reynolds, 345 U.S. 1, 7, 10 (1953). It is an

extraordinary restriction on our justice system that

should be limited to the specific circumstance for

which it exists. This Court has never before upheld a

claim of state secrecy to protect information that is

not actually secret.

The government argues that the privilege should

be extended in this case to prevent discussion in a

judicial proceeding of a fact, whether or not that fact

is secret, because the CIA promised an ally it would

not acknowledge that fact. The government rests its

argument on lower court caselaw construing the

national security exemption to the Freedom of

Information Act (FOIA Exemption 1), but even if

those cases correctly construe Exemption 1, there are

good reasons why the state secrets privilege should

not coincide with the FOIA exemption. The state

secrets privilege and Exemption 1 protect different

interests and their assertions have different

consequences. Invoking the FOIA exemption limits

transparency; invoking the state secrets privilege

seriously restricts the functioning of our courts. It

deprives individuals of the ability to assert their

rights and undermines public confidence in our

system of justice.

Upholding the privilege to shield public

information because of a government promise would

cede a broad new power to the executive that could

too easily be abused. An agency can promise to keep

secret virtually any embarrassing or illegal

operation. The very fact that a promise had been

made would then allow the executive to limit judicial

proceedings concerning the activity. The expansion of

the privilege sought by the government is perilous

and should not be allowed.

The Court should instead reaffirm that the state

secrets privilege can only be invoked where a court

has first found two things: (a) the information at

issue is actually secret, and (b) disclosing that secret

information would seriously damage national

security. While a court may give some deference to

the government’s reasonable assessment of national

security harm arising from the disclosure of secret

information, given the executive’s greater expertise

in that realm, there is no proper basis to defer on the

threshold question of whether the information at

issue is secret. That is a question of fact entirely

within the competence of the court to determine.

ARGUMENT

I. It Is No Secret That the CIA Detained Abu

Zubaydah in Poland

There comes a point when the government can no

longer deny what it once kept secret. This point has

long passed with respect to the CIA’s detention of

Abu Zubaydah in Poland.

That the CIA detained Abu Zubaydah at a black

site in Poland from December 2002 to September

2003 has been widely reported across the world for

over fifteen years. Dozens of Polish and American

officials, including Poland’s President during Abu

Zubaydah’s detention there, have confirmed the

existence of the CIA black site in Poland. Flight

records show that known CIA rendition planes

landed at and took off from the Szymany Airport in

Poland on the same dates when, according to the

CIA’s own declassified records, Abu Zubaydah was

being transferred. Szymany Airport officials

witnessed the CIA planes on the dates cited in the

flight records and have reported what they saw.

After examining the relevant public evidence, the

Council of Europe unambiguously named Poland as

hosting a CIA black site where Abu Zubaydah was

held, and the European Court of Human Rights

(“ECtHR”) later held that the public evidence

established beyond a reasonable doubt that Poland

was complicit in the CIA’s torture of Abu Zubaydah.

Such an established and widely known fact as the

detention of Abu Zubaydah at a CIA black site in

Poland is not a secret, under any meaning of that

term. There can be no proper application of a narrow

privilege designed solely to protect state secrets if

there is no secret to protect.

A. The CIA’s detention of Abu Zubaydah in

Poland has been widely reported around

the world for years

Poland was first identified as a CIA black site

host in a report by Human Rights Watch published

in 2005. That report cited flight records of a Boeing

737 that landed at Szymany Airport in Poland on

September 22, 2003, en route to Guantanamo Bay. It

also noted that that same plane was used “to move

several prisoners to and from Europe, Afghanistan,

and the Middle East in 2003 and 2004.” 2

One month later, an investigative report by ABC

News identified Abu Zubaydah as one of the

detainees held at the CIA black site in Poland. 3

ABC’s report cited “[c]urrent and former CIA

officers” and “sources directly involved in setting up

the CIA secret prison system.” Id. ABC removed this

story from its website shortly after its publication,

apparently due to CIA pressure, 4 but the article’s

removal only amplified its reach. It is still easily

accessible in multiple locations online and has been

cited by several official European reports and court

judgments, and in a European Parliament

resolution. 5

2 Human Rights Watch Statement on U.S. Secret Detention

Facilities in Europe, HUMAN RIGHTS WATCH (Nov. 6, 2005),

https://www.hrw.org/news/2005/11/06/human-rights-watchstatement-us-secret-detention-facilities-europe.

3 Brian Ross and Richard Esposito, EXCLUSIVE: Sources Tell

ABC News Top Al Qaeda Figures Held in Secret CIA Prisons,

ABC NEWS (Dec. 5, 2005),

http://web.archive.org/web/20051225105556/http:/abcnews.go.co

m:80/WNT/Investigation/story?id=1375123.

4 See Dick Marty, Alleged secret detentions in Council of Europe

member states, COUNCIL OF EUROPE PARLIAMENTARY ASSEMBLY

COMMITTEE ON LEGAL AFFAIRS AND HUMAN RIGHTS ¶ 6 (Jan. 22,

2006),

https://assembly.coe.int/CommitteeDocs/2006/20060124_Jdoc03

2006_E.pdf (noting that the pressure on ABC to remove the

story was “apparently brought to bear directly by the CIA”)

(“2006 Council Report”).

5 See e.g., id; Council Report, ¶ 7; Husayn (Abu Zubaydah) v.

Poland, No. 7511/13, ¶ 224 (ECtHR July 24, 2014),

These reports were published more than 15 years

ago. The following years brought a flurry of further

investigations and reports based on a wide range of

sources, all confirming the operation of the CIA’s

black site in Poland. For example:

•

The International Committee of the Red Cross

reported in 2007 that Khalid Sheikh Mohamed

(“KSM”) knew he was being detained in

Poland after he was given a water bottle

whose label contained an email address

ending in “.pl.” 6

•

A 2008 New York Times article reported that

KSM was held with “other Qaeda prisoners at

[a] Polish compound,” more specifically

identified as being located at a “secret base

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001146047%22]}; Abu Zubaydah v. Lithuania, No. 46454/11, ¶ 258

(ECtHR May 31, 2018),

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001183687%22]}; Al Nashiri v. Romania, No. 33234, ¶ 237 (ECtHR

May 31, 2018);

https://hudoc.echr.coe.int/eng#{%22appno%22:[%2233234/12%2

2],%22itemid%22:[%22001-183685%22]}; European Parliament

Resolution P6_TA(2007)0032, ¶¶ 150-51 (Feb. 14, 2007),

https://www.europarl.europa.eu/doceo/document/TA-6-20070032_EN.html.

6 ICRC Report on the Treatment of the Fourteen “High Value

Detainees” in CIA Custody, INT’L COMM. OF THE RED CROSS, 35

(Feb. 14, 2007),

http://www.nybooks.com/media/doc/2010/04/22/icrc-report.pdf.

near Szymany Airport, about 100 miles north

of Warsaw.” 7

•

News organizations around the world have

reported KSM’s account of his time in CIA

detention in Poland. 8

B. An in-depth investigation by the Council

of Europe confirmed the public reports

A 2007 governmental inquiry in Europe

confirmed that the CIA held Abu Zubaydah at a

black site in Poland. The Council of Europe

undertook a comprehensive investigation, and its

7 Scott Shane, Inside a 9/11 Mastermind’s Interrogation, N.Y.

TIMES (June 22, 2008),

https://www.nytimes.com/2008/06/22/washington/22ksm.html.

8 See, e.g., Von John Goetz and Britta Sandberg, New Evidence

of Torture Prison in Poland, SPIEGEL INTL. (Apr. 27, 2009),

https://www.spiegel.de/international/world/europe-s-specialinterrogations-new-evidence-of-torture-prison-in-poland-a621450.html; Steve Swann, What happened in Europe’s secret

CIA prisons? BBC NEWS (Oct. 6, 2010),

https://www.bbc.com/news/world-11469369; Adam Goldman,

The hidden history of the CIA’s prison in Poland, WASH. POST

(Jan. 23, 2014),

https://www.washingtonpost.com/world/national-security/thehidden-history-of-the-cias-prison-inpoland/2014/01/23/b77f6ea2-7c6f-11e3-95c60a7aa80874bc_story.html; Terry Mcdermott, Psychologist who

waterboarded self-proclaimed 9/11 plotter says, ‘I would do it

again’, L.A. TIMES (Jan 21, 2020),

https://www.latimes.com/world-nation/story/2020-01-21/ksmguantanamo-911-psychologist; Carol Rosenberg, Chains,

Shackles and Threats: Testimony on Torture Takes a Dramatic

Turn, N.Y. TIMES (Jan. 28, 2020),

https://www.nytimes.com/2020/01/28/us/politics/khalid-shaikhmohammed-threat-torture.html.

report (the “Council Report”) unambiguously

concluded that “secret detention facilities run by the

CIA did exist in Europe from 2003 to 2005, in

particular in Poland and Romania.” 9 The Council

Report named “Poland as the ‘black site’ where both

Abu Zubaydah and Khalid Sheikh Mohamed (KSM)

were held and questioned using ‘enhanced

interrogation techniques.’” Id. ¶ 127. It also

described a “complete consensus on the part of our

key senior sources that [then-]President

[Aleksander] Kwasniewski was the foremost national

authority on the [high-value detainee] programme.

One military intelligence source told us: ‘Listen,

Poland agreed from the top down . . . . From the

President — yes . . . to provide the CIA all it

needed.’” Id. ¶ 176.

The research underlying the Council Report was

diligent, and all of its conclusions “rely upon multiple

sources, which validate and corroborate one

another,” including “over 30 one-time members . . . of

intelligence services in the United States and

Europe.” Id. ¶ 46. The report analyzed numerous

flight records from Eurocontrol, the “supranational

air safety agency,” id. at 184, showing CIA rendition

flights to and from Szymany Airport in Poland,

9 Dick Marty, Secret detentions and illegal transfers of detainees

involving Council of Europe member states: second report,

COUNCIL OF EUROPE PARLIAMENTARY ASSEMBLY COMMITTEE ON

LEGAL AFFAIRS AND HUMAN RIGHTS ¶ 7 (June 7, 2007),

http://assembly.coe.int/committeedocs/2007/emarty_20070608_n

oembargo.pdf.

which were corroborated by eyewitness accounts of

Szymany Airport officials. See id. ¶¶ 167-200. 10

The Council Report was adopted in a 2007

resolution by the Parliamentary Assembly of the

Council of Europe, which “consider[ed] as established

with a high degree of probability that such secret

detention centres operated by the CIA have existed

for some years in [Poland and Romania].” 11 Both the

Council Report and the ensuing resolution generated

significant public attention. 12

10 This eyewitness testimony is consistent with on-the-record

accounts of two former directors of the Szymany Airport

reported in the media. See Nicholas Watt, Deep in Le Carré

country, the remote Polish airport at heart of CIA flights row,

THE GUARDIAN (Jan. 3, 2007),

https://www.theguardian.com/uk/2007/jan/04/politics.usa.

11 Council of Europe Parliamentary Assembly Resolution 1562,

¶ 2 (June 27 2007), https://assembly.coe.int/nw/xml/XRef/XrefXML2HTML-en.asp?fileid=17559&lang=en.

12 See, e.g., Council of Europe: Secret CIA Prisons Confirmed,

HUMAN RIGHTS WATCH (June 6, 2007),

https://www.hrw.org/news/2007/06/06/council-europe-secret-ciaprisons-confirmed#; Sebastian Rotella, CIA accused of holding

terror suspects in E. Europe, BALTIMORE SUN (June 9, 2007),

https://www.baltimoresun.com/news/bs-xpm-2007-06-090706090338-story.html; Report says Poland, Romania hosted

secret CIA prisons, THE IRISH TIMES (June 9, 2007),

https://www.irishtimes.com/news/report-says-poland-romaniahosted-secret-cia-prisons-1.1209623; Suzanne Goldenberg,

Rendition inquiry reveals rift in CIA ranks, THE GUARDIAN

(July 7, 2007),

https://www.theguardian.com/world/2007/jul/17/usa.ciarenditio

C. Poland’s former President confirmed the

public reports

Following multiple investigative reports

concluding that the CIA had operated a detention

facility in Poland, its existence was confirmed in

2012 by Aleksander Kwasniewski, President of

Poland from 1995-2005, who acknowledged that he

had personally authorized the CIA 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.” Husayn (Abu Zubaydah) v. Poland, No.

7511/13, ¶ 234 (ECtHR July 24, 2014),

https://hudoc.echr.coe.int/fre#{%22itemid%22:[%2200

1-146047%22]} (citation omitted) (“Abu Zubaydah v.

Poland”). This acknowledgement was reported

around the world. 13

In a 2014 interview with Polish radio, President

Kwasniewski provided additional detail about the

CIA site, making clear that “Poland took steps to end

the activity at this site and the activity was stopped

13 See, e.g., Crofton Black, Charging Poland for complicity in

alleged US crimes, ALJAZEERA AMERICA (Dec. 10, 2013),

http://america.aljazeera.com/opinions/2013/12/poland-ciarenditionshumanrights.html; Nina H.B. Jorgensen, Complicity

in Torture in a Time of Terror: Interpreting the European Court

of Human Rights Extraordinary Rendition Cases, 16 CHINESE J.

INT’L L. 11, 30 (2017).

at some point.” 14 This interview, too, was reported all

over the world. 15

D. The European Court of Human Rights

made factual findings that confirm the

public reports

The European Court of Human Rights (ECtHR)

in 2015 issued a 215-page decision analyzing the

evidence of a CIA black site in Poland and Abu

Zubaydah’s detention there. 16 It concludes “beyond a

reasonable doubt that . . . from 5 December 2002 to

22 September 2003 [Abu Zubaydah] was detained in

the CIA detention facility in Poland.” 17

14 Poland's secret CIA prisons: Kwasniewski admits he knew,

BBC NEWS (Dec. 10, 2014), https://www.bbc.com/news/world-uscanada-30418405.

15 See, e.g., Patryk Wasilewski and Martin M. Sobczyk, Former

Polish President Allowed CIA to Operate Secret Detention

Center, WALL ST. J. (Dec. 10, 2014),

https://www.wsj.com/articles/former-polish-president-allowedcia-to-operate-secret-detention-center-1418225963; Reid

Standish, Poland finally comes clean about secret CIA dungeon

on its territory, SYDNEY MORNING HERALD (Dec. 12, 2014),

https://www.smh.com.au/world/poland-finally-comes-cleanabout-secret-cia-dungeon-on-its-territory-20141212125g64.html; US hampering probe into secret CIA prison, says

Polish prosecutor, DNA INDIA (June 13, 2015),

https://www.dnaindia.com/world/report-us-hampering-probeinto-secret-cia-prison-says-polish-prosecutor-2095349.

16 See generally Abu Zubaydah v. Poland. The judgment was

issued on July 24, 2014, and the decision does not consider

evidence that became public between that date and the

publication of the decision.

17 Abu Zubaydah v. Poland, ¶ 419.

In making this finding the ECtHR reviewed a

long list of public documents, including the Council

Report, two further reports by the Council of

Europe, 18 two investigations by the European

Parliament, 19 a study by the United Nations, 20

reports of independent investigations by multiple

NGOs (including, for example, Amnesty

International, the International Committee of the

Red Cross, and Human Rights Watch), and a 2012

interview of President Kwasniewski. 21

18 See 2006 Council Report; Dick Marty, Abuse of state secrecy

and national security: obstacles to parliamentary and judicial

scrutiny of human rights violations, COUNCIL OF EUROPE

PARLIAMENTARY ASSEMBLY (Sept. 7, 2011),

http://assembly.coe.int/CommitteeDocs/2011/State%20secrecy_

MartyE.pdf.

19 See Claudio Fava, Interim Report on the alleged use of

European countries by the CIA for the transportation and illegal

detention of prisoners, EUROPEAN PARLIAMENT TEMPORARY

COMMITTEE ON THE ALLEGED USE OF EUROPEAN COUNTRIES BY

THE CIA FOR THE TRANSPORTATION AND ILLEGAL DETENTION OF

PRISONERS (June 16, 2006),

https://www.europarl.europa.eu/doceo/document/A-6-20060213_EN.pdf; Hélène Flautre, Report on alleged transportation

and illegal detention of prisoners in European countries by the

CIA: follow-up of the European Parliament TDIP Committee

report, EUROPEAN PARLIAMENT COMMITTEE ON CIVIL LIBERTIES,

JUSTICE AND HOME AFFAIRS (Feb. 8, 2012),

https://www.europarl.europa.eu/doceo/document/A-7-20120266_EN.pdf.

20 See Martin Scheinin et al., Joint study on global practices in

relation to secret detention in the context of countering terrorism,

UNITED NATIONS HUMAN RIGHTS COUNCIL (May 20, 2010),

https://digitallibrary.un.org/record/677500?ln=en#record-filescollapse-header.

21See Abu Zubaydah v. Poland, ¶ 234.

The ECtHR considered far more evidence than

had been available at the time the Council of Europe

prepared its report, and it was all consistent with the

conclusion of the Council Report. For instance,

President Kwasniewski made his first public

acknowledgment of the CIA site in Poland five years

after the Council Report tied him to its approval.

Similarly, flight records obtained through a Polish

freedom of information request in 2010 bolstered the

Eurocontrol records on which the Council Report

relied. Id. ¶ 286.

The ECtHR also considered new types of

evidence. For instance, it cited declassified records

from the CIA and the Department of Justice showing

that Abu Zubaydah was transferred between black

sites on the very same dates as the rendition flights

noted in the flight records and observed by the

Szymany Airport witnesses. See id., ¶¶ 402-408. The

ECtHR also considered the sworn testimony of a

Polish senator, Jozef Pinior, who testified on

December 2, 2013 about a document purporting to

regulate the U.S.-Poland relationship with respect to

the black site, which “the American side did not

sign.” Id., ¶¶ 298, 328.

Considering the massive amount of consistent

evidence, the ECtHR found “beyond a reasonable

doubt” that:

(1) on 5 December 2002 [Abu Zubaydah] arrived

in Szymany on board the CIA rendition

aircraft N63MU;

(2) from 5 December 2002 to 22 September 2003

[Abu Zubaydah] was detained in the CIA

detention facility in Poland . . .

(3) during his detention in Poland under the HVD

Programme he was ‘debriefed’ by the CIA

interrogation team and subjected to the

standard procedures and treatment routinely

applied to High-Value Detainees in the CIA

custody, as defined in the relevant CIA

documents;

(4) on 22 September 2003 [Abu Zubaydah] was

transferred by the CIA from Poland to another

CIA secret detention facility elsewhere on

board the rendition aircraft N313P.

Id., ¶ 419.

The government offers three reasons this Court

should disregard the ECtHR’s judgment. None is

persuasive.

First, the government argues that the ECtHR’s

use of the “reasonable doubt” standard is “not

similar” to the reasonable doubt standard under our

Constitution, but gives no reason why a standard

required for a criminal conviction should control the

government’s claim of state secrecy, as opposed to

other standards used by courts in assessing doubt. G.

Br. 35. Nor is it clear that the ECtHR’s standard is

materially different from our reasonable doubt

standard. The government notes that the ECtHR

drew “such inferences as may flow from the facts and

the parties’ submissions” and weighed Poland’s

failure to “contest the admissibility, accuracy or

credibility of the relevant materials and

testimonies.” Abu Zubaydah v. Poland, §§ 372, 394.

But, as this Court noted in a criminal case,

“[i]nferences and presumptions are a staple of our

adversary system of factfinding.” Cty. Ct. of Ulster

Cty., N. Y. v. Allen, 442 U.S. 140, 156 (1979).

The government also assails the “adverse

inferences” the ECtHR drew from Poland’s refusal to

submit evidence. G. Br. 36. But the ECtHR makes

plain it did not rely on any such inferences in

concluding that “the Polish authorities knew that the

CIA used its airport in Szymany and the Stare

Kiejkuty military base for the purposes of detaining

secretly terrorist suspects captured within the ‘war

on terror’ operation by the U.S. authorities.” Abu

Zubaydah v. Poland, ¶ 443.

Further, any inferences the ECtHR did draw from

Poland’s refusal to produce documents are commonsense: “The production of weak evidence when strong

is available can lead only to the conclusion that the

strong would have been adverse. Silence then

becomes evidence of the most convincing character.”

Interstate Circuit v. U.S., 306 U.S. 208, 226 (1939).

As this Court has held, restricting the use of such

adverse inferences in criminal cases “derogates

rather than improves the chances for accurate

decisions,” and those restrictions that do exist are

justified solely by the privilege against selfincrimination. Baxter v. Palmigiano, 425 U.S. 308,

319 (1976). The ECtHR’s limited use of adverse

inferences does not in any way undermine its holding

beyond a reasonable doubt that the CIA detained

Abu Zubaydah at a black site in Poland.

Second, the government argues that this Court

should disregard the ECtHR’s findings because

Poland refused to submit certain documents to that

court, and it “cannot be the law” that refusing to

confirm allegations “to protect U.S. state secrets” can

convert the allegations into public knowledge and

thereby “destroy the U.S. state secrets privilege by

trying to protect it.” G. Br. 35-36 (citation omitted).

Apart from this argument’s circularity, 22 it misstates

the facts. Poland’s refusal to cooperate with the

ECtHR had nothing to do with protecting U.S. state

secrets. As the ECtHR explained, Poland invoked “no

national-security related arguments . . . in response

to the Court’s evidential requests.” Abu Zubaydah v.

Poland, ¶ 361. Rather, Poland refused to produce

evidence to protect an “investigation into [Abu

Zubaydah’s] allegations of torture and secret

detention in Poland.” Id.

Third, the government seizes on the ECtHR’s

acknowledgment that it relied on some

circumstantial evidence. G. Br. 36. But this Court

has “never questioned the sufficiency of

circumstantial evidence in support of a criminal

conviction, even though proof beyond a reasonable

doubt is required.” Desert Palace, Inc. v. Costa, 539

22 The government simultaneously argues that the location of

its base must be kept secret to protect its promise to Poland,

and that Poland refused to disclose records to the ECtHR to

protect a secret for the CIA.

U.S. 90, 100 (2003). Moreover, no evidence could be

less circumstantial than President Kwasniewski’s

admission that he personally oversaw the black site.

None of the government’s objections, individually

or collectively, undermines the ECtHR’s findings.

This Court should acknowledge the European court’s

decision for what it is: a factual finding beyond a

reasonable doubt that the CIA detained Abu

Zubaydah in a black site in Poland. To pretend that

this fact remains secret would be little more than

Orwellian double-speak.

E. Readily available records and U.S.

government disclosures further

corroborate the public reports

Mounds of documentary evidence, much of it

declassified by the U.S. government, independently

supports the fact of Abu Zubaydah’s detention in

Poland. The ECtHR analyzed much of this evidence,

and additional evidence made public after its

decision only confirms the court’s conclusions.

Flight records.

Multiple sources confirm the timing of CIA flights

bringing detainees in and out of Poland, and align

those flights with the movement of Abu Zubaydah

and other detainees as officially acknowledged by the

CIA.

Records released by the Polish Border Guard and

Eurocontrol show that a U.S.-registered plane,

N63MU, traveled from Bangkok, Thailand to

Szymany Airport in Poland from December 4 to

December 5, 2002. Abu Zubaydah v. Poland, ¶ 94. 23

A report by the Senate Select Committee on

Intelligence 24 and a declassified report from the

CIA’s Office of Inspector General, 25 both made public

after the ECtHR’s judgment, confirm that Abu

Zubaydah was transferred from one CIA site to

another on December 4-5, 2002—the dates of the

Thailand-to-Poland rendition as found by the

ECtHR.

Similar evidence documents the CIA flight that

transported Abu Zubaydah out of Poland. Flight

records from the Polish Border Guard and

23 Thailand has been widely reported as housing a CIA black

site from August to December 2002. See, e.g., Joby Warrick and

Walter Pincus, Station Chief Made Appeal To Destroy CIA

Tapes, WASH. POST (Jan. 16, 2008),

https://www.washingtonpost.com/wpdyn/content/article/2008/01/15/AR2008011504090.html (relying

on “interviews with more than two dozen current and former

U.S. officials familiar with the debate”).

24 Senate Select Committee on Intelligence, Committee Study of

the Central Intelligence Agency’s Detention and Interrogation

Program, 67 n.338 (Dec. 9, 2014),

https://fas.org/irp/congress/2014_rpt/ssci-rdi.pdf (“SSCI Report”)

(noting that Abd al-Rahim al-Nashiri received his first

enhanced interrogation at Detention Site Blue on December 5,

2002); id. at 74 (noting that al-Nashiri and Abu Zubaydah were

transferred together in December 2002).

25 Counterterrorism Detention and Interrogation Activities

(September 2001 – October 2003), CIA OFFICE OF INSPECTOR

GENERAL, 41 (May 7, 2004), https://fas.org/irp/cia/product/iginterrog.pdf (noting that al-Nashiri was subjected to enhanced

interrogation on December 4, 2002).

Eurocontrol show that a Boeing 737 registered as

N313P landed in Szymany Airport on September 22,

2003, destined for Guantanamo Bay. Abu Zubaydah

v. Poland, ¶ 109. This flight, plus several others out

of Szymany Airport, was organized by Jeppesen

International Trip Planning, see Council Report

¶¶ 182-89, whose managing director admitted, “We

do all of the extraordinary rendition flights—you

know, the torture flights.” 26

The SSCI Report again confirms that this flight

transported Abu Zubaydah out of Poland. It also

describes the site to which Abu Zubaydah had been

transported in December 2002 as closing in “[the fall

of] 2003,” SSCI Report at 74 (alteration in original),

and notes that the CIA began detaining people in

Guantanamo Bay, the flight’s destination,

“[b]eginning in September 2003,” id. at 140.

Poland’s agreement to the CIA black site.

The SSCI Report also reinforces President

Kwasniewski’s acknowledgement that he approved

the site and the sworn testimony by Polish Senator

Pinior concerning the existence of a written

document purporting to regulate the U.S.-Poland

black-site relationship. See Section I.D, supra. The

SSCI Report describes just such a document—

identified as a “Memorandum of Understanding”

that “the CIA ultimately refused to sign”—and states

that this agreement was proposed by the country to

26 Jane Meyer, The C.I.A.’s Travel Agent, NEW YORKER (Oct. 22,

2006), https://www.newyorker.com/magazine/2006/10/30/the-c-ia-s-travel-agent.

which Abu Zubaydah was transferred in December

2002. SSCI Report at 74.

The SSCI Report in multiple ways thus

corroborates through officially acknowledged facts

the ECtHR’s finding that Abu Zubaydah was

detained by the CIA at a black site in Poland. 27

*****

That Abu Zubaydah was held at a CIA black site

in Poland has been widely known throughout the

world for more than 15 years. A multitude of

corroborating evidence backs up the public reports,

leaving no “important element of doubt about the

veracity of the information.” G. Br. 36 (citation

omitted). The public documentation makes Abu

Zubaydah’s detention in Poland undeniably a matter

“of public knowledge.” Kewanee Oil Co. v. Bicron

Corp., 416 U.S. 470, 475 (1974). The state secrets

privilege—with its extraordinary constraints on our

system of justice— cannot properly be invoked to

27 The government points to only a single purported

inconsistency between the 525-page SSCI Report and the 215page ECtHR judgment. See G. Br. 7. According to the

government, the ECtHR’s conclusion that Abu Zubaydah was

tortured in Poland conflicts with the SSCI Report, which says

that “the use of the CIA’s enhanced interrogation techniques

ceased on August 30, 2002, when Abu Zubaydah received

clothing.” SSCI Report at 231 n.1,316. Read in context, though,

the SSCI Report states only that a particular sequence of

enhanced interrogations ended on that date. It is silent on

whether the CIA resumed them later. In any event, the

government’s argument does not alter the public’s knowledge of

Abu Zubaydah’s presence at the Polish site.

prevent depositions that may, in part, concern such

public facts.

II. The State Secrets Privilege Cannot Properly

Be Invoked to Block Discussion in a Judicial

Proceeding of Publicly Established Facts

The state secrets privilege exists to keep secret,

sensitive information from enemy hands. This Court

has never before held that widely reported

information, corroborated by U.S. government

disclosures, can support an assertion of the privilege.

Expanding the privilege here as the government

urges would provide an open-ended tool for the

executive to prevent individuals from vindicating

their rights in cases touching on foreign activities

that it would prefer were not explored in a judicial

proceeding.

Instead, this Court should affirm that the state

secrets privilege exists to protect information that

(1) is actually secret, and (2) would harm national

security if disclosed. While it may be appropriate for

courts to give some deference to the executive’s

reasonable assessments of national security harm,

the threshold question of whether the information at

issue is secret is one that courts are entirely suited to

determine for themselves.

A. The Court should not expand the state

secrets privilege to shield discussion of

publicly established facts

The purpose of the state secrets privilege is to

shield information whose disclosure could harm

national security by revealing an unknown fact.

Reynolds, 345 U.S. at 10. This is evident from the

facts of every decision of this Court upholding an

assertion of the state secrets privilege. In each

instance, the information at issue was not publicly

known, and the government convinced the Court

that disclosure would gravely harm national

security. 28 Asserting the privilege does not serve its

purpose if the information the government seeks to

shield is widely known—such information cannot be

a state secret because it is not secret.

Dictionary definitions agree. A secret is

“[s]omething that is kept from the knowledge of

others,” Black’s Law Dictionary (11th ed. 2019),

“[s]omething unknown or unrevealed,” Oxford

28 See, e.g., Gen. Dynamics Corp. v. United States, 563 U.S. 478,

481-82 (2011) (“The design, materials, and manufacturing

process for two prior stealth aircraft operated by the Air

Force—the B-2 and the F-117A—are some of the Government’s

most closely guarded military secrets.”); Tenet v. Doe, 544 U.S.

1, 11 (2005) (“The possibility that a suit may proceed and an

espionage relationship may be revealed, if the state secrets

privilege is found not to apply, is unacceptable: Even a small

chance that some court will order disclosure of a source’s

identity could well impair intelligence gathering and cause

sources to close up like a clam.”) (internal quotation marks

omitted); Reynolds, 345 U.S. at 10 (“It is equally apparent that

these electronic devices must be kept secret if their full military

advantage is to be exploited in the national interests.”); Totten

v. United States, 92 U.S. 105, 106-07 (1875) (“If upon [espionage

contracts] an action against the government could be

maintained in the Court of Claims, whenever an agent should

deem himself entitled to greater or different compensation than

that awarded to him, the whole service in any case, and the

manner of its discharge, with the details of dealings with

individuals and officers, might be exposed, to the serious

detriment of the public.”).

English Dictionary (June 2021),

https://www.oed.com/view/Entry/174537; something

“kept from knowledge,” Merriam Webster (Aug.

2021), https://www.merriamwebster.com/dictionary/secret. Once something

becomes widely known, any continuing effort to

maintain its confidentiality does not transform it

back into a secret. It is no longer “hidden from

knowledge of others.” It is thus not surprising that

this Court has never applied the state secrets

privilege to shield publicly known facts.

This Court’s trade secrets jurisprudence similarly

makes clear that something cannot be a trade secret

if it is not a secret. Kewanee Oil Co. v. Bicron Corp.,

416 U.S. 470, 475 (1974). (“The subject of a trade

secret must be secret.”); see also 26 Wright & Miller,

FED. PRAC. & PROC. EVID. § 5665 (1st ed) (observing

that state secret doctrine is more analogous to trade

secrets than to other evidentiary privileges because

both state and trade secrets protect the substance of

the secret, not only the fact that the secret was

communicated to another party). In the trade secrets

realm, information is not a secret if it is “of public

knowledge.” Kewanee Oil Co., 416 U.S. at 475; see

also, e.g., Restatement (Third) of Unfair Competition

§ 39 cmt. f (1995) (“Information that is generally

known . . . is not protectable as a trade secret.”).

So too here. Information cannot be a state secret

if it is not secret.

The government seeks a different and novel

application of the privilege. It urges the Court to

extend the privilege to the disclosure of any

information that would result in “a breach of the

trust on which the CIA’s clandestine relationships

with foreign governments are based.” G. Br. at 27

(internal quotation marks omitted). The CIA does

not just insist on its right to refuse to confirm or

deny a fact it has promised to keep secret, but the

right to shut down depositions that would explore

facts the CIA does not want to acknowledge, and to

do so notwithstanding that the “secret” facts are

widely and publicly known.

To support its proposed expansion of the

privilege, the government relies on lower court cases

interpreting Exemption 1 of the Freedom of

Information Act (FOIA), which exempts information

that has been “properly classified.” See 5 U.S.C.

§ 552(b)(1)(B). The cases cited by the government

hold that public availability of information can

defeat an agency’s claim that the information

remains properly classified and thus properly

withheld under Exemption 1 only if that information

has been “officially acknowledged” by the agency that

classified the information. See, e.g., Frugone v. CIA,

169 F.3d 772, 774-75 (D.C. Cir. 1999); Military Audit

Project v. Casey, 656 F.2d 724, 741-45 (D.C. Cir.

1981). Under this reading, Exemption 1 preserves an

agency’s “options of deniability” of publicly reported

facts. Wilson v. CIA, 586 F.3d 171, 195 (2d Cir. 2009).

Just as this Court has never before upheld an

invocation of the state secrets privilege to protect an

agency’s options of deniability, it has never approved

the broad construction of Exemption 1 as doing so.

And even if this interpretation of FOIA is sound,

there are good reasons why the state secrets

privilege should not coincide with the FOIA

exemption. The state secrets privilege and

Exemption 1 protect different interests and their

assertions have different consequences.

FOIA’s purpose is to promote government

transparency, and in crafting its exemptions

Congress “balance[d] the public’s need for access to

official information with the Government’s need for

confidentiality.” Weinberger v. Catholic Action of

Haw./Peace Educ. Project, 454 U.S. 139, 144 (1981).

The common-law state secrets doctrine, on the other

hand, balances the government’s need for

confidentiality with different interests: the search for

truth in adversarial litigation, parties’ abilities to

properly assert or defend their rights and, in some

circumstances, access to the courts. 29 The

consequences of asserting the state secrets privilege

are thus very different and far more threatening to

our constitutional system than those of asserting

Exemption 1.

29 The government assumes that the state secrets privilege

could justify dismissal of an action, but this Court has never

allowed dismissal on state secrets grounds outside cases

involving government contracts. Compare, e.g., Tenet, 544 U.S.

at 8 (dismissing action where “success depends upon the

existence of [a] secret espionage relationship with the

government”) with Reynolds, 345 U.S. at 11 (precluding

discovery of accident investigation report in tort suit).

While acknowledging 30 a fact promised to be kept

secret might frustrate an ally, such indirect

“national-security concerns must not become a

talisman used to ward off inconvenient claims.”

Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017). The

costs to our justice system are too high to extend the

state secrets privilege to information that is publicly

known, confirmed by multiple governmental and

non-governmental actors, and readily corroborated

by public records. The harsh consequences of

invoking the state secrets doctrine can only be

justified to protect information that is secret and

national security requires to remain secret.

Moreover, upholding an invocation of the state

secrets privilege over information that has become

fully public simply to uphold a decades’-old

government promise of secrecy would cede to the

executive broad new authority to hamstring judicial

proceedings that could too easily be abused. A

government agency can promise an ally to keep

secret virtually any embarrassing or potentially

illegal operation; the fact that the promise was made

would then justify the executive to prevent any

30 Under FOIA precedent, testimony from former CIA

consultants would not necessarily even be considered an official

acknowledgement. See, e.g., Afshar v. Dep’t of State, 702 F.2d

1125, 1133 (D.C. Cir. 1983) (holding that a book written by the

former head of the CIA’s Middle East Department was not “an

official and documented disclosure”); Am. Ctr. for Law & Justice

v. United States NSA, 474 F. Supp. 3d 109, 122 (D.D.C. 2020)

(“Courts have consistently found that statements by former

agency officials are not official agency disclosures.”) (collecting

cases).

judicial proceeding that would disclose information

about the embarrassing or illegal activity.

Indeed, pretextual invocation of the privilege has

marred the state secrets doctrine since its modern

inception in Reynolds. In that seminal case, three

widows sued the government for negligence after

their husbands died in an Air Force plane crash.

Reynolds, 345 U.S. at 3. The plaintiffs sought the Air

Force’s accident investigation report, but the

government refused to produce it, even in camera,

claiming that it contained information about secret

electronic equipment that was being tested on the

flight. Id. at 5. The Court in Reynolds agreed that

the government could withhold the information

because its disclosure would reveal secrets that could

harm national security. Fifty years later,

declassification of the report revealed that it actually

contained “no military secrets,” but did draw highly

embarrassing conclusions about government

negligence that invocation of the privilege effectively

kept secret. Hon. Shira A. Scheindlin & Matthew L.

Schwartz, With All Due Deference: Judicial

Responsibility in A Time of Crisis, 32 HOFSTRA L.

REV. 1605, 1662 n.103 (2004); Louis Fisher, Sources

and Limits for Presidential Power: Perspectives of

Robert H. Jackson, 83 ALB. L. REV. 441, 493 (2020).

The risk of such a pretextual claim of privilege is

especially great in this case, as the CIA has

repeatedly misled the public about its high-value

detainee program. The Senate Select Committee on

Intelligence found, for example, that “[t]he

interrogations of CIA detainees were brutal and far

worse than the CIA represented to policymakers and

others,” “[t]he conditions of confinement for CIA

detainees were harsher than the CIA had

represented,” “[t]he CIA coordinated the release of

classified information to the media, including

inaccurate information concerning the effectiveness

of the CIA’s enhanced interrogation techniques,” and

“[t]he CIA’s claims about the number of detainees

held and subjected to its enhanced interrogation

techniques were inaccurate.” 31 In these

circumstances, invocation of the privilege may well

be nothing more than an excuse to prevent further

inquiry into activities of questionable legality that

the CIA would prefer to keep from public attention.

The expanded privilege the government asks this

Court to authorize is particularly dangerous because,

in the realm of national security, “the absence of the

governmental checks and balances present in other

areas of our national life” makes an informed

citizenry “the only effective restraint upon executive

policy and power.” N.Y. Times Co. v. United States,

403 U.S. 713, 728 (1971) (Stewart, J., concurring).

Finally, even if the government’s expansion of the

privilege could be justified in some contexts, it is not

justified on the facts of this case. Given the

overwhelming public evidence, the findings of

committees and courts in Europe, the

acknowledgement by Polish authorities, and the

corroborating facts declassified by the U.S.

31 SSCI Report, Findings and Conclusions at 2-17.

government, upholding a claim of privilege here

would serve no proper purpose.

B. Courts should not defer to the executive

in deciding whether a fact is secret

Given the important interests at stake when the

state secrets privilege is asserted, “[t]he court itself

must determine whether the circumstances are

appropriate for the claim of privilege.” Reynolds, 345

U.S. at 8. This requires it to determine first that the

information at issue is actually secret, and second,

that disclosing the unknown information will

seriously harm national security. See id. at 10

(holding that the privilege applies only when

disclosure “will expose military matters” that “in the

interest of national security, should not be

divulged.”).

While some deference to the executive’s

reasonable assessment of harm is appropriate,

complete deference to its assertion of privilege is not.

The courts must maintain their independence and

perform their constitutional function as a check on

the executive. On the initial question of whether

information is secret, the judiciary owes no deference

to the executive, as courts are fully able to determine

for themselves whether a fact is a secret.

1. Courts do not owe, and should not grant,

complete deference to the executive’s claims

of state secrecy.

The government is off base in claiming that

Article III courts must defer to the executive

branch’s views on secrecy in this context. G. Br. at

22-26. As the Court made clear in Reynolds, it is for

a court to decide whether the privilege applies

because “[i]t is the judge who is in control of the trial,

not the executive,” and therefore “[j]udicial control

over the evidence in a case cannot be abdicated to the

caprice of executive officers.” Reynolds, 345 U.S. at 8

n.21, 9-10 (internal quotation marks and citations

omitted). Reynolds also made clear that the

government must “satisfy the court” that the

contested information would “expose military

matters which, in the interest of national security,

should not be divulged.” Id. at 10. This requirement

to “satisfy the court” is a far cry from the

government’s claim that courts must show the

executive the “utmost deference.” 32

Reynolds’s approach maintains a proper

separation of powers. Deferring on both the

substantive questions of whether the information is

secret and whether its disclosure could cause harm

would cede to the executive branch far too much

authority to control what information goes before the

court and what matters may even be heard,

abandoning key components of judicial

independence. LOUIS FISHER, IN THE NAME OF

NATIONAL SECURITY: UNCHECKED PRESIDENTIAL

32 The “utmost deference” language is from United States v.

Nixon, which had nothing to do with the state secrets privilege.

See United States v. Nixon, 418 U.S. 683, 712 n.19 (1974) (“We

are not here concerned with . . . the President’s interest in

preserving state secrets.”).

POWER AND THE REYNOLDS CASE 212, 245 (2006).

Indeed, Reynolds considered such a scheme and

rejected it: “The court itself must determine whether

the circumstances are appropriate for the claim of

privilege.” Reynolds, 345 U.S. at 8 (emphasis added);

see also 85 WIGMORE ON EVIDENCE § 2379(g) (4th ed.

2021) (favorably comparing the more limited

deference under Reynolds to the deference accorded

the invocation of the state secrets privilege in

England, where “the political minister determines

the existence of the privilege; the court passes only

on the question whether the claim has been made by

the proper person and in the proper form”).

Excessive deference would also imperil the rights

of litigants and encourage needless secrecy by the

executive. By foreclosing litigants from obtaining

information necessary to their claims, greater

deference would “undermine[] the judiciary’s duty to

assure fairness in the courtroom and to decide what

evidence may be introduced.” Fisher, supra, at 245.

Moreover, an executive branch that knows its secrecy

claims will not be critically evaluated would have an

“incentive . . . to use the privilege to avoid

embarrassment, to handicap political enemies, and

to prevent criminal investigation of administrative

action.” William G. Weaver & Robert M. Pallitto,

State Secrets and Executive Power, 120 POL. SCI. Q.

85, 90 (2005).

Abuse of the privilege can take place even

without mischief. Commentators widely agree that

officials within the executive branch have little

incentive to permit disclosure; from the perspective

of a government official, it is always a safer choice to

keep the information secret. 33 With the absence of

internal incentives for disclosure, “[a] court which

abdicates its inherent function of determining the

facts upon which the admissibility of evidence

depends will furnish to bureaucratic officials too

ample opportunities for abusing the privilege.” 85

WIGMORE ON EVIDENCE § 2379(g) (4th ed. 2021).

Thus, while some deference to the executive’s claims

about possible national security harm from the

exposure of a secret may be justified, complete

submission to the executive is not.

33 “The head of an executive department[’s] . . . official habit

and leaning tend to sway him toward a minimizing of the

interest of the individual. Under the normal administrative

routine the question will come to him with recommendations

from cautious subordinates against disclosure and in the press

of business the chief is likely to approve the recommendation

about such a seemingly minor matter without much

independent consideration.” Ellsberg v. Mitchell, 709 F.2d 51,

58 (D.C. Cir. 1983) (quoting MCCORMICK’S HANDBOOK OF THE

LAW OF EVIDENCE 235 (E. Cleary ed. 1972); see also Erwin

Griswold, Secrets Not Worth Keeping: The Courts and Classified

Information, WASH. POST (Feb. 15, 1989),

https://www.washingtonpost.com/archive/opinions/1989/02/15/se

crets-not-worth-keeping/a115a154-4c6f-41fd-816a112dd9908115/ (“It quickly becomes apparent to any person

who has considerable experience with classified material that

there is massive overclassification and that the principal

concern of the classifiers is not with national security, but

rather with governmental embarrassment of one sort or

another.”).

2. Courts are competent to determine without

deference whether information is secret.

Whatever deference courts should show the

executive on whether disclosing a secret would harm

national security, they owe no deference to the

government’s claim that information is secret in the

first place. Whether a fact is widely known does not

require national security expertise. Courts are fully

capable of determining whether a fact is widely

known.

Courts are no strangers to determining the state

of public knowledge without deferring to the

government. They do so regularly in trade secrets

cases, see, e.g., ECIMOS, LLC v. Carrier Corp., 971

F.3d 616, 643 (6th Cir. 2020), and in Freedom of

Information Act cases. For instance, in ACLU v. CIA,

a unanimous D.C. Circuit panel rejected the CIA’s

Glomar response, refusing to confirm or deny the

existence of documents reflecting the CIA’s interest

in drone strikes, because that interest was public

knowledge. After examining the state of the public

record, the court concluded that “it is neither logical

nor plausible for the CIA to maintain that it would

reveal anything not already in the public domain to

say that the [CIA] at least has an intelligence

interest in such strikes.” ACLU v. CIA, 710 F.3d 422,

430 (D.C. Cir. 2013) (internal quotation marks

omitted). The court did not defer to the CIA on this

point. See id. at 428-32; see also, e.g., Wolf v. CIA,

473 F.3d 370, 379 (D.C. Cir. 2007) (holding, without

deferring to the government, that the existence of

CIA records on a foreign national was public

knowledge).

The Court owes no deference to the government

as to whether the information is a secret.

CONCLUSION

For the foregoing reasons, this Court should hold

that the fact Abu Zubaydah was held at a CIA black

site in Poland is not secret and therefore cannot be a

state secret.

Respectfully submitted,

David A. Schulz

Counsel of Record

Michael Linhorst

Stephen Stich

MEDIA FREEDOM AND

INFORMATION ACCESS CLINIC

ABRAMS INSTITUTE

YALE LAW SCHOOL 34

127 Wall Street

New Haven, CT 06511

Tel: (203) 432-4992

Email: david.schulz@yale.edu

34 This brief does not purport to express the views of Yale Law

School, if any.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.