United States v. Zubaydah

Following the September 11, 2001, terrorist attacks, the Central Intelligence Agency (CIA) came to believe that Abu Zubaydah (plaintiff) was an al-Qaeda leader with knowledge of future attacks. Zubaydah claimed that in 2002 and 2003, he was held at a CIA detention site in Poland and subjected to enhanced-interrogation techniques. In 2010, while a detainee at Guantánamo Bay Naval Base, Zubaydah filed a criminal suit in Poland against any Polish nationals involved in his mistreatment at the alleged Polish site. Zubaydah filed a discovery application in a federal district court under 28 U.S.C. § 1782, which allowed district courts to order the production of evidence for a foreign proceeding. Specifically, Zubaydah sought permission to subpoena two former CIA contractors, James Mitchell and John Jessen, regarding the alleged CIA facility in Poland and Zubaydah’s treatment there. The federal government intervened, moving to dismiss the action on the basis that the requested discovery was protected by the state-secrets privilege. Although much information regarding the CIA’s 2002 and 2003 operations had been declassified and there was pervasive speculation about the CIA’s activity in Poland, the government had never officially confirmed or denied the existence of a Polish facility. The government argued that such official confirmation or denial, which would be inherent in Mitchell and Jessen’s discovery responses, would undermine national security because foreign governments would not enter clandestine relations with the United States unless the United States could be trusted to protect confidentiality. The district court dismissed the discovery request. The Ninth Circuit reversed, holding that discovery could proceed. The government appealed.