The case of the day is United States v. Zubaydah (S. Ct. 2022). It’s a Section 1782 case, and it’s the first time the Supreme Court has cited the statute since 2007. I get nervous when something like this happens; what if the Court screws things up? That was certainly my worry when the Water Splash came before the Court, and it’s the same worry whenever an appellate court dips its toes into the world of international judicial assistance. But while today’s case is quite interesting, it has essentially no implications for ordinary Section 1782 practice. If you were holding your breath, you may resume breathing!
After 9/11, the Pakistani authorities captured Abu Zubaydah and handed him over to the CIA, which believed he was an Al Qaeda lieutenant likely to have information about future terrorist attacks. The CIA tortured him at an overseas detention cite, subjecting him to waterboarding and other so-called “enhanced interrogation” techniques. In December 2002, the CIA transferred him to another detention center. The government has never disclosed the location, but the European Court of Human Rights found it was in Poland, and other publicly available sources say the same thing. The government transferred Zubaydah to Guantanamo Bay, where he remains today.
After the ECHR found that Poland had failed to investigate the human rights violations that had occurred on Polish territory, Poland began a criminal investigation. It sought evidence from the United States government under the two countries’ MLAT, but the US government refused. Zubaydah’s lawyers then brought a Section 1782 application seeking leave to take testimony and obtain documents from James Mitchell and John Jessen, the two contractors who designed the “enhanced interrogation” program. The government intervened and asserted the state secrets privilege, arguing that a response to the subpoena would confirm or deny whether Poland had cooperated with the CIA, which would significantly harm national security.
The District Court quashed the subpoenas. It did not find that disclosure that the detention site was in Poland would itself cause a grave risk to national security, but it did find that it would be impossible to conduct “meaningful discovery” without getting into the “operational details” of the cooperation between the two countries. Zubaydah appealed, and the Ninth Circuit affirmed in part and reversed in part. It held that while some information might be privileged, the state secrets privilege did not apply to information that was already publicly known, and that in any case, since Mitchell and Jessen were private individuals, even if they testified that the site was in Poland, their testimony would not be an acknowledgment or admission on behalf of the government. The government sought review in the Supreme Court.
The case yielded fractured opinions, and I am not going to go through them in depth. The discussion really revolves entirely around the state secrets privilege, and nothing turns on any details of Section 1782. Justice Breyer, joined by the Chief Justice and (for the most part) by Justices Kagan, Kavanaugh, and Barrett, reasoned that it’s important for US national security that our secret services have the trust of foreign secret services, which allows us to cooperate with them, exchange information, and so forth. Justice Gorsuch, joined by Justice Sotomayor, had a strong dissent, which began: “There comes a point where we should not be ignorant as judges of what we know to be true as citizens.” There is nothing secret, he argued, about the fact that the detention site was in Poland. I think Justice Breyer has the better of this argument; it’s not just about shielding the government from “embarrassment,” as Justice Gorsuch suggests. But the unusual breakdown of the opinions is usually a reliable sign that there are good arguments on both sides that do not fit in to our usual simplistic political boxes.