Readers, you will want to keep an eye on In re Application of Zayn Al-Abidin Muhammad Husayn (Abu Zabaydah), a really interesting § 1782 application pending in the Eastern District of Washington. Abu Zabaydah was a key figure in the government’s pre- and post-9/11 efforts to fight Al Qaeda. I’m not going to detail the whole sordid history of the case, but from what I’ve read it seems that Abu Zabaydah was a jihadi and an enemy of the United States, and that our government, which captured him in Pakistan in 2002, brutally tortured him and has no intention of either releasing him from custody or charging him with any crime. Senator Feinstein, on the Senate floor, said that for more than two weeks in 2002, he was subject to “nonstop interrogation and abuse, 24/7,” which included “multiple forms of deprivation and physical assault.”
In 2002 and 2003, Abu Zabaydah was imprisoned at a CIA “black site” in Poland. In 2010, while imprisoned at Guantanamo Bay (where he remains today), he sued Poland in the European Court of Human Rights, arguing that the Polish government had failed to conduct an investigation into his claims of violations of Polish and international law. In 2014, the ECHR agreed, and Poland therefore reopened the criminal investigation into Abu Zabaydah’s claims. Under Polish law, Abu Zabaydah has the right to submit evidence in connection with the investigation. The Polish government made requests for evidence to the United States via the two countries’ mutual legal assistance treaty, but the United States denied all of the requests. Abu Zabaydah then brought his application, seeking in particular leave to serve subpoenas on James Mitchell and Bruce Jessen, allegedly the “architects” of the CIA’s euphemistically-named “enhanced interrogation program.” (If I understand the situation correctly, Poland’s MLAT requests did not specifically seek Mitchell’s or Jessen’s testimony).
The US government has submitted a statement of interest opposing the application. The government’s main point is that Abu Zabaydah should not be able to use § 1782 to obtain evidence that the Polish government had been unable to obtain under the MLAT. It’s difficult to see how this argument fits within the traditional Intel test: to the extent we’re talking about circumvention of proof-gathering restrictions, we’re not talking about restrictions put in place by Polish law, but rather the United States’s refusal to provide evidence to the Polish government per the treaty. The US says that the application seeks to “circumvent established treaty provisions,” but the point of the circumvention factor is to serve the interests of international comity by avoiding giving offense to foreign governments, which is, more or less, the opposite of the situation here.
That said, there are some precedents that deal with § 1782 requests that followed unsuccessful MLAT requests. The government’s main cases were In re Application of O2CNI Co., Ltd., 2013 WL 4442288 (N.D. Cal. Aug. 15, 2013), and Lazaridis v. Int’l Ctr. for Missing & Exploited Children, Inc., 760 F. Supp. 2d 109, 112 (D.D.C. 2011). But the two cases are distinguishable: O2CNI involved a request aimed at taking discovery from the targets of the foreign criminal investigation; Lazaridis, as the response says, “was a case of a pro se litigant bringing a badly deficient application for an improper purpose.”
It seems to me that Abu Zabaydah has the better of the argument here, though things would be different, in my view, if the Polish government or a Polish prosecutor, after making unsuccessful MLAT requests, sought to bring a § 1782 application in their own right. That said, it’s not clear that Abu Zabaydah will ultimately get the evidence he wants. The government has suggested that if the subpoenas issue, it will assert all applicable privileges, and we likely would see an assertion of the state secrets privilege that a court will be very reluctant to reject.
I’ll keep my eye on this one.