United States v. Zubaydah

Whether the Court of Appeals erred when it rejected the United States’ assertion of the state-secrets privilege based on the court’s own assessment of potential harms to the national security, and required discovery to proceed further under 28 U.S.C. 1782(a) against former Central Intelligence Agency (CIA) contractors on matters concerning alleged clandestine CIA activities.

Respondent was captured by U.S. military forces in Pakistan and detained abroad. Before moving to a detention facility, Respondent was held at a CIA “dark site” where two former CIA contractors used “enhanced interrogation techniques” against him. Respondent initiated this proceeding under 28 U.S.C. 1782(a), which provides that a district court “may” order “a person [who] resides or is found” in its district “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” However, “[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” The district court granted the Section 1782 application and granted leave to subpoena the contractors. The United States moved to intervene and quash the subpoenas based on its invocation of the state-secrets privilege.. The issue on appeal is whether the government can properly assert the state-secrets privilege in this context. The government asserts that the Ninth Circuit’s decision “poses significant risks to the national security” and that the court’s errors in this case arise from the court’s “failure to afford deference to the judgment of the CIA Director regarding the risk of harm to the national security.”