United States v. Zubaydah
The Supreme Court ruled that the government could invoke the state secrets privilege to shut down Abu Zubaydah's effort to subpoena former CIA contractors about what he says was torture at a secret Polish detention facility.
The decision reinforces the government's power to block even widely reported facts from formal court proceedings when an official confirmation — especially by insiders who ran the program — could damage ongoing CIA relationships with foreign intelligence services.
How it got here: A federal district court dismissed Zubaydah's discovery application after initially granting it; a divided Ninth Circuit panel reversed in part, allowing discovery on three topics; the government petitioned for certiorari, which the Supreme Court granted.
The Case in Depth
What happened
Abu Zubaydah, held at Guantánamo Bay since 2006, says that in 2002 and 2003 he was detained and subjected to torture — including waterboarding more than 80 times — at a secret CIA facility he believes was in Poland. Polish prosecutors opened a criminal investigation and invited Zubaydah to submit evidence. He asked a federal court to subpoena James Mitchell and John Jessen, the former CIA contractors who designed and personally ran the CIA's post-9/11 enhanced interrogation program.
The question before the Court
Can the U.S. government use the state secrets privilege to block a Guantánamo detainee from subpoenaing former CIA contractors about alleged torture at a secret CIA facility in Poland — even when the facility's existence has been widely reported and confirmed by foreign courts?
The Court's answer
Yes — the Supreme Court ruled that the government could invoke the state secrets privilege to block all of Zubaydah's subpoenas. Any response from the former CIA contractors would effectively confirm or deny whether the CIA operated a detention facility in Poland, because nearly all of his document requests specifically named Poland. Official confirmation by insiders who personally ran the program — even if similar facts had been reported publicly through unofficial sources — could damage the CIA's relationships with foreign intelligence services by eliminating whatever doubt remained about those unofficial reports.
Because the privilege attached to the core location question, and every category of discovery the lower court had permitted would inevitably require answering it, the Court ordered the entire application dismissed rather than just limited. Zubaydah's own lawyer acknowledged at argument that they mainly wanted to know what happened to him, not just where — and much information about his treatment was already publicly available — reducing the justification for deeper judicial scrutiny of the government's privilege claim.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Anyone seeking court-ordered evidence from former U.S. intelligence officials about alleged abuses at CIA black sites faces a high bar from the state secrets privilege, even decades later and even when the underlying facts are extensively documented publicly. The ruling leaves the Polish criminal investigation without key testimony from the two contractors who designed and personally carried out the CIA's interrogation program.
What changes now
The discovery application is dismissed. The Court explicitly left open the possibility that Zubaydah could file a new, differently worded request focused solely on his treatment conditions and omitting any Poland-specific references. The government also pledged to allow Zubaydah to submit a declaration about his treatment — subject to a security review of unspecified scope — for use by Polish prosecutors. The underlying Polish criminal investigation continues independently of this ruling.
What this does not decide
The ruling does not determine whether Zubaydah was tortured, whether the CIA operated a facility in Poland, or whether any Polish officials bear responsibility. The Court expressly did not decide whether a differently worded subpoena focused only on treatment conditions without reference to geography could survive a state secrets claim. The legality of the CIA's detention and interrogation practices is also not addressed.
Concurrences and dissents
Concurrence in part — Justice Thomas
Justice Thomas agreed with the outcome — dismissal — but argued the majority applied the Reynolds framework in the wrong order. Under Reynolds, he contended, courts must first ask whether the requesting party has demonstrated a genuine need for the information, and only if need is strong enough may they examine the government's reasons for invoking the privilege. Because Zubaydah's need was clearly 'dubious' — he had available alternatives, the Polish prosecutors already had extensive evidence, and he wasn't pursuing any claim for his own relief — dismissal was required at that first step without even evaluating the government's national security justification.
Concurrence in part — Justice Kavanaugh
Justice Kavanaugh joined almost all of the Court's opinion and wrote separately only to clarify his reading of how the Reynolds framework operates in practice. He described a threshold step — a court must first confirm that the circumstances suggest a 'reasonable possibility' that state secrets are involved — before moving to questions of need and privilege. He emphasized this threshold check is undemanding and self-evident in most cases, and stressed that once the privilege is properly established it is absolute: no degree of necessity can override it.
Dissent in part — Justice Kagan
Justice Kagan agreed with the majority that confirming the location of Zubaydah's Polish detention site would pose a genuine national security risk and should be privileged. But she argued the case should be sent back for further proceedings rather than dismissed, because Zubaydah's actual priority was learning what happened to him — not where. Courts have previously allowed CIA contractors to testify about detainee treatment using code names for locations, and the same approach could protect classified location information here while giving Zubaydah access to unclassified treatment evidence. She would have allowed Zubaydah to amend his requests to remove all Poland-specific references.
Dissent — Justice Gorsuch
“There comes a point where we should not be ignorant as judges of what we know to be true as citizens.”Justice Gorsuch opening his dissent, arguing the Court should not pretend that widely documented facts about CIA torture remain genuine secrets.
Justice Gorsuch argued the government failed to meet its burden of showing a 'reasonable danger' of harm to national security: the detention site's existence in Poland had been confirmed by a former Polish president, the European Court of Human Rights, and many public sources, and the CIA Director's declaration was too conclusory to carry that burden. He would have remanded for in camera review of the government's evidence rather than accepting it at face value. More fundamentally, he argued that even if the location is a state secret, the case should continue — as prior CIA litigation had done — using code names and protective orders to allow discovery about Zubaydah's treatment without revealing where it occurred, calling dismissal an inappropriate abdication of the judiciary's duty.
How the Court got there
The legal reasoning, step by step
- The state secrets privilege — established by the Court in United States v. Reynolds (1953) — allows the government to withhold information that poses a 'reasonable danger' to national security. The government must formally invoke the privilege through the head of the relevant agency, and a court must independently decide whether it applies, though courts should be deferential to the executive on national security judgments.
- The Court zeroed in on what any response to the subpoenas would actually reveal: because 12 of Zubaydah's 13 document requests explicitly named Poland or referenced a specific Polish location, answering them — whether confirming or denying the existence of responsive documents — would necessarily confirm or deny that the CIA ran a detention facility there.
- The Court accepted the CIA Director's declaration that clandestine relationships with foreign intelligence services depend on mutual trust that those relationships will never be officially acknowledged. A confirmation by former CIA insiders who personally designed and ran the program is categorically different from press speculation or foreign court findings — it removes all remaining doubt and could damage the CIA's ability to secure cooperation from foreign partners in the future.
- The Court rejected the Ninth Circuit's view that Mitchell and Jessen, as 'private parties,' could not speak for the government. Because they personally designed and carried out the CIA's interrogation program, their confirmation or denial of the site's existence would be tantamount to a disclosure by the CIA itself — a point reinforced by the CIA Director's declaration describing the harm from the contractors' testimony specifically.
- Weighing Zubaydah's need for the information against the national security risk, the Court found his need modest. His own lawyer said at argument that they already knew where he was held and mainly wanted to know what happened there, and much information about his treatment was already in public sources, reducing the case for deeper judicial probing of the privilege claim.
- Because the privilege blocked discovery into the Polish location question, and all three categories the Ninth Circuit had permitted would inevitably require confirming or denying that question, dismissal of the entire §1782 discovery application was required. Unlike most litigation, this proceeding existed solely to obtain that specific discovery — so there was nothing left for the case to do once the privilege applied.
Doctrinal impact
Cases affected by this decision
Reaffirms United States v. Reynolds (345 U.S. 1)
The Court applies Reynolds as the governing framework for state secrets privilege claims, requiring courts to independently assess privilege but defer to the executive on national security.