United States v. Zubaydah
The Supreme Court sided with the government, ruling that the CIA could use the state secrets privilege to block a Guantánamo detainee's attempt to subpoena former CIA contractors about his alleged torture at a secret CIA prison in Poland — even though foreign courts, a Senate report, and news organizations had already widely reported the story.
The decision reinforces that official confirmation of a covert CIA operation can harm national security in ways that unofficial leaks do not, and leaves the detainee without a judicial path to the specific evidence he sought.
How it got here: The District Court dismissed Zubaydah's discovery application; a divided Ninth Circuit panel reversed in part, allowing discovery on three categories; the Supreme Court agreed to hear the government's appeal.
The Case in Depth
What happened
Abu Zubaydah has been held at Guantánamo Bay since 2006. He says the CIA detained and tortured him at a secret prison in Poland in 2002 and 2003. Polish prosecutors investigating those allegations invited Zubaydah to submit evidence after the U.S. government twice refused to cooperate with Poland's official requests. Zubaydah asked a federal court for permission to subpoena James Mitchell and John Jessen — the two former CIA contractors who designed and ran the CIA's enhanced-interrogation program and personally interrogated him — for documents and testimony about what happened at the Polish site.
The question before the Court
Can the government use the state secrets privilege to shut down a lawsuit seeking information about CIA torture, even when foreign courts, news reports, and a Senate investigation have already documented much of what happened?
The Court's answer
Yes — the Court ruled that the government could invoke the state secrets privilege to block Zubaydah's subpoenas, even though considerable information about the CIA's alleged Polish detention site had already entered the public record through unofficial sources. The key was that 12 of Zubaydah's 13 document requests specifically named Poland, so any answer by the former CIA contractors — confirming or denying those requests — would effectively confirm or deny whether the CIA ever operated a detention site there. The Court held that official confirmation by CIA insiders is different in kind from press speculation or foreign-court findings, because it removes lingering doubt and signals that the U.S. will not stand by its commitment to protect secret foreign partnerships.
Because the privilege attached to the existence or nonexistence of the Polish facility, and because all three categories of discovery the lower court had permitted would inevitably require that confirmation, no part of the discovery could proceed. The Court ordered the case dismissed outright rather than sent back for further proceedings, because the subpoenas were the entire purpose of the proceeding and could not survive the privilege claim.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People seeking information about government conduct — even decades-old conduct that has been publicly reported — face a high bar if the CIA has never officially confirmed it. Courts will generally accept the CIA Director's declaration that confirming a clandestine foreign partnership would damage intelligence relationships, without requiring the government to open its files to a judge or prove harm in detail.
What changes now
The case is sent back to the lower court with instructions to dismiss Zubaydah's current subpoena application. The Court left open the possibility that Zubaydah could file a new, differently-framed discovery request — one that seeks information about his treatment without referencing Poland — and suggested that might avoid the privilege problem. The government also said it would permit Zubaydah to submit a declaration about his treatment, subject to a security review, for use by Polish prosecutors. The underlying Polish criminal investigation continues.
What this does not decide
The Court expressly left open whether a new discovery request from Zubaydah — one that asks about his treatment without naming Poland or any specific location — could succeed. The ruling also does not address the merits of Zubaydah's torture claims, his continued detention, or whether the CIA's actions were lawful.
Concurrences and dissents
Concurrence in part — Justice Thomas
Justice Thomas agreed with the outcome but would have reached it by a different and shorter path: under Reynolds, a court should start by assessing the requester's showing of need, not the government's reasons. Because Zubaydah's need was 'dubious' — he was seeking discovery for a foreign government, had available alternatives, and his counsel said the Polish investigation already had abundant evidence — the privilege should automatically prevail without any judicial examination of the CIA Director's declaration. Thomas also sharply criticized both the majority and Justice Kavanaugh for inverting Reynolds by placing the government's reasons first.
Concurrence in part — Justice Kavanaugh
Justice Kavanaugh joined nearly the full opinion but wrote separately to clarify how Reynolds works in practice. He described a three-step framework: first, a court asks whether circumstances show a reasonable possibility that state secrets are involved (a low threshold, usually self-evident); second, if the requester's need is merely 'dubious,' the privilege prevails without more; third, if the need is strong, the court may examine the evidence more carefully but still with deference. He did not join the majority's FOIA-analogy section.
Concurrence in part — Justice Kagan
Justice Kagan agreed that confirming the Polish location would harm national security and that the state secrets privilege applied to location information. But she would not have dismissed the case. Because information about Zubaydah's treatment — as opposed to his location — is no longer classified, she would have remanded for the District Court to segregate the two categories: allow Zubaydah to reframe his requests without Poland-specific references, and require the contractors to answer about his treatment using code names, as they had done in prior civil and military-commission proceedings.
Dissent — Justice Gorsuch
“There comes a point where we should not be ignorant as judges of what we know to be true as citizens.”Gorsuch opening his dissent by arguing the case involves no genuine secret, given two decades of public documentation of Zubaydah's detention and torture in Poland.
Justice Gorsuch argued that the government had not met its burden of showing a 'reasonable danger' of harm: the Polish site's existence has been confirmed by the former Polish president, the European Court of Human Rights, and the Council of Europe — making the CIA Director's declaration a conclusory assertion rather than genuine proof. More fundamentally, even assuming the location was a secret, the privilege protects against producing certain evidence, not against lawsuits Congress authorized. The Court should have remanded for the District Court to use familiar tools — code names, protective orders, government counsel attending depositions — to allow discovery on Zubaydah's treatment without disclosing the location, as had been done in prior related litigation.
How the Court got there
The legal reasoning, step by step
- The governing framework comes from United States v. Reynolds (1953): the government must formally invoke the state secrets privilege through the relevant department head; a court must independently determine whether the circumstances justify the claim; and how deeply the court probes the government's justification depends on how strongly the requester has shown a need for the information. Throughout, courts must be deferential to the Executive on national security but cannot simply take the government's word without any independent assessment.
- The specific language of Zubaydah's discovery requests was decisive: 12 of his 13 document requests named Poland or a Polish location by name, and 10 asked specifically about an alleged CIA facility in Stare Kiejkuty, Poland. Any response from the contractors — even a denial that documents exist — would effectively confirm or deny whether the CIA operated a site there. All three categories of discovery the Ninth Circuit permitted (location, conditions of confinement, and Zubaydah's treatment) would require that confirmation at the threshold.
- Even if information has leaked into the public domain through unofficial sources, the government may still invoke the state secrets privilege against official confirmation. Drawing on an analogy to the Freedom of Information Act's 'official acknowledgment' doctrine, the Court reasoned that CIA confirmation is different in kind from press reports or foreign-court rulings: it removes any lingering doubt, can reveal that public information is incomplete or was planted as a cover story, and sends a signal to all foreign intelligence partners that the U.S. will not protect their secret cooperation regardless of what reporters say.
- The CIA Director's declaration adequately supported the privilege claim: clandestine relationships with foreign intelligence services are, the Director explained, built on a mutual promise that the classified existence of the relationship will never be officially disclosed. Confirming Poland's cooperation — even two decades later and despite extensive media coverage — would breach that promise, jeopardize existing intelligence partnerships, and undermine the CIA's ability to form new ones. The Court found this sufficient to show a 'reasonable danger' of harm to national security under Reynolds.
- Mitchell and Jessen's status as private contractors did not insulate their answers from the privilege. The pair designed and personally administered the CIA's enhanced-interrogation program and were the central actors in the events Zubaydah sought to document. The CIA Director's declaration described the harm that would follow from their responses specifically — not from a response by a current CIA official — confirming that their testimony would be understood as tantamount to official CIA confirmation.
- Zubaydah's demonstrated need for the information was 'not great': his own counsel said at argument that the primary goal was learning what happened to him, not confirming the Polish location, and much information about his treatment was already public. Low need, combined with the CIA Director's unrebutted declaration, meant no deeper judicial probing of the privilege claim was required. Because the privilege barred all of the discovery the Ninth Circuit had permitted, and because this was purely a discovery proceeding with no surviving purpose, dismissal — rather than a remand — was the appropriate outcome.
Doctrinal impact
Cases affected by this decision
Reaffirms United States v. Reynolds (345 U.S. 1)
Reaffirmed as the governing framework for when courts must accept the government's state secrets privilege claim.