938 F.3d 1123
9th Cir.2019Background:
- Abu Zubaydah was captured in 2002, held in CIA detention and interrogation "black sites," and the ECHR found he was detained and tortured in a CIA-run facility in Poland.
- Mitchell and Jessen, private contractors who designed and supervised enhanced interrogation techniques, were subpoenaed under 28 U.S.C. § 1782 for documents and depositions to aid a Polish criminal investigation.
- The district court initially granted the § 1782 application under the Intel factors; after the U.S. intervened invoking the state secrets privilege (Pompeo declarations), the court quashed the subpoenas in full.
- The district court found some requested categories privileged (e.g., identities of foreign collaborators, operational details) but also concluded that the mere fact of CIA involvement in Poland was not a state secret.
- The Ninth Circuit reversed and remanded: it agreed some categories are privileged but held the court erred by quashing everything instead of attempting to disentangle nonprivileged from privileged material and using protective procedures.
- A dissent would have deferred to the CIA Director and affirmed dismissal, emphasizing the risk that ostensibly nonprivileged facts could reconstruct a classified mosaic.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred in quashing subpoenas entirely based on the state secrets privilege | Husayn: district court should allow nonprivileged discovery and employ disentanglement/protective measures | U.S.: disclosure would confirm/deny clandestine relationships and risk grave national security harm, so subpoenas must be quashed | Reversed: court must attempt to segregate nonprivileged from privileged material and use protective tools before dismissal |
| Whether the fact of CIA detention/interrogation in Poland is a state secret | Husayn: existence and treatment are largely public and not a state secret; therefore discoverable | U.S.: official confirmation would harm intelligence relationships and national security | Held: existence/treatment in broad strokes not a state secret here; government failed to show those facts would cause exceptional grave harm |
| Scope of Reynolds privilege and proper third-step remedy (dismissal vs. disentanglement) | Husayn: Reynolds requires courts to disentangle and release nonsensitive material whenever possible | U.S.: even innocuous details can be part of a classified mosaic; separation is impossible here and dismissal is warranted | Held: dismissal is a last resort; district court must use in camera review, protective orders, pseudonyms, and other tools before concluding disentanglement impossible |
| Application of §1782/Intel factors and whether foreign-destined discovery changes state secrets analysis | Husayn: §1782 grants discovery discretion; receptivity/usefulness to Polish prosecutors irrelevant to privilege analysis | U.S.: discovery destined for a foreign tribunal heightens risk because materials will leave U.S. control | Held: §1782/Intel analysis was properly applied earlier; destination abroad does not change whether information is a state secret, but courts may consider risks when tailoring discovery on remand |
Key Cases Cited
- Totten v. United States, 92 U.S. 105 (1875) (subject-matter bar for certain clandestine espionage contracts)
- United States v. Reynolds, 345 U.S. 1 (1953) (established modern state secrets privilege framework)
- Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc) (Reynolds-step framework and caution that dismissal is rare; mandate to disentangle sensitive from nonsensitive information)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (factors for district court discretion in §1782 proceedings)
- Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) (skeptical judicial review of state secrets claims and procedures for in camera review)
- Kasza v. Browner, 133 F.3d 1159 (9th Cir. 1998) (concept of a "classified mosaic" and limits on disentanglement)
- Fazaga v. Fed. Bureau of Investigation, 916 F.3d 1202 (9th Cir. 2019) (examples of harms covered by the privilege and limits on disclosure)