Filed Date: May 22, 2017
Closed Date: May 3, 2022
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This case is focused on Zayn Al-Abidin Muhammad Husayn (aka Abu Zubaydah; “petitioner”) and the international legal effort to hold accountable those believed to have interrogated and tortured him at a CIA “black site” in Poland. Mr. Husayn was also one of many petitioners who filed for a writ of habeas corpus in the U.S. District Court for the District of Columbia while detained at the United States military prison at Guantanamo Bay. For more information on the Guantanamo Bay detainees’ habeas petitions, please see In Re Guantanamo Bay Detainee Litigation.
Husayn, a stateless Palestianian suspected of holding a leadership position in a foreign terrorist organization, was captured in March 2002 by U.S. and Pakistani agents. He has since been indefinitely held by the U.S. military as an “enemy combatant.” After his capture and before being transferred to Guantanamo Bay, petitioner was held in various CIA blacks sites in foreign countries where he was subjected to enhanced interrogation techniques illegal in the U.S. Husayn was imprisoned in a black site in Poland from December 2002 to September 2003. In 2013, his attorneys filed an application against the Republic of Poland before the European Court of Human Rights (ECHR). The application alleged that Poland failed to conduct a full and proper investigation into violations of international and domestic Polish law after Husayn filed a complaint in Poland in 2010. In 2014, the ECHR found that the Polish government’s original criminal investigation of Polish officials’ complicity in the operation of the black site was inadequate, prompting Poland to reopen the investigation. Unable to give direct testimony in the Polish criminal investigation, Husayn filed an ex parte application for discovery with the U.S. District Court for the Eastern District of Washington seeking service of subpoenas to two respondents. According to a publicly available report issued by the Senate Select Committee on Intelligence, respondents were two former CIA contractors known to have visited the Polish black site and believed to possess information relevant to the Polish government’s application. The application for discovery was filed on May 22, 2017 under 28 U.S.C. § 1782, a provision intended to facilitate the conduct of litigation in foreign courts and foster international cooperation in litigation. The case was initially assigned to Judge Justin L. Quackenbush.
On May 31, 2017, the U.S. Department of Justice (DOJ) notified the court that it was considering participating in Husayn’s district court case due to U.S. national security and foreign policy concerns. Under 28 U.S.C. § 517, the Attorney General may send any officer of the DOJ to represent the legal interests of the United States in any state or district court. DOJ officially submitted a statement of interest on June 30, 2017 seeking 60 days to assess whether to assert applicable privileges, including the state secrets privilege.
The government’s statement outlined the four factors (“the Intel factors”) identified by the Supreme Court in Intel Corp. v. AMD, Inc., 542 U.S. 241, 264 (2004) for a district court’s discretion in granting a 28 U.S.C. § 1782 discovery application: (1) whether the person from whom discovery is sought is a participant in the proceeding; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government to U.S. federal court assistance; (3) whether the discovery request is an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the government; and (4) whether the discovery request is unduly burdensome. The government argued that granting petitioner’s application for a subpoena would be unduly burdensome because petitioner’s parameters were too broad and complying with a subpoena would require a significant allocation of resources to assessing what information needed to remain privileged. The government also argued that, contrary to the spirit of 28 U.S.C. § 1782, issuing the subpoenas would discourage foreign governments from cooperating with the U.S., undermining national security and foreign policy interests. According to the government, the mutual legal assistance treaty (MLAT) with Poland provided a proper channel for the information Husayn sought. In a response filed July 21, 2017, Husayn argued that the government mischaracterized him as an agent of the Polish government rather than an individual seeking vindication of his personal rights.
The court granted Husayn’s application for discovery on September 7, 2017. After reviewing the Intel factors and finding the government’s argument that the subpoenas would prove unduly burdensome premature, the court granted petitioners leave to serve respondents with subpoenas. The court was skeptical of the government’s argument regarding the MLAT with Poland given that the United States had already refused requests for more information from the Polish government.
On October 24, 2017, DOJ filed a motion to intervene in the case, seeking a protective order and to quash the subpoenas served to respondents. Asserting state secrets privilege, then CIA Director Michael Pompeo claimed that the government’s interests in national security were not adequately represented by any of the original parties and that the court lacked jurisdiction under 28 U.S.C. § 2241 (the Military Commissions Act or MCA). The MCA prevents courts from exercising jurisdiction in an action against the U.S. “relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined…to have been properly detained as an enemy combatant.” Husayn objected to the motion to quash but did not respond to the government’s motion to intervene.
The court granted the government’s motion to intervene on February 21, 2018, but rejected its jurisdiction-stripping argument. The court applied the Ninth Circuit’s five element test for determining whether a court lacks jurisdiction under the MCA: (1) the action is against the U.S. or its agents; (2) the action relates to any aspect of the detention, transfer, treatment, trial or conditions of confinement of a non-U.S. citizen (“alien”); (3) the action relates to an enemy combatant; (4) the action is other than an application for writ of habeas corpus; and (5) the action does not qualify for an exception under the Detainee Treatment Act. Applying the five element test, the court held that the MCA did not strip it of jurisdiction. The action was not filed against the U.S., the government failed to establish that respondents were agents of the U.S., and the government did not produce evidence that petitioner was properly deemed an enemy combatant. However, the court did hold that the state secrets privilege applied and quashed the subpoenas accordingly. The court then dismissed the case, finding that discovery could not proceed without presenting an unacceptable risk of disclosing state secrets. 2018 WL 11150135.
Petitioner appealed on March 15, 2018. On September 18, 2019, the Ninth Circuit Court of Appeals affirmed in part and reversed in part, in an opinion authored by Judge Paez. The Ninth Circuit affirmed the district court’s holding that certain kinds of information sought by petitioner, like “documents, memoranda, and correspondence about the identities and roles of foreign individuals involved with the detention facility” were privileged but nonetheless held that the district court should not have dismissed the case. Applying the three-step test set out by the Supreme Court in United States v. Reynolds, the court: (1) reviewed whether the procedural requirements for invoking the state secrets were satisfied; (2) determined whether the information at issue was privileged; and (3) considered how the case should proceed in light of a successful privilege claim. Husayn did not dispute that the procedural requirements were satisfied, leaving the court to concentrate on the second and third questions. The Ninth Circuit held that the CIA’s enhanced interrogation program was not a state secret and that other facts related to petitioner’s detention already made public were not protected under the state secrets privilege. Though the identities and roles of foreign individuals were protected by state secrets privilege, the Ninth Circuit found that the district court did not make a sufficient effort to disentangle privileged and nonprivileged information before dismissing petitioner’s case. Respondents had previously provided the kind of nonprivileged information sought by petitioners, illustrating that disentangling privileged and nonprivileged information was possible and that the nonprivileged information could be useful to Polish investigators. 938 F.3d 1123.
The government sought rehearing en banc, but it was denied. The case was reassigned to Judge Thomas Owen Rice at the district court level on July 30, 2020. On December 17, 2020, the government filed a petition for a writ of certiorari. 141 S.Ct. 2564 (Mem).
The Supreme Court granted the petition for writ of certiorari, the first time in 50 years that the Court considered the scope of the state secrets privilege. Husayn’s case was argued before the Supreme Court on October 6, 2021. On March 3, 2022, the Court reversed the Ninth Circuit’s decision and remanded the case, holding that the government provided sufficient support to warrant applying the state secrets privilege. Justice Breyer wrote the opinion of the Court, with the exception of Parts II-B-2 and III. (Part II-B-2 discussed an analogy to FOIA requests that the government made in its argument that confirmation by respondents of events already made public could significantly harm national security interests, an argument Justice Breyer found credible.) The Court identified three problematic topics into which the Ninth Circuit allowed continued discovery: (1) the existence of a CIA detention facility in Poland; (2) the conditions of confinement and interrogation at that facility; and (3) petitioner’s treatment at that location. Applying the Reynolds test, assessing the strength of petitioner’s claim of necessity, and mindful of the Court’s “traditional reluctance” to interfere with Executive authority in military and national security affairs, the Court found that a response to subpoenas would confirm or deny the existence of a CIA detention site in Poland and that the government met the requisite burden to assert state secrets privilege over the existence of the site. 142 S.Ct. 959.
The opinion was fractured, but parts III and IV held a majority. Justice Kagan dissented in part, agreeing that the location of a potential CIA facility fell within the scope of the state secrets privilege but finding dismissal of Mr. Zubaydah’s suit improper due to his primary interest in obtaining testimony on what happened to him in his cell (distinguishing the “where” from the “what”). Justice Kagan noted precedent for segregating the classified location information from the unclassified treatment information and allowing discovery into the latter. Justice Gorsuch, joined in his dissent by Justice Sotomayor, questioned the government’s argument that state secrets were at stake given the extent of information already public about Mr. Zubaydah’s torture and detention. Justice Gorsuch suggested that the government’s motivation for dismissal was to “impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds.” 142 S.Ct. 959.
This case is now closed.
Hannah Juge (8/7/2022)
In Re: Guantanamo Bay Detainee Litigation, District of Columbia (2008)
See docket on RECAP: https://www.courtlistener.com/docket/6262970/zayn-al-abidin-muhammad-husayn/
Last updated May 22, 2023, 3:01 a.m.
State / Territory: Washington
Filing Date: May 22, 2017
Closing Date: May 3, 2022
Case Ongoing: No
Zayn Al-Abidin Muhammad Husayn (Abu Zubaydah) has been detained by the U.S. government as an "enemy combatant" since 2002 and is currently being detained in Guantanamo Bay Detention Camp.
Public Interest Lawyer: No
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
United States Department of Justice (- United States (national) -), Federal
Special Case Type(s):
Warrant or subpoena application
U.S. Supreme Court merits opinion
Prevailing Party: Defendant
Nature of Relief:
Source of Relief:
Type of Facility: