This is the second part of a two-part blogpost previewing United States v. Zubaydah, one of two cases this Supreme Court term in which the Court will take up the rarely-discussed state secrets privilege.  Part I of this series laid out the state secrets privilege (largely focusing on United States v. Reynolds, 345 U.S. 1 (1953), the seminal Supreme Court case in the area), and discussed the Zubaydah litigation in the lower courts.  I also noted the overlap between the state secrets privilege and Freedom of Information Act (“FOIA”) exemptions 1 and 3.  In this part, I will lay out six questions the Court may discuss.

Previewing the Supreme Court Case

In resolving the case, the Supreme Court may address the following issues:

(1) the degree of deference due national security and intelligence officials,

(2) the appropriate application of the state secrets privilege when information is sought from a government consultant, rather than the Government itself,

(3) whether officially un-confirmed but widely “known” information qualifies as “secret,”

(4) the degree to which courts should seek to disaggregate privileged and non-privileged information rather than dismissing a case altogether based on the state secrets doctrine,

(5) whether the Reynolds test should be modified when the government information is destined for a foreign tribunal, and

(6) whether the panel’s ruling is consistent with the Intel Corp. factors that govern the exercise of discretion to issue a subpoena under section 1782(a). 

I will outline each of these issues in turn.

Deference Owed National Intelligence and Security Officials

The first issue is the level of deference due to the CIA Director. The Ninth Circuit reviewed the assertion of the state-secrets privilege with a skeptical eye. Husayn v. Mitchell, 938 F.3d 1123, 1132 & n.14 (9th Cir. 2019).  In the Government’s view, expert assessment of harm to the national security, warrants “the utmost deference.”  Brief For the United States, U.S. v. Zubaydah, Dkt No. 20-827, at 19, 22, 24, 42 (July 2021).  In particular, the Government argues that the Supreme Court “has made clear that the government’s assertion of the state-secrets privilege as part of its “Art[icle] II duties” is entitled to a “high degree of deference.” Id. at 24 (quoting United States v. Nixon, 418 U.S. 683, 710-711 (1974). Moreover, Executive Branch officials possess the necessary expertise to exercise predictive judgment about that harm that could result from the disclosure of information, whereas “it is difficult to conceive of an area of governmental activity in which the courts have less competence.”  Id. 

The Government accuses the Ninth Circuit panel of relying on its own assessment of the country’s national security interests, id. at 25-26, contrary to panel’s own acknowledgement of the Ninth Circuit precedent calling for deference to the Executive Branch. Husayn v. Mitchell, 938 F.3d at 1131.  The en banc dissent put the matter more starkly: “the panel decision does not reflect any apparent deference to the CIA Director’s declarations.” 965 F.3d 775, 787 (9th Cir. 2020) (Bress, J., dissenting for the denial of en banc consideration)(emphasis added).

In FOIA cases, the courts have established a standard that reflects a high degree of deference to the judgment of government officials, even though FOIA’s text makes explicit the judiciary’s obligation to determine whether the classified records withheld from FOIA requesters “are in fact properly classified.”  Both the D.C. and Second Circuits have held that an agency may invoke FOIA exemption 1 or FOIA exemption 3 statutes regarding national security information if the Government’s justification “appears logical or plausible.”  Wilner v. NSA, 592 F.3d 60, 73 (2d Cir. 2009); Gardels v. Central Intelligence Agency, 689 F.2d 1100, 1105 (D.C. Cir. 1982); accord, Knight First Amendment Institute at Columbia University v. Central Intelligence Agency, — F.4th —, 2021 WL 3821864 at*5-*6 (D.C. Cir. 2021); American Civil Liberties Union v. United States Department of Defense, 901 F.3d 125, 133-34 (2d Cir. 2018); American Civil Liberties Union v. Department of Justice, 681 F.3d 61, 70-71 (2d Cir. 2012).  The Ninth Circuit’s stated standard does not appear to substantially differ.  Hamdan v. U.S. Dep’t of Justice, 797 F.3d 759, 769 (2016).[1]

Of course, the Ninth Circuit upheld the CIA Director’s assertion of harm to national security with regard to much of the withheld information, and its disagreements with the CIA Director largely stemmed from differences on questions of law, such as whether the harm from official confirming publicly available information constituted a harm that could justify invocation of the state secrets privilege.[2]  But perhaps even more fundamentally, the Ninth Circuit’s disagreement with the Government and the district court was over the segregability of privileged or non-privileged material.  Indeed, more precisely, the panel’s disagreement with the district court (and the Government) was really over whether the district court should have more vigorously explored the use of available tools that would allow disclosure of non-privileged information while protecting privileged information, before abandoning the effort.[3]

Applying the State Secrets Privilege to Subpoenas Directed Toward Government Consultants

The second issue Zubaydah raises is whether demands for testimony from federal contractors, rather than federal employees, should matter in applying the state secrets privilege. The Ninth Circuit held that Mitchell and Jessen’s confirmation or denial of Poland’s alleged connection to the CIA was not problematic because they were speaking as private parties, mere former government contractors, and not as the United States. Husayn v. Mitchell, 938 F.3d at 1133.  The panel recognized the legitimacy of Director Pompeo’s concerns that requiring disclosure, even from private contractors, would “breach[] trust with the cooperating country or generat[e] backlash in that country.” Id. at 1134.  However, the panel explained, such concerns appear to be lessened “when the other country—here, Poland—is investigating criminal liability of the subject matter involved in this discovery application.” Id. 

The Government, removing all nuance from the panel’s discussion, views the panel majority as concluding that CIA’s foreign partners would not be deterred from cooperating with the United States if clandestine alliances were publicly disclosed by contractors, Gov’t Brief at 28, and sharply attacks that conclusion.  The Government argues that the Supreme Court has a history of recognizing that even an appearance of confidentiality is a critical factor in sustaining intelligence relationships with other international allies.  Id. at 27.[4] The Government characterizes Mitchell and Jensen as “insiders” who, before obtaining access to classified information, would have likely entered the same nondisclosure agreements as government officials.  Id. at 28.

Of course, many functions once performed by federal employees are now “outsourced” to federal contractors.[5]  Moreover, the Supreme Court may well accept the Government’s view of the panel’s holding.  If so, it will likely question the panel’s “apparent” prediction regarding the CIA’s foreign partners’ reactions to disclosure of information regarding the relationships with the CIA via compelled testimony of government contractors.  Such partners may well not appreciate the distinctions between U.S. contractors and U.S. employees; indeed, the distinction may hold little relevance for them. 

The insights offered by one treatise writer may provide some insight regarding this question.  The state secrets privilege is not a communications privilege, it does not merely protect “the fact of communication,” but also more generally protects “the fact[s] communicated.”  26 FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5665 (available on westlaw). Contrast the attorney-client privilege, in which the underlying facts discussed with a lawyer can be the subject of compelled testimony by a third party; the privilege merely precludes the lawyer’s testimony regarding the client’s statements.  Id. The state secrets’ privilege precludes anyone under the Government’s authority from divulging covered information.  See, id.  Accordingly, because the state secrets privilege is not, at base, a communications privilege, it should make little difference whether properly classified information is divulged by a contractor or an employee.  Of course, this analysis may be overly simplistic when the Government’s concern is not disclosure of the information, but official confirmation.

What Does “Secret” Mean?

The third issue the case presents is whether public knowledge of classified information renders the state secrets privilege inapplicable.  In asserting the state secrets privilege, the Government was concerned about disclosure of information that would confirm or deny Mitchell and Jensen’s knowledge of the CIA’s operations in Poland.  The Ninth Circuit reviewed the government documents and noted that the government was not concerned with the harm that would result from dissemination, per se. Rather, the Government was primarily concerned with the harm that would result from confirming or denying the existence of a black site in Poland. Husayn v. Mitchell, 938 F.3d at 1132.  The panel concluded that much of the classified information the Government sought to withhold was basically public knowledge, and held that in order to qualify as a state secret, the information in question must indeed be a secret.  Id. at 1133.^[6]

In its petition for certiorari and its merits brief the Government takes aim at this reasoning.  It notes courts’ repeated recognition that “in the arena of intelligence and foreign relations,” there can be “a critical difference between official and unofficial disclosures,” Gov’t Brief at 30, quoting a major FOIA case regarding the scope of the “official acknowledgement” doctrine, Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).[7] Speculation by authors or reporters is distinct from an official statement made by an official authority.  Gov’t Brief at 30-31. Whether information has entered the realm of public knowledge is irrelevant to expert determinations pertaining to national security.  Id. at 31.   Indeed, because intelligence officers routinely deploy tradecraft to cloak the true nature of their activities and misdirect attention, public information in this sphere can be of uncertain reliability notwithstanding widely shared suppositions based on incomplete and circumstantial information  Id. at 32.

Courts have developed considerable precedent under FOIA as to which disclosures constitute “official acknowledgement” such that an agency may no longer rely on an otherwise applicable FOIA exemption, usually Exemption 1 or Exemption 3, to withhold the information from a FOIA requester.  In particular, the D.C. Circuit has explained that to constitute “official acknowledgement”: (1) the information requested must be as specific as the information previously released, (2) the information requested must match the information previously disclosed, and (3) the information requested must already have been made public through an official and documented disclosure.  Fitzgibbon v. CIA, 911 F.2d at 765; see, Leopold v. CIA, 987 F.3d 163, 171 (D.C. Cir. 2021)(ambiguous presidential social media posting does not amount to official acknowledgement).  The D.C. Circuit not “deem ‘official’ a disclosure made by someone other than the agency from which the information is being sought.” Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999); accord, Knight First Amendment Institute v. CIA, —F.4th —, 2021 WL 3821864, *3-*4 (D.C. Cir. Aug. 27, 2021), particularly in the arena of intelligence and foreign relations, id at *3. Thus, as a general rule, “[d]isclosure by one federal agency does not waive another agency’s right to assert a FOIA exemption.” Mobley v. CIA, 806 F.3d 568, 583 (D.C. Cir. 2015); Knight First Amendment Institute, supra, at *4.[8]

Of course, the issue in Zubaydah is not actual waiver by official confirmation, the issue in the FOIA official acknowledgement cases.  Rather the issue is the perception of foreign partners and those who wish to subject them to criminal prosecution or other sanction: would they take the testimony of government contractors with first-hand knowledge as the equivalent of an official confirmation of the information disclosed?  What are the consequences in terms of the United States’ ability to secure cooperation in the future if they do?

At the very least, the Court’s decision in Zubaydah could destabilize some of the FOIA law that has developed around the concept of “official acknowledgement.”

Disentangling Privileged and Non-Privileged Information

A fourth issue likely to be addressed is whether discovery should proceed when the mere act of separating privileged from non-privileged information could compromise state secrets.  The Ninth Circuit majority ruled that the district court too hastily quashed subpoenas and dismissed the entire case without making sufficient effort to disentangle privileged from non-privileged information. Husayn v. Mitchell, 938 F.3d at 1127.  The majority concluded that the non-secret information in Mitchell and Jessen’s possession would merely “provide context to Polish prosecutors or corroborate prosecutors’ independent investigations.” Id. at 1136.

The dissent argued that even such seemingly innocuous information should not be released when such information completes a more detailed mosaic of information.  Id. at 1139 (Gould, J., dissenting)(citing Kasza v. Browner, 133 F.3d 1159, 1166 (9th Cir. 1998)).  In Judge Gould’s view, the combination of facts already made public, the circumstances of the proceeding, and the act of disentangling details could potentially “color [in] a broader picture of clandestine intelligence operations.”  Id.

Moreover, in the context of oral deposition by consultants who have few national security responsibilities, it may well be quite difficult to ensure that such witnesses will not divulge information before the Government attorneys have the opportunity to object.  With written documents, the Government will be fully aware of the information included in the document and will have the ability to raise issues in advance.  This is a less efficacious option with oral testimony, particularly oral testimony of private citizens, even those who have the government’s interests at heart.

Modification of Reynolds in the Context of Testimony and Documents Destined for Foreign Tribunals

The fifth issue the case presents is whether the balancing test in Reynolds was properly applies when the evidence will be shared outside of the United States.  The Government notes that Reynolds struck a balance between two compelling imperatives— federal courts’ adjudicatory authority and control over evidence needed for a fair adjudication, on the one hand, and the Executive Branch’s need to maintain secrecy, on the other.  But where a trial court considering the assertion of the privilege is not adjudicating any claim but is merely ordering testimony and documents to be “shipped overseas,” “totally out of control of a domestic court,” the Executive Branch’s interest in secrecy is entitled to more weight.  In such a context, a court should require nothing more than a showing that the discovery “poses a facially plausible risk to the national security.” Gov’t Brief at 40-42; Husayn v. Mitchell, 938 F.3d at 1140 (Gould, J., dissenting); Husayn v. Mitchell, 965 F.3d at 792 (Bress, J., dissenting from denial of rehearing en banc).

The Ninth Circuit’s answer to this line of argument, was:

A state secret, however, is a state secret in any forum, domestic or foreign. The crux of the question is whether “there is a reasonable danger that compulsion of the evidence will expose … matters which, in the interest of national security, should not be divulged.”  Reynolds, 345 U.S. at 10, 73 S.Ct. 528.

 Husayn v. Mitchell, 938 F.3d at 1134, n.17.

The Court will not likely consider the interest of foreign courts in conducting adjudications, particularly criminal charges against foreign nationals who assisted the United States, on a par with the interest of domestic courts in acquitting their role of exercising the adjudicatory power.  The separation powers issues in the domestic context are likely to make the Supreme Court’s calculus different, much as the Court might wish to support the “rule of law” and vindication of legal rights in foreign tribunals.

Application of the Intel Corp. Factors

The final issue deals with the Intel Corp. factors that guide judicial discretion in the context of section 1782(a).[9]  The Government argues the Ninth Circuit failed to honor two of the four Intel Corp. factors, which serve as “guides for the exercise of district-court discretion” that “bear consideration in ruling on a [Section] 1782(a) request.” Gov’t Brief at 43 (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 263 n.15, 264 (2004)).    The Government first focused on “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance.”  The Government argues that the Polish criminal proceedings are atypical and probe intelligence matters with respect to which neither the U.S. Government nor Poland’s current President “welcome disclosure.” 

Secondly, in the Government’s view, Zubaydah’s request “conceals an attempt to circumvent * * * policies of a foreign country or the United States.”  Gov’t Brief, supra, at 44.  The Government argues that Zubaydah seeks to circumvent U.S. law by seeking the testimony of contractors rather than government officials.  Because section 1782(a) does not allow courts to compel the government to reveal classified or unclassified information, Al Fayed v. United States, 210 F.3d 421, 425 (4th Cir. 2000); Al Fayed v. CIA, 229 F.3d 272, 274-277 (D.C. Cir. 2000), it is inappropriate to compel government contractors to reveal classified information.  Id. at 45.  In the government’s view, Zubaydah’s use of section 1792(a) also circumvents the United States’ bilateral mutual legal assistance treaty (“MLAT treaty”) with Poland.  That treaty allows either signatory to refuse to assist in providing evidence when it believes satisfying such a request would undermine its “essential interests,” among them maintaining the confidentiality of classified information.  Id. at 45-46.

Conclusion

The case presents a variety of issues in a highly-charged context.  Given the Supreme Court’s composition, the Court will likely vacate, or simply reverse, the Ninth Circuit panel’s decision, and perhaps even issue a strong rebuke. 

At base, the case may require a decision regarding whether the United States can protect its ability to convince foreign officials to act contrary to the human rights constraints embodied in their own laws.  The United States can far more easily do so if it refuses to provide assistance in later criminal prosecution of such officials for the actions they took in cooperating with the United States.  And, ultimately, the question lurking in the case is who shall decide such a question, high-level Executive Branch officials responsible to the President and answerable to Congress or the Article III courts.

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[1] There, the Court said:

Where the government invokes FOIA exemptions in cases involving national security issues, we are “required to accord ‘substantial weight’ to [the agency’s] affidavits.” Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir.1992) (quoting Miller v. Casey, 730 F.2d 773, 776, 778 (D.C. Cir.1984)). Those affidavits “must describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemptions, and show that the justifications are not controverted by contrary evidence in the record or by evidence of [agency] bad faith.”

Id.

[2] As the Ninth Circuit explained in a recent case involving the scope of an Exemption 3 statute: “We reject the CDC’s contention that special deference is accorded to agencies in determining the scope of a FOIA exemption relating to national security. As in other FOIA cases, we determine for ourselves the scope of national security FOIA exemptions but give deference to the agency’s factual assertions.”  Civil Beat Law Center for the Public Interest, Inc. v. Centers for Disease Control & Prevention, 929 F.3d 1079, 1087 n.4 (9^th Cir. 2019)

[3] An amicus brief on behalf of a group of retired federal judges, a somewhat unusual source for an amicus brief, discusses the means courts have to assess whether information is legitimately withheld on national security grounds and to structure discovery and litigation so as to protect legitimate secrets while obtaining sufficient information for a proceeding to move forward.  Brief Of Former Federal Judges As Amici Curiae In Support Of Respondents, United States v. Zubaydah, No. 20-827, 22-29 (Aug. 20, 2021).

[4] As Justice Harlan put it in the Pentagon Papers case, New York Times v. U.S., 403 U.S. 713 (1971), one question in the case was “[w]hether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such a breach of secrecy.” Id. at 754 (Harlan, J., dissenting); accord, id. at 728 (Stewart, J., concurring)(“[o]ther nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept.”).

[5] Several scholars have explored the federal government’s increased reliance contractors. Paul Verkuil, former head of the Administrative Conference of the United States, has written two books on the subject. PAUL R. VERKUIL, VALUING BUREAUCRACY: THE CASE FOR PROFESSIONAL GOVERNMENT (Cambridge University Press 2017); PAUL R. VERKUIL, OUTSOURCING SOVEREIGNTY: WHY PRIVATIZATION OF GOVERNMENT FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT (Cambridge Univ. Press 2007).  A series of essays discussing Valuing Bureaucracy, published by The Regulatory Review, appears here. 

[6] For conflicting views regarding the definition of “secret,” see 26 Fed. Prac. & Proc. Evid. §5665 (available on westlaw).

[7] In Fitzgibbon, the District Court had held that the location of a CIA station was publicly accessible because it had been included in a 1975 congressional report.  The D.C. Circuit held that the station location information had not been “publicly acknowledged” for FOIA purposes, and thus the information could be withheld from the FOIA requester.

[8] Indeed, the D.C. Circuit recently noted, that had it rejected attempts to establish an agency’s official acknowledgement based on disclosures by Congress, the media, the agency’s former employees, or foreign governments, Knight First Amendment Institute, supra, at *4.  The Court noted one limited exception to the general rule that one agency could not waive another agency’s right to invoke a FOIA exemption under the “official acknowledgement” doctrine: when public disclosure is “‘made by an authorized representative of the agency’s parent,’” it is ‘official’ as to the subordinate agency.”

[9] Judge Paez, in defending the Ninth Circuit’s opinion to hear Zubaydah en banc, noted that the application of the Intel factors addresses Judge Bress’ and the Government’s “overwrought concerns” about foreign litigants abuse of the opportunities for discovery provided by section 1782(a). Husayn v. Mitchell, 965 F.3d at 781 (Paez, concurring in the denial of en banc review). In the panel opinion, Judge Paez noted that the District Judge had applied the Intel factors in initially issuing the subpoena, and argued that the initial order issuing the subpoena was not on appeal. Husayn v. Mitchell, 938 F.3d at 1130 n.13. Neither Judge Gould, in his dissent from the panel opinion, nor Judge Bress, in his dissent from the denial of rehearing en banc discussed the Intel factors or the district court’s application of them.