Bench Memos

Vigorous Dissent from Ninth Circuit Denial of Rehearing En Banc on State-Secrets Privilege

In 2017, the suspected Al Qaeda-associated* terrorist known as Abu Zubaydah filed an action (under 28 U.S.C. § 1782) seeking discovery related to the CIA’s covert activities in Poland. The United States moved to quash the discovery; it formally invoked the state-secrets doctrine and submitted supporting declarations from then-CIA director Mike Pompeo. The district court denied Zubaydah’s request. But on appeal a divided panel of the Ninth Circuit directed the district court to try to “disentangle” information that supposedly wasn’t protected by the state-secrets privilege from that which was.

In an order today in Husayn v. United States, the Ninth Circuit denied rehearing en banc of the panel decision. But Judge Daniel Bress, joined by eleven other judges—including Clinton appointee Ronald Gould, who was the dissenter on the original panel—vigorously dissented. (Two Republican appointees didn’t take part, presumably because of recusal obligations.)

Here are the summary paragraphs from Bress’s 22-page dissent:

The serious legal errors in the majority opinion, and the national security risks those errors portend, qualified this case for en banc review. The majority opinion treats information that is core state secrets material as fair game in discovery; it vitiates the state secrets privilege because of information that is supposedly in the public domain; it fails to give deference to the CIA Director on matters uniquely within his national security expertise; and it discounted the government’s valid national security concerns because the discovery was only sought against government contractors—even though these contractors were the architects of the CIA’s interrogation program and discovery of them is effectively discovery of the government itself.

The majority then tasked the district court with “disentangling” supposedly non-privileged information from information the majority acknowledged was clearly privileged. And all of this is happening in the context of a § 1782 application, where any resulting discovery will be transferred overseas to a foreign proceeding in Poland that purports to be investigating our country’s intelligence efforts. This is not the result that precedent allowed, and I fear the majority’s decision will pose unnecessary risks to our country’s safety and security.

* For the first few hours this post was up, I mistakenly said “Al Qaeda terrorist” rather than “Al Qaeda-associated terrorist.”

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