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Muhammad Husayn v. Mitchell

United States Court of Appeals, Ninth Circuit

September 18, 2019

Zayn Al-Abidin Muhammad Husayn; Joseph Margulies, Petitioners-Appellants,
v.
James Elmer Mitchell; John Jessen, Respondents,United States of America, Intervenor-Appellee.

          Argued and Submitted March 5, 2019 Seattle, Washington

          Appeal from the United States District Court No. 2:17-cv-00171-JLQ for the Eastern District of Washington Justin L. Quackenbush, District Judge, Presiding

          David F. Klein (argued) and John Chamberlain, Pillsbury Winthrop Shaw Pittman LLP, Washington, D.C.; Jerry Moberg, Jerry Moberg & Associates, Ephrata, Washington; for Petitioners-Appellants.

          H. Thomas Byron III (argued), Appellate Staff; Joseph H. Harrington, United States Attorney; Civil Division, United States Department of Justice, Washington, D.C.; for Intervenor-Appellee.

          Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Dean D. Pregerson, [*] District Judge.

         SUMMARY[**]

         State Secrets Privilege / Subpoena

         The panel reversed the district court's order quashing a subpoena sought by Abu Zubaydah, who is currently held at the U.S. detention facility in the Guantanamo Bay Naval Base in Cuba, and his attorney ("Petitioners"), and dismissing the case in its entirety.

         Petitioners filed an ex parte application for discovery pursuant to 28 U.S.C. § 1782, and sought an order to subpoena James Elmer Mitchell and John Jessen for their depositions for use in an ongoing criminal investigation in Poland about the torture to which Abu Zubaydah was subjected in that country. The district court originally granted the discovery application, but subsequently quashed the subpoenas after the U.S. government intervened and asserted the state secrets privilege.

         The panel agreed with the district court that certain information requested was not privileged because it was not a state secret that would pose an exceptionally grave risk to national security. The panel agreed that the government's assertion of the state secrets privilege was valid over much of the information requested. The panel concluded, however, that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information. The panel remanded for further proceedings.

         Judge Gould dissented, and would affirm the district court. Judge Gould would defer to the view of then-CIA Director and current Secretary of State Michael Pompeo that the disclosure of secret information in this proceeding "reasonably could be expected to cause serious, and in many instances, exceptionally grave damage to U.S. national security."

          OPINION

          PAEZ, CIRCUIT JUDGE

         Zayn al-Abidin Muhammad Husayn ("Abu Zubaydah")[1]is currently held at the U.S. detention facility in the Guantanamo Bay Naval Base in Cuba. Abu Zubaydah was formerly detained as part of the Central Intelligence Agency ("CIA")'s detention and interrogation program, also commonly known as the post-9/11 "enhanced interrogation" or torture program. In 2017, Abu Zubaydah and his attorney, Joseph Margulies (collectively "Petitioners"), filed an ex parte application for discovery pursuant to 28 U.S.C. § 1782, which permits certain domestic discovery for use in foreign proceedings. They sought an order to subpoena James Elmer Mitchell and John Jessen for their depositions for use in an ongoing criminal investigation in Poland about the torture to which Abu Zubaydah was subjected in that country. The district court originally granted the discovery application, but subsequently quashed the subpoenas after the U.S. government intervened and asserted the state secrets privilege.

         The Supreme Court has long recognized that in exceptional circumstances, courts must act in the interest of the country's national security to prevent the disclosure of state secrets by excluding privileged evidence from the case and, in some instances, dismissing the case entirely. See Totten v. United States, 92 U.S. 105 (1875); see also United States v. Reynolds, 345 U.S. 1 (1953). This appeal presents a narrow but important question: whether the district court erred in quashing the subpoenas after concluding that not all the discovery sought was subject to the state secrets privilege.

         We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. We agree with the district court that certain information requested is not privileged because it is not a state secret that would pose an exceptionally grave risk to national security. We also agree that the government's assertion of the state secrets privilege is valid over much of the information requested. We conclude, however, that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information.

         We have "emphasize[d] that it should be a rare case when the state secrets doctrine leads to dismissal at the outset of a case." Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1092 (2010) (en banc); see also Reynolds, 345 U.S. at 9–10 (noting that "[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers"). Here, the underlying proceeding is a limited discovery request that can be managed by the district court, which is obligated "to use its fact-finding and other tools to full advantage before it concludes that the rare step of dismissal is justified." Mohamed, 614 F.3d at 1093. We therefore reverse the district court's judgment dismissing Petitioners' section 1782 application for discovery and remand for further proceedings.[2]

         I.

         A.

         In late March 2002, Pakistani government authorities, working with the CIA, captured Abu Zubaydah in Pakistan. At the time, Abu Zubaydah was thought to be a high-level member of Al-Qa'ida[3] with detailed knowledge of terrorist plans. A 2014 report by the Senate Select Committee on Intelligence Study on the CIA's detention and interrogation program ("Senate Select Committee Report") later revealed this characterization to be erroneous.

         In the first four years of his detention, Abu Zubaydah was held as an enemy combatant and transferred to various secret CIA "dark sites" for interrogation. Journalists, nongovernmental organizations, and Polish government officials have widely reported that one of those sites was in Poland. In 2015, the European Court on Human Rights ("ECHR") found that Abu Zubaydah was detained at a CIA site in Poland from December 2002 to September 2003.

         Numerous sources also confirm that Abu Zubaydah was subjected to so-called "enhanced interrogation" techniques while detained at these CIA sites. These techniques were proposed and developed by Mitchell and Jessen,[4] who at that point were independent contractors for the CIA. They worked on "novel interrogation methods" intended to break down Abu Zubaydah's resistance, including the use of insects-to take advantage of his entomophobia-and mock burial. The details of Abu Zubaydah's treatment during this period are uncontroverted: he was persistently and repeatedly waterboarded; he spent hundreds of hours in a "confinement box," described as coffin-sized; he was subjected to various combinations of interrogation techniques including "walling,[5] attention grasps,[6] slapping, facial hold, stress positions, cramped confinement, white noise and sleep deprivation"; his food intake was manipulated to minimize the potential of vomiting during waterboarding. To use colloquial terms, as was suggested by the Senate Select Committee Report, Abu Zubaydah was tortured.

         The ECHR found that some of this torture took place in Poland. Mitchell and Jessen traveled to the CIA black site there at least twice to supervise the interrogations. Declassified CIA cables confirm Mitchell's and Jessen's involvement in Abu Zubaydah's torture. Abu Zubaydah was eventually transferred to a succession of facilities outside of Poland before arriving in Guantanamo Bay, where he remains today. Abu Zubaydah has allegedly sustained permanent brain damage and physical impairments, including over 300 seizures in the span of three years and the loss of his left eye.

         In 2010, Abu Zubaydah's attorneys and certain humanitarian organizations filed a criminal complaint in Poland on his behalf seeking to hold Polish officials accountable for their complicity in his unlawful detention and torture. That investigation closed without any prosecutions or convictions. In 2013, Abu Zubaydah's attorneys filed an application with the ECHR alleging that Poland had violated the Convention for the Protection of Human Rights and Fundamental Rights and failed to undertake a proper investigation. This resulted in the ECHR's decision in Case of Husayn (Abu Zubaydah) v. Poland, No. 7511/13, Eur. Ct. H.R. (2015). The court found "beyond reasonable doubt" that Abu Zubaydah was detained in Poland, that "the treatment to which [he] was subjected by the CIA during his detention in Poland . . . amount[ed] to torture," and that Poland had failed to abide by its obligations under the European Convention on Human Rights. The court accordingly awarded damages to Abu Zubaydah.

         After the ECHR issued its decision-finding, among other things, that Poland failed to sufficiently investigate human rights violations related to Abu Zubaydah's treatment in Poland-Polish authorities reopened their investigations into the violations, focusing on the culpability of Polish citizens and government officials in Abu Zubaydah's detention. The Polish government requested evidence from the United States through the Mutual Legal Assistance Treaty ("MLAT") between the two countries. The United States denied the Polish government's request. Subsequently, Polish prosecutors followed up with Abu Zubaydah's lawyers to ask for assistance with obtaining evidence necessary to pursue the prosecution.[7]

         B.

         Abu Zubaydah and his attorney, Margulies, filed an ex parte application for discovery in the Eastern District of Washington pursuant to 28 U.S.C. § 1782. Section 1782 provides that "[t]he district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal." Abu Zubaydah and his attorney sought a discovery order subpoenaing Mitchell and Jessen to produce documents and give deposition testimony for use in the ongoing criminal investigation in Poland.[8] They requested that Mitchell and Jessen provide, among other related items, documents concerning the detention facility in Poland, the identities of Polish officials involved in the establishment or operation of the detention facility, the use of interrogation techniques, conditions of confinement and torture of those being held, and any contracts made between Polish government officials or private persons residing in Poland and U.S. personnel for use of the property upon which the detention facilities was located.

         The United States submitted a "Statement of Interest" arguing that the district court should not grant Abu Zubaydah's application based on the four factors outlined in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).[9] The district court evaluated the section 1782 application under the Intel factors and found that the Intel factors weighed in favor of granting the application for discovery. It noted that the government's concerns regarding privilege and classification of documents were hypothetical and could be raised at a later point. The district court granted the application and Petitioners served the subpoenas on Mitchell and Jessen.

         After Mitchell and Jessen entered their appearance in district court,[10] the U.S. government filed a motion to intervene and a motion to quash the subpoenas. In support of the latter motion, the government made three arguments. First, it argued that the district court lacked jurisdiction over the case under 28 U.S.C. § 2241(e)(2), which strips jurisdiction for courts to hear or consider any nonhabeas action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of a designated enemy combatant outside the provisions of the Detainee Treatment Act of 2005, 10 U.S.C. § 801. Second, the government argued that the discovery sought is protected by the state secrets privilege, relying on two declarations from then-CIA Director, Michael Pompeo.[11] Third, it argued that both the National Security Act of 1947 and the Central Intelligence Agency Act of 1949 prohibit the discovery sought.

         The district court granted the government's motion to intervene and motion to quash the subpoenas. The court rejected the government's first argument regarding the lack of jurisdiction, noting that the government offered nothing to establish an agency relationship between Mitchell and Jessen and the United States. The court then applied the three-part test outlined in Mohamed, 614 F.3d at 1080, to evaluate the government's assertion of the state secrets privilege.[12] First, it found that the government had followed the procedural requirements for invoking the privilege. Second, it concluded that the fact of the CIA's involvement with a facility in Poland was not a state secret that posed an exceptionally grave risk to national security. The court agreed, however, that other information, such as the roles and identities of Polish citizens involved with the CIA site, is covered by the state secrets privilege. Third, the court concluded that "[m]eaningful discovery cannot proceed in this matter without disclosing information that the Government contends is subject to the state secrets privilege," and thus it granted the motion to quash the subpoenas in their entirety and entered judgment. Abu Zubaydah and Margulies timely appealed.

         II.

         "We review de novo the interpretation and application of the state secrets doctrine and review for clear error the district court's underlying factual findings." Mohamed, 614 F.3d at 1077 (citing Al-Haramain Islamic ...


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