United States v. Zubaydah

P R E L I M I N A R Y P R I N T
Volume 595 U. S. Part 2
Pages 195–266
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 3, 2022
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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TERM, 2021
195
Syllabus
UNITED STATES v. HUSAYN, aka ZUBAYDAH, et al.
certiorari
to the united states court of appeals for
the ninth circuit
No. 20–827. Argued October 6, 2021—Decided March 3, 2022
In the aftermath of the September 11, 2001, terrorist attacks, the Central
Intelligence Agency believed that Abu Zubaydah was a senior al Qaeda
lieutenant likely to possess knowledge of future attacks against the
United States. Zubaydah—currently a detainee at the Guantánamo
Bay Naval Base—says that in 2002 and 2003 he was held at a CIA
detention site in Poland, where he was subjected to “enhanced interro-
gation” techniques. In 2010, Zubaydah fled a criminal complaint in Po-
land, seeking to hold accountable any Polish nationals involved in his
alleged mistreatment at the CIA site ostensibly located in that country.
The United States denied multiple requests by Polish prosecutors for
information related to Zubaydah's claim on the ground that providing
such information would threaten national security. Zubaydah fled a
discovery application pursuant to 28 U. S. C. § 1782, which permits dis-
trict courts to order production of testimony or documents “for use in a
proceeding in a foreign . . . tribunal.” Zubaydah asked for permission
to serve two former CIA contractors with subpoenas requesting infor-
mation regarding the alleged CIA detention facility in Poland and Zu-
baydah's treatment there. The Government intervened and asserted
the st ate secrets pr iv i lege i n oppositi on to Zubaydah's discovery
request.
The District Court rejected the Government's claim that merely con-
frming that a detention site was operated in Poland would threaten
national security. The District Court nevertheless dismissed Zubay-
dah's discovery application. It concluded that the state secrets privi-
lege applied to operational details concerning the CIA's cooperation with
a foreign government, and that meaningful discovery could not proceed
without disclosing privileged information. On appeal, the Ninth Circuit
agreed with the District Court that much of the information sought by
Zubaydah was protected from disclosure by the state secrets privilege,
but the panel majority concluded that the District Court had erred when
it dismissed the case. It believed that the state secrets privilege did
not apply to publicly known information. The panel majority also con-
cluded that because the CIA contractors were private parties and not
Government agents, they could not confrm or deny anything on the
Government's behalf. Given these holdings, the panel majority de-

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196 UNITED
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Syllabus
termined that discovery into three topics could continue: the existence
of
a CIA detention facility in Poland, the conditions of confnement and
interrogation at that facility, and Zubaydah's treatment at that location.
Held: The judgment is reversed, and the case is remanded.
938 F. 3d 1123, reversed and remanded.
Justice Breyer delivered the opinion of the Court with respect to
all but Parts II–B–2 and III, concluding that, in the context of Zubay-
dah's § 1782 discovery application, the Court of Appeals erred in holding
that the state secrets privilege did not apply to information that could
confrm or deny the existence of a CIA detention site in Poland.
Pp. 204–210, 211–212, 214.
(a) The state secrets privilege permits the Government to prevent
disclosure of information when that disclosure would harm national se-
curity interests. United States v. Reynolds, 345 U. S. 1, 10–11. To as-
sert the privilege, the Government must submit to the court a “formal
claim of privilege, lodged by the head of the department which has con-
trol over the matter.” Id., at 7–8. “The court itself must determine
whether the circumstances are appropriate for the claim of privilege.”
Id., at 8. However, in making that determination, a court should exer-
cise its traditional “reluctan[ce] to intrude upon the authority of the
Executive in military and national security affairs,” Department of
Navy v. Egan, 484 U. S. 518, 530. If the Government has offered a valid
reason for invoking the privilege, “the showing of necessity” by the
party seeking disclosure of the ostensibly privileged information will
“determine how far the court should probe in satisfying itself that the
occasion for invoking the privilege is appropriate.” Reynolds, 345
U. S., at 11. The narrow evidentiary dispute before the Court asks
how these principles apply to Zubaydah's specifc discovery requests.
Pp. 204–206.
(b) In certain circumstances, the Government may assert the state
secrets privilege to bar the confrmation or denial of information that
has entered the public domain through unoffcial sources. Here, the
information held by the Ninth Circuit to be nonprivileged would neces-
sarily tend to confrm (or deny) that the CIA maintained a detention
site in Poland. The Government has shown that such information—
even if already made public through unoffcial sources—could signif-
cantly harm national security. The CIA Director stated in his declara-
tion that “clandestine” relationships with foreign intelligence services
are “critical” and “based on mutual trust that the classifed existence
and nature of the relationship will not be disclosed.” App. to Pet. for

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Syllabus
Cert. 135a–136a. Given the nature of Zubaydah's specifc discovery re-
quests
there is a reasonable danger that in this case a former CIA in-
sider's confrmation of confdential cooperation between the CIA and a
foreign intelligence service could badly damage the CIA's clandestine
relationships with foreign authorities. Pp. 206–210.
(c) The CIA contractors' confrmation (or denial) of the information
Zubaydah seeks would be tantamount to disclosure by the CIA itself.
The contractors worked directly for the CIA and had a central role in
the events in question. The CIA Director describes the harm that
would result from the contractors responding to the subpoenas, not the
risks of a response from the CIA (or any other CIA offcial or em-
ployee). P. 211.
(d) Zubaydah's need for location information is not great, perhaps
close to nonexistent. At oral argument, he suggested that he did not
seek confrmation of the detention site's Polish location so much as he
sought information about what had happened there. P. 212.
(e) Here, the state secrets privilege applies to the existence (or non-
existence) of a CIA facility in Poland, and therefore precludes further
discovery into all three categories of information the Ninth Circuit con-
cluded to be nonprivileged. P. 212.
(f ) This case is remanded with instructions to dismiss Zubaydah's cur-
rent application for discovery under § 1782. P. 214.
Breyer, J., delivered the opinion of the Court, except as to Parts II–
B–2 and III. Roberts, C. J., joined that opinion in full, Kavanaugh and
Barrett, JJ., joined as to all but Part II–B–2, Kagan, J., joined as to all
but Parts III and IV and the judgment of dismissal, and Thomas and
Alito, JJ., joined Part IV. Thomas, J., fled an opinion concurring in part
and concurring in the judgment, in which Alito, J., joined, post, p. 216.
Kavanaugh, J., fled an opinion concurring in part, in which Barrett, J.,
joined, post, p. 232. Kagan, J., fled an opinion concurring in part and
dissenting in part, post, p. 234. Gorsuch, J., fled a dissenting opinion, in
which Sotomayor, J., joined, post, p. 237.
Acting Solicitor General Fletcher argued the cause for
petitioner. With him on the brief were Acting Solicitor
General Prelogar, Acting Assistant Attorney General Boyn-
ton, Deputy Solicitor General Kneedler, Deputy Assistant
Attorney General Harrington, Anthony A. Yang, Sharon
Swingle, and H. Thomas Byron III.
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David F. Klein argued the cause for respondents. With
h
im on the brief were John Patrick Chamberlain and Joseph
Margulies, pro se.*
Justice Breyer delivered the opinion of the Court, ex-
cept as to Parts II–B–2 and III.†
Abu Zubaydah, a detainee in the Guantánamo Bay Naval
Base, and his attorney fled an ex parte 28 U. S. C. § 1782
motion in Federal District Court seeking to subpoena two
former Central Intelligence Agency contractors. Zubaydah
sought to obtain information (for use in Polish litigation)
about his treatment in 2002 and 2003 at a CIA detention site,
*Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by Lawrence S. Lustberg, James G. Connell
III, Alka Pradhan, David D. Cole, Dror Ladin, Hina Shamsi, and Ashley
Gorski; for the Bureau of Investigative Journalism et al. by Daniel M.
Green feld; for the Center for Justice and Accountability by Carmen K.
Cheung; for the Coalition of Human Rights Scholars by Matthew R. Nicely
and Devin S. Sikes; for the Council on American-Islamic Relations by
Lena F. Masri and Justin Sadowsky; for Current and Former U. N. Spe-
cial Rapporteurs by Hope Metcal f; for the Electronic Frontier Foundation
by Richard R. Wiebe, Cindy A. Cohn, David Greene, Lee Tien, Kurt Op-
sahl, Andrew Crocker, and Thomas E. Moore III; for Evidence Law Pro-
fessors by Timothy K. Ford; for Former Federal Judges by Meaghan Ver-
Gow; for Human Rights Organizations by Timothy J. Droske; for the
National Religious Campaign Against Torture et al. by Michael K. Robert-
son, David J. Butler, and Anna M. Greve; for Physicians for Human
Rights et al. by Gerson H. Smoger; for Public Citizen by Wendy Liu, Alli-
son M. Zieve, and Scott L. Nelson; for September 11th Families for Peace-
ful Tomorrows by Steven S. Sparling, Marjorie E. Sheldon, and Arielle
Warshall Katz; for Torture Survivors Maher Arar et al. by Hannah R.
Garry; and for Bilal Abdul Kareem by Eric L. Lewis and Tara J.
Plochocki.
Briefs of amici curiae were fled for the Center for Constitutional
Rights by Baher Azmy, Katherine Gallagher, and Maria LaHood; and for
the Floyd Abrams Institute for Freedom of Expression et al. by David
A. Schulz.
†Justice Kagan joins all but Parts III and IV of this opinion and the
judgment of dismissal.

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which Zubaydah says was located in Poland. See 28 U. S. C.
§
1782 (permitting district courts to order production of testi-
mony or documents “for use in a proceeding in a foreign . . .
tr ibuna l”). The Government intervened. It moved to
quash the subpoenas based on the state secrets privilege.
That privilege allows the Government to bar the disclosure
of information that, were it revealed, would harm national
security. United States v. Reynolds, 345 U. S. 1, 6–7 (1953).
The Court of Appeals for the Ninth Circuit mostly ac-
cepted the Government's claim of privilege. Husayn v.
Mitchell, 938 F. 3d 1123, 1134 (2019). But it concluded that
the privilege did not cover information about the location of
the detention site, which Zubaydah alleges to have been in
Poland. Ibid. The Court of Appeals believed that the
site's location had already been publicly disclosed and that
the state secrets privilege did not bar disclosure of informa-
tion that was no longer secret (and which, in any event, was
being sought from private parties). Id., at 1132–1133. The
Government argues that the privilege should apply because
Zubaydah's discovery request could force former CIA con-
tractors to confrm the location of the detention site and that
confrmation would itself signifcantly harm national security
interests. In our view, the Government has provided suffi-
cient support for its claim of harm to warrant application of the
privilege. We reverse the Ninth Circuit's contrary holding.
I
A
For present purposes, we can assume the following: In the
aftermath of the September 11, 2001, terrorist attacks, the
CIA believed that Zubaydah was a senior al Qaeda lieuten-
ant likely to possess knowledge of future attacks against the
United States. S. Rep. No. 288, 113th Cong., 2d Sess., p. 21,
and n. 60 (2014) (SSCI Report). In March 2002, Zubaydah
was captured by Pakistani government offcials working
with the CIA. Id., at 21. The CIA then transferred him
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to a detention site that some sources allege was located in
Thai
land. Id., at 22–23; see also 3 Record 552.
Zubaydah remained at this location for several months.
SSCI Report 22, 67. During that time he was subjected to
what the Government then called “enhanced interroga-
tion” techniques, including waterboarding, stress positions,
cramped confnement, and sleep deprivation. Id., at 40–41.
The Government has since concluded that this treatment
constituted torture. See Press Conference by the Presi-
dent, Offce of the Press Secretary, Aug. 1, 2014, https://
obamawhitehouse.archives.gov/the-press-office/2014/08/01/
press-conference-president.
In December 2002, the CIA transferred Zubaydah to a dif-
ferent detention site—the site at issue here. SSCI Re-
port 67. The CIA has never confrmed its location, but
Zubaydah and many others believe it was in Poland.
In September 2006, the Government transferred Zubaydah
to its detention facility at the Guantánamo Bay Naval Base.
3 Record 583. He has been detained in Guantánamo Bay
ever since. 938 F. 3d, at 1125.
Some of this information and related details have appeared
in various publicly-available documents, including:
•
The almost-500 page Executive Summary of a Senate Se-
lect Committee on Intelligence Report concerning the
CIA's use of “enhanced interrogation” techniques. See
generally SSCI Report.
•
The European Court of Human Rights' fndings concern-
ing Zubaydah's treatment, which that court concluded
had taken place in Poland. 3 Record 382–607.
•
Testimony given by James Mitchell and John Jessen, the
former CIA contractors who are the targets of Zubay-
dah's subpoenas and who designed and implemented the
CIA's post-September 11 enhanced-interrogation pro-
gram. Id., at 106–149; Tr. in United States v. Khalid
Shaikh Mohammad, et al. (Jan. 21–31, 2020).
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•
Mitchel
l's memoir of his involvement with the CIA's
enhanced-interrogation program. See generally J.
Mitchell & B. Harlow, Enhanced Interrogation: Inside
the Minds and Motives of the Islamic Terrorists Trying
to Destroy America (2016).
Some of these and other publicly available sources say
that, in 2002 and 2003, Zubaydah was detained at a CIA facil-
ity in Poland. But, the Government states, the CIA itself
has never confrmed that one or more of its clandestine de-
tention sites was located in any specifc foreign country.
App. to Pet. for Cert. 134a. Neither, as far as we can tell
from the record, have the contractors Mitchell and Jessen
named the specifc foreign countries in which CIA detention
sites were located. Rather, they (like the SSCI Report)
have used code names to refer to the locations where Zubay-
dah was held. See, e. g., SSCI Report 62; Tr. in United
States v. Khalid Shaikh Mohammad, et al. (Jan. 21, 2020),
at 30190. Finally, although at least one former Polish gov-
ernment offcial has stated that Poland cooperated with the
CIA, to our knowledge, the Polish government itself has
never confrmed such allegations. 3 Record 472.
B
1
In 2010, lawyers representing Zubaydah fled a criminal
complaint in Poland asking prosecutors there to hold ac-
countable any Polish nationals who were involved in his
alleged mistreatment in that country. 938 F. 3d, at 1127.
Invoking a Mutual Legal Assistance Treaty, the Polish
prosecutors asked American authorities for information.
3 Record 441. The United States Department of Justice re-
fused their request on the ground that providing the infor-
mation would adversely affect our national security. Id.,
at 444; see also App. to Brief for Petitioner 4a. The Polish
investigation closed without prosecutions. 938 F. 3d, at 1127.
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In 2015, the European Court of Human Rights considered
the
matter. It concluded that the CIA had held and tor-
tured Zubaydah at a site located in Poland. 3 Record 558.
It also stated that Poland had failed adequately to investi-
gate the human rights violations that the court believed had
occurred on Polish soil. Id., at 581.
In response, the Polish prosecutors reopened their investi-
gation. 938 F. 3d, at 1128. They again requested informa-
tion from the United States under the Mutual Legal Assist-
ance Treaty, and the United States again denied their
requests. Ibid.; see also 3 Record 632–633. At that point,
the Polish prosecutors invited Zubaydah's lawyers to submit
evidence that would aid their investigation.
2
Soon afterward, Zubaydah (and his lawyer) fled the ex
parte 28 U. S. C. § 1782 discovery application now before us.
938 F. 3d, at 1128. Section 1782 says that a district court
may order a person in its district to provide testimony or
documents “for use in a proceeding in a foreign . . . tribunal,
including criminal investigations conducted before formal ac-
cusation.” Zubaydah asked for permission to serve the con-
tractors, Mitchell and Jessen, with subpoenas commanding
them to appear for depositions and to produce “documents,
memoranda and correspondence” regarding an alleged CIA
detention facility in Poland and Zubaydah's treatment there.
The Appendix, infra, at 215–216, lists Zubaydah's document
requests. Twelve of Zubaydah's thirteen document re-
quests referred to Poland, and 10 specifcally requested docu-
ments “concerning ” an alleged CIA detention facility located
in Stare Kiejkuty, Poland. Ibid. The District Court
granted Zubaydah's request. App. to Pet. for Cert. 70a.
The Government intervened. 938 F. 3d, at 1129. Sec-
tion 1782(a) provides that a “person may not be compelled to
give his testimony or statement or to produce a document or
other thing in violation of any legally applicable privilege.”
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The Government claimed that disclosure of the information
Zubaydah
sought would violate the state secrets privilege.
938 F. 3d, at 1129. It asked the court to quash the subpoe-
nas. Ibid.
To support its privilege claim, the Government submitted
a declaration from the Director of the CIA. App. to Pet.
for Cert. 123a–137a. The Director said that Mitchell and
Jessen's response to Zubaydah's subpoenas would, in this
case, confrm or deny whether Poland had cooperated with
the CIA. Id., at 129a–130a. And that confrmation, the Di-
rector explained, would signifcantly harm our national secu-
rity interests. Id., at 131a.
The District Court granted the Government's motion to
quash the subpoenas. Id., at 60a. It did not accept the
Government's claim “that merely confrming [that] a deten-
tion site was operated in Poland would pose a grave risk to
national security.” Id., at 59a. But it nonetheless thought
the state secrets privilege applied. It concluded that the
state secrets privilege allowed the Government to suppress
“operational details concerning the specifcs of cooperation
with a foreign government, including the roles and identities
of foreign individuals.” Id., at 55a–56a (emphasis added).
And it believed that it was not possible to conduct “[m]ean-
ingful discovery . . . in this matter” without disclosing these
(or other) protected types of information. Id., at 57a. The
court rejected Zubaydah's suggestion that it would be possi-
ble to conduct further discovery through the use of code
names that would conceal the locations of CIA detention
facilities. Id., at 55a–57a. The court consequently dis-
missed Zubaydah's § 1782 application. Id., at 60a.
Zubaydah appealed. A divided panel of the Court of Ap-
peals for the Ninth Circuit affrmed in part and reversed in
part. The panel listed the following examples of privileged
information sought by Zubaydah: “documents, memoranda,
and correspondence about the identities and roles of foreign
individuals involved with the detention facility, operational
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details about the facility, and any contracts made with Polish
gover
nment offcials or private persons residing in Poland
[that] might implicate the CIA's intelligence gathering ef-
forts.” 938 F. 3d, at 1134; see also Appendix, infra, at 215–
216. But the panel majority held that the District Court
nonetheless should not have dismissed the case. That was
because, in its view, the state secrets privilege did not apply
to information that was already publicly known. 938 F. 3d,
at 1133. It added that because Mitchell and Jessen are “pri-
vate parties,” their disclosures would not tend to show that
the Government itself had “confrm[ed] or den[ied] any-
thing.” Ibid.
More specifcally, the panel majority wrote that three cate-
gories of information were not covered by the state secrets
privilege: “the fact that the CIA operated a detention facility
in Poland in the early 2000s; information about the use of
interrogation techniques and conditions of confnement in
that detention facility; and details of Abu Zubaydah's treat-
ment there.” Id., at 1134 (emphasis added). The panel then
remanded the case to the District Court for further proceed-
ings. Id., at 1135, 1137–1138.
The Court of Appeals denied, over a twelve-judge dissent,
the Government's request for rehearing en banc. 965 F. 3d
775 (2020). We granted the Government's petition for cer-
tiorari to determine whether the Court of Appeals erred.
We believe that it did.
II
A
The state secrets privilege permits the Government to
prevent disclosure of information when that disclosure would
harm national security interests. See Reynolds, 345 U. S.,
at 10–11 (disclosure of Air Force accident investigation re-
port could disclose “military secrets”); In re Sealed Case, 494
F. 3d 139, 144 (CADC 2007) (disclosure of inspector general
reports would “create the risk of revealing covert operatives,

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organizational structure and functions, and intelligence-
gather
ing sources, methods, and capabilities”); see also Mol-
erio v. FBI, 749 F. 2d 815, 819, 822 (CADC 1984) (Scalia, J.)
(disclosure of FBI's rationale for not hiring plaintiff “would
impair the national security”).
To assert the privilege, the Government must submit to
the court a “formal claim of privilege, lodged by the head of
the department which has control over the matter, after ac-
tual personal consideration by that offcer.” Reynolds, 345
U. S., at 7–8. “The court itself must determine whether the
circumstances are appropriate for the claim of privilege.”
Id., at 8. “Judicial control over the evidence in a case cannot
be abdicated to the caprice of executive offcers.” Id., at 9–
10. Nonetheless, in assessing the Government's claim that
disclosure may harm national security, courts must exercise
the traditional “reluctan[ce] to intrude upon the authority
of the Executive in military and national security affairs.”
Department of Navy v. Egan, 484 U. S. 518, 530 (1988).
Although the court itself must assess the suffciency of the
Government's privilege claim, “the showing of necessity
which is made,” by the party seeking disclosure of the osten-
sibly privileged information, “will determine how far the
court should probe in satisfying itself that the occasion for
invoking the privilege is appropriate.” Reynolds, 345 U. S.,
at 11. “Where there is a strong showing of necessity, the
claim of privilege should not be lightly accepted.” Ibid. In
contrast, “where necessity is dubious, a formal claim of privi-
lege,” demonstrating “a reasonable possibility” of harm to
national security, “will have to prevail.” Ibid. And in all
events, “even the most compelling necessity cannot overcome
the claim of privilege if the court is ultimately satisfed that
military secrets are at stake.” Ibid.
Justice Gorsuch agrees that the Government must show
a reasonable danger of harm to national security, that a court
must decide for itself whether the occasion is appropriate for
claiming the privilege, and that in camera review is not al-
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ways required to make that determination. Post, at 253–
255
(dissenting opinion). We diverge from the dissent on
how those principles should apply to the specifc discovery
requests Zubaydah has made in this litigation. Of course,
our answer to that question is not a judgment of Zubaydah's
alleged terrorist activities, nor of his treatment at the hands
of the United States Government. Obviously the Court con-
dones neither terrorism nor torture, but in this case we are
required to decide only a narrow evidentiary dispute.
B
An important factor in our analysis of that narrow issue is
the specifc language of Zubaydah's discovery requests and
the Ninth Circuit's opinion, which both make it clear that any
response Mitchell and Jessen give to Zubaydah's subpoenas
would tend to confrm (or deny) the existence of a CIA deten-
tion site in Poland. As we have said, 12 of Zubaydah's 13
document requests contain the word “Poland” or “Polish.”
Appendix, infra, at 215–216. (The exception is a broad re-
quest for any and all documents concerning Zubaydah him-
self. Ibid.) Ten of the requests specifcally seek “docu-
ments, correspondence, or memoranda . . . concerning ” the
alleged CIA detention site in Stare Kiejkuty, Poland. Ibid.
If Mitchell and Jessen acknowledge the existence of docu-
ments responsive to these requests, they will effectively ac-
knowledge the existence of the detention facility referenced
therein. Conversely, denying the existence of responsive
documents would deny the existence of such a facility. In
any event, any response to the lion's share of Zubaydah's
document requests will either confrm or deny that the CIA
operated a detention site in Poland.
The problem is confrmed by the Ninth Circuit's opinion,
which allowed continued discovery into three topics: the ex-
istence of a CIA detention facility in Poland, the conditions
of confnement and interrogation at that facility, and Zubay-
dah's treatment at that location. 938 F. 3d, at 1134. The
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frst category, of course, requires Mitchell and Jessen to di-
rec
tly confrm or deny the existence of a Polish detention
site. The latter two categories require, at the very least,
confrmation or denial, since acknowledging that any con-
fnement, interrogation, or treatment occurred at a CIA de-
tention facility located in Poland would confrm that such a
facility exists or existed.
Because any response to Zubaydah's subpoenas allowed by
the Ninth Circuit's decision will have the effect of confrma-
tion or denial (by the Government or its former contractors)
of the existence of a CIA facility in Poland, the primary ques-
tion for us must be whether the existence (or non-existence)
of a CIA detention facility in Poland falls within the scope
of the state secrets privilege. For the reasons that follow,
we conclude that it does.
1
We agree with the Government that sometimes informa-
tion that has entered the public domain may nonetheless fall
within the scope of the state secrets privilege. But see 938
F. 3d, at 1133 (“[I]n order to be a `state secret,' a fact must
frst be a `secret' ”). The Government here has provided a
reasonable explanation of why Mitchell and Jessen's confr-
mation or denial of the information Zubaydah seeks could
signifcantly harm national security interests, even if that
information has already been made public through unoffcial
sources.
The CIA Director stated in his declaration that the
Agency's counterterrorism efforts rely on “clandestine” rela-
tionships with foreign intelligence services. App. to Pet. for
Cert. 130a–131a. The Director explained that foreign intel-
ligence services “are a critical intelligence source,” whose
help is “vital to our world-wide efforts to collect intelligence
and thwart terrorist attacks.” Ibid.
He further explained that these “sensitive” relationships
with other nations are “based on mutual trust that the classi-
fed existence and nature of the relationship will not be dis-
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closed.” Id., at 135a–136a. To confrm the existence of
such
a relationship would “breach” that trust and have “seri-
ous negative consequences,” including jeopardizing “relation-
ships with other foreign intelligence or security services.”
Id., at 131a–132a. In light of these concerns, the CIA “has
steadfastly refused to confrm or deny the accuracy” of public
speculation about its cooperation with Poland, leaving “an
important element of doubt about the veracity” of that spec-
ulation, providing “an additional layer of confdentiality,” and
at least confrming that the United States will “stand frm in
safeguarding any coordinated clandestine activities,” despite
the passage of time, the existence of media reports, and
changes in public opinion. Id., at 133a–136a. In a word, to
confrm publicly the existence of a CIA site in Country A,
can diminish the extent to which the intelligence services of
Countries A, B, C, D, etc., will prove willing to cooperate
with our own intelligence services in the future.
Justice Gorsuch believes that the Government has failed
to meet its “burden of showing that a `reasonable danger'
of harm to national security would follow from sharing the
information sought.” Post, at 257–258. In his view, the Di-
rector's declaration is insuffcient to demonstrate “that re-
quiring the government to acknowledge [that the CIA did or
did not operate a detention facility in Poland in the early
2000s] would invite a reasonable danger of additional harm
to national security.” Post, at 258–259. We disagree. It
stands to reason that a former CIA insider's confrmation
of confdential cooperation between the CIA and a foreign
intelligence service could damage the CIA's clandestine rela-
tionships with foreign authorities. Confrmation by such an
insider is different in kind from speculation in the press or
even by foreign courts because it leaves virtually no doubt
as to the veracity of the information that has been confrmed.
And there is ample reason to think that the circumstances of
this case—particularly the specifc discovery requests at
issue here—could lead to this kind of confrmation. In any
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event, the CIA's refusal to confrm or deny its cooperation
w
ith foreign intelligence services plays an important role in
and of itself in maintaining the trust upon which those rela-
tionships are based.
Nor, as Justice Gorsuch believes, do we reach this con-
clusion by incorrectly placing the burden on Zubaydah to dis-
prove the Government's assertion of harm. Post, at 259.
To the contrary, we agree with Justice Gorsuch that the
Government bears the burden of showing that the privilege
should apply—we simply disagree with his conclusion that it
failed to meet that burden here. In our view, the Director's
declaration adequately establishes “that there is a reason-
able danger that compulsion of the evidence [at issue] will
expose . . . matters which, in the interest of national security,
should not be divulged.” Reynolds, 345 U. S., at 10. And
we have found nothing in the evidentiary record that casts
doubt on our conclusion that the Government has met its
burden here. Reynolds itself contemplated that a similar
basis for a claim of privilege could prevail without further
examination by the court of the ostensibly privileged evi-
dence. Id., at 9–11.
In contrast, Justice Thomas, referring to Reynolds, be-
lieves that we need not consider the Government's justifca-
tions for invoking the privilege at all because Zubaydah has
not made a “ `strong showing of necessity' ” for the requested
information. Post, at 216–217 (opinion concurring in part
and concurring in judgment). Reynolds, however, taken as
an example, indicates that the Government initially must for-
mally invoke the privilege. 345 U. S., at 8. Then the court
itself must “determine whether the circumstances are appro-
priate for the claim of privilege.” Ibid. And only after sat-
isfying itself that the Government has offered a valid reason
for invoking the privilege would a court turn to the issue of
necessity (a matter that would help the court determine how
deeply to probe the details of, and basis for, the Govern-
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ment's privilege claim). Id., at 10–11. We follow Reynolds'
example
here.
2
Additionally, the Government cites legal authority from
the separate but roughly analogous Freedom of Information
Act (FOIA) context, which supports our conclusion that the
CIA's concerns warrant application of the state secrets privi-
lege. Brief for Petitioner 32–34. The FOIA contains ex-
emptions that permit an agency to withhold Government rec-
ords that a member of the public has requested and which
the agency would otherwise have to disclose. 5 U. S. C.
§ 552. But the exemptions do not apply (and the agency
must make the information available) if the information has
already become public, provided that it has been “ `offcially
acknowledged' ” by the agency from which the information
is sought. Fitzgibbon v. CIA, 911 F. 2d 755, 765 (CADC
1990) (emphasis added). The Court of Appeals held that,
under the circumstances present in Fitzgibbon, if there has
been “ `offcial acknowledgment' ” then the agency must dis-
close the information despite the exemption. Ibid. If the
agency has not offcially acknowledged the information, how-
ever, then it may withhold the information (under an applica-
ble exemption) despite the fact that the information has be-
come public. Ibid.
To be clear, the FOIA doctrine is only an (imperfect) anal-
ogy, and nothing in this opinion should be taken to suggest
that the waiver standards in that area apply directly to the
state secrets privilege. However, the principles underlying
the FOIA rule provide at least some support for the Govern-
ment's position here. Lower courts have explained that the
offcial acknowledgement doctrine recognizes the reality that
offcial confrmation of sensitive information may pose risks
that unoffcial disclosure does not. “It is one thing for a re-
porter or author to speculate or guess that a thing may be
so or even, quoting undisclosed sources, to say that it is so;
it is quite another thing for one in a position to know of it
offcially to say that it is so.” Alfred A. Knopf, Inc. v. Colby,
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509 F. 2d 1362, 1370 (CA4 1975). Offcial confrmation may
dispel
“lingering doubts” or reveal that the information cur-
rently in the public domain is incomplete or itself a cover
story. Military Audit Project v. Casey, 656 F. 2d 724, 744–
745 (CADC 1981).
This logic helps to explain why disclosure by Mitchell and
Jessen could be harmful in ways that disclosure by other
sources would not. Here, the Government has not con-
frmed or otherwise offcially acknowledged the existence of
a CIA detention site in Poland and it has explained why,
under these circumstances, confrmation of that information
could reasonably be expected to signifcantly harm national
security interests. That is suffcient to demonstrate that
“the occasion for the privilege is appropriate.” Reynolds,
345 U. S., at 10. (The Polish government has also never con-
frmed whether it cooperated with the CIA, so we need not
decide in this case what signifcance, if any, that disclosure
would have.)
3
The Court of Appeals also believed that, because Mitchell
and Jessen are “private parties,” their “disclosures [were]
not equivalent to the United States confrming or denying
anything.” 938 F. 3d, at 1133. We do not agree with this
conclusion. Mitchell and Jessen worked directly for the CIA
as contractors. Zubaydah contends (without contradiction)
that Mitchell and Jessen “devised and implemented” the
CIA's enhanced-interrogation program and that they person-
ally interrogated Zubaydah. Brief for Respondents 1–2.
Given Mitchell and Jessen's central role in the relevant
events, we believe that their confrmation (or denial) of the
information Zubaydah seeks would be tantamount to a dis-
closure from the CIA itself. Indeed, the CIA Director's
Declaration describes the harm that would result from
Mitchell and Jessen responding to the subpoenas, not the
risks of a response from the CIA (or any other CIA offcial
or employee).
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4
A
t the same time, Zubaydah's need is not great. At oral
argument Zubaydah suggested that he did not seek confr-
mation of the detention site's Polish location so much as he
sought information about what had happened there. Tr. of
Oral Arg. 44 (“We know where Abu Zubaydah was. We
want to establish how he was treated there”).
5
For these reasons, we conclude that in this case the state
secrets privilege applies to the existence (or nonexistence)
of a CIA facility in Poland. It therefore precludes further
discovery into all three categories of information the Ninth
Circuit concluded to be nonprivileged because, as we have
explained, such discovery will inevitably confrm or deny the
existence of such a facility. See supra, at 205–207.
III
While Justice Kagan and Justice Gorsuch would send
the case back for additional proceedings, we believe that it
must be dismissed. Although application of the state se-
crets privilege does not always require dismissal, we are un-
persuaded that the litigation at issue here, founded upon the
specifc document requests set forth in the Appendix, infra,
at 215–216, can survive the Government's successful privi-
lege claim.
Justice Gorsuch frst suggests that we should remand
for the District Court to conduct “in camera review of any
evidence the government might wish to present to substanti-
ate its privilege claim.” Post, at 259–260. It is true that
sometimes a court must personally review the evidence at
issue in order to assess the Government's assertion of the state
secrets privilege. See Reynolds, 345 U. S., at 10. How-
ever, additional judicial probing is inappropriate here for two
reasons taken together. First, for the reasons explained
above, the CIA Director's affdavit, together with the lack of
contrary evidence, is suffcient to “satisfy [us] . . . that there
is a reasonable danger that compulsion of the [privileged]
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evidence will expose . . . matters which, in the interest of
nati
onal security, should not be divulged.” Ibid. Second,
the necessity of additional judicial probing depends, as we
have explained, on Zubaydah's need for the information he
seeks. We have explained that much of that information
is already publicly available from other sources. Supra,
at 200–201. The public availability of information concern-
ing Zubaydah's treatment diminishes his need for the discov-
ery he seeks from Mitchell and Jessen, and thus for further
judicial probing of the Government's privilege claim. See
Reynolds, 345 U. S., at 11 (“necessity [is] greatly minimized
by an available alternative”). Zubaydah's need for informa-
tion about his treatment may be further diminished by the
Government's representation that (subject to a security re-
view) it will allow Zubaydah “to send a declaration that
could be transmitted to Polish prosecutors.” Letter from
B. Fletcher, Acting Solicitor General, to S. Harris, Clerk of
Court 3 (Oct. 15, 2021). And, as we just said, Zubaydah's
counsel stated at oral argument: “We know where Abu Zu-
baydah was. We want to establish how he was treated
there.” Tr. of Oral Arg. 44.
Alternatively, both Justice Kagan and Justice Gor-
such suggest that even if “the existence [or nonexistence] of
a detention site in Poland really does qualify as a state se-
cret,” we should nonetheless remand so that discovery may
continue on a different topic: Zubaydah's treatment from
“December 2002 through September 2003 and without refer-
ence to geography.” Post, at 260 (Gorsuch, J., dissenting);
see also post, at 235–237 (Kagan, J., concurring in part and
dissenting in part). In their view, “familiar judicial tools,”
such as protective orders and code names, would be adequate
to protect against the possibility of an “inadvertent disclo-
sur[e]” of privileged information. Post, at 261 (opinion of
Gorsuch, J.); see also post, at 236–237 (opinion of Kagan, J.).
Unfortunately, this suggestion ignores the nature of the
specifc discovery requests at issue here. It may well be
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214 UNITED
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sure of classifed information in previous litigation on related
subjec
t matter. See post, at 261 (opinion of Gorsuch, J.)
(describing protective measures used to prevent disclosure
of classifed information in United States v. Khalid Shaikh
M ohamm ad and Sa l im v. M i tch ell, No. 2:15 – cv– 286
(ED Wash.)). But the nature of this case (an exclusively
discovery-related proceeding aimed at producing evidence
for use by Polish criminal investigators) and the specifc dis-
covery requests before us convince us that these techniques
would not be effective here. In particular, as we have al-
ready explained, both the subpoena's language and the Ninth
Circuit's decision are such that any response to Zubaydah's
discovery requests would inevitably tend to confrm or deny
whether the CIA operated a detention site located in Poland.
Supra, at 206–207. All this is true regardless of protective
measures that might be employed by the courts below. Of
course, we need not and do not here decide whether a differ-
ent discovery request fled by Zubaydah might avoid the
problems that preclude further litigation regarding the re-
quests at issue here.
Finally, Justice Gorsuch ignores the nature of this liti-
gation. This case arises from Zubaydah's ex parte applica-
tion for discovery under § 1782. It is a purely evidentiary
proceeding and thus unlike most litigation, which may, after
a successful assertion of the state secrets privilege, “con-
tinue without the government's privileged proof.” Post, at
260. Here, the privilege blocks Zubaydah's discovery re-
quests, which are the proceeding 's sole object. Given that
fact, we can see no reason to remand for further proceedings.
IV
We reverse the judgment of the Ninth Circuit and remand
the case with instructions to dismiss Zubaydah's current ap-
plication for discovery under § 1782.
It is so ordered.
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Appendix to opinion of the Court
APPENDIX
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216 UNITED
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Opinion of Thomas, J.
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Justice Thomas, with whom Justice Alito joins, con-
curring in part and concurring in the judgment.
Under United States v. Reynolds, 345 U. S. 1 (1953), a
court evaluates the Government's assertion of the state-
secrets privilege based on “the showing of necessity . . .
made” by the party requesting discovery. Id., at 11. If the
party makes only “a dubious showing of necessity,” the claim
of privilege “will have to prevail” without judicial scrutiny
into the Government's basis for the claim. Ibid. If the
party makes “a strong showing of necessity,” however, im-
mediate dismissal of the discovery request is not required.
Ibid. A court may then ask whether there is a “reasonable
danger” that “military secrets are at stake.” Id., at 10–11.
In answering that question, the court must afford “the ut-
most deference” to the Executive's national-security assess-
ment. Department of Navy v. Egan, 484 U. S. 518, 530
(1988) (internal quotation marks omitted). “[I]f the court is
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217
Opinion of Thomas, J.
the most compelling necessity cannot overcome the claim of
pr
ivilege.” Reynolds, 345 U. S., at 11.
The Court acknowledges that Abu Zubaydah's need for
discovery from two CIA contractors is “not great,” ante, at
15, but it declines to dismiss Zubaydah's discovery applica-
tion on that basis. Rather, the Court concludes that the
Government “has provided a reasonable explanation” why
Zubaydah's proposed discovery “could signifcantly harm na-
tional security interests.” Ante, at 207. In my view, Zu-
baydah's “dubious” need for the discovery he seeks requires
dismissal of his discovery application, regardless of the
Government's reasons for invoking the state-secrets privi-
lege. I, therefore, join only Part IV of the Court's opinion.
I
Abu Zubaydah is a terrorist. Before his detention, he
was an al Qaeda-associated senior operative engaged in ac-
tive hostilities against the United States. See generally
Factual Return for Abu Zubaydah (ISN 10016), in Husayn
v. Gates, No. 08–cv–1360 (DDC), ECF Doc. 474–1, pp. 24–67
(Factual Return). Between 1994 and 2000, Zubaydah was
the “key facilitator” for the “Khaldan camp,” a terrorist
training center in eastern Afghanistan. Id., at 37, ¶33; see
also Barhoumi v. Obama, 609 F. 3d 416, 425 (CADC 2010);
National Commission on Terrorist Attacks upon the United
States, The 9/11 Commission Report, pp. 59, 175 (2004) (9/11
Report). Among other responsibilities, Zubaydah secured
forged passports and visas for terrorist trainees, provided
safe harbor for the trainees at a “guesthouse,” and managed
the training camp's expenses. Factual Return 37, ¶33; see
also 9/11 Report 169, 178. Numerous Khaldan-trained ter-
rorists committed acts of terrorism against the United
States, including Khalid al-Mihdhar, the al Qaeda hijacker
who crashed American Airlines Flight 77 into the Pentagon
on September 11, 2001. Factual Return 41, ¶41a; see also
9/11 Report 73 (noting evidence that suggested the 1993
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World Trade Center bombing “plot or plots were hatched at
or
near the Khaldan camp”).
After the September 11 attacks, Zubaydah “joined enemy
forces against the United States,” “facilitated the retreat and
escape of enemy forces out of Afghanistan,” and continued
“plotting attacks against the United States.” Factual Re-
turn 34, ¶28. From sites in Afghanistan and Pakistan, Zu-
baydah commanded a terrorist militia closely associated with
al Qaeda and Osama bin Laden. See id., at 48–55, ¶¶49–62;
Ali v. Obama, 736 F. 3d 542, 546–548 (CADC 2013) (Kava-
naugh, J.). Zubaydah had his followers trained in English,
electronics, and explosives. See Factual Return 63– 64,
¶¶67– 68. He planned to wage war agai nst the United
States by planting remotely operated bombs in various pub-
lic locations. See id., at 66, ¶73. In his diary, Zubaydah
refected that it would be “a lot better” to carry out a nuclear
attack if a nuclear weapon ever became “available.” Id., at
67, ¶73 (emphasis deleted). Zubaydah wanted “[a] general
war, non stop and without mercy.” Ibid.
On March 28, 2002, U. S. and allied forces captured Zubay-
dah at his safe house in Faisalabad, Pakistan. Id., at 55,
¶63; Ali, 736 F. 3d, at 543. Zubaydah “used the Faisalabad
house to prepare for attacks on U. S. and Coalition forces
usi ng remote-detonated explosives. ” Id., at 546 – 547.
After his capture, the CIA transferred Zubaydah to several
detention sites abroad before detaining him at Guantánamo
Bay Naval Base, where he remains today. Between March
2002 and September 2006, CIA interrogation of Zubaydah
yielded 766 disseminated intelligence reports. S. Rep.
No. 113–288, p. 46 (2014). “Zubaydah provided information
on al-Qa'ida activities, plans, capabilities, and relationships,
in addition to information on its leadership structure, includ-
ing personalities, decision-making processes, training, and
tactics.” Ibid. (internal quotation marks omitted).
In this case, Zubaydah seeks discovery under 28 U. S. C.
§ 1782 from two former CIA contractors, James Mitchell and
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John Jessen. Zubaydah does not request this discovery for
h
is own use. Rather, Polish prosecutors asked Zubaydah to
fle a discovery application after the United States repeat-
edly declined the prosecutors' requests for information re-
garding CIA operations at an alleged detention site in Po-
land. See ante, at 201–202; Husayn v. Mitchell, 965 F. 3d
775, 782 (CA9 2020) (Bress, J., dissenting from denial of re-
hearing en banc). Zubaydah claims to have been detained
and tortured at that site, and Polish authorities are investi-
gating those allegations. The United States now moves to
quash Zubaydah's § 1782 application by invoking the state-
secrets privilege, citing national-security interests.
II
A
In Reynolds, this Court held that the Government may
invoke the state-secrets privilege whenever “there is a rea-
sonable danger that compulsion of the evidence will expose
military matters which, in the interest of national security,
should not be divulged.” 345 U. S., at 10. Upon the Gov-
ernment's “formal claim of privilege,” “[t]he court itself must
determine whether the circumstances are appropriate for the
claim of privilege, and yet do so without forcing a disclosure
of the very thing the privilege is designed to protect.” Id.,
at 7–8 (footnote omitted).
Reynolds prescribed a two-step framework instructing
courts “how far [they] should probe in satisfying [themselves]
that the occasion for invoking the privilege is appropriate.”
Id., at 11. First, courts must assess the requesting party's
need for the Government's privileged material. If the par-
ty's need is “dubious,” a formal claim of privilege “will have
to prevail” without judicial inquiry into the basis for the Gov-
ernment's claim. Ibid. A party has a dubious need unless
it can show that the proposed discovery is “immediately and
essentially applicable” to the party's case. United States v.
Burr, 25 F. Cas. 30, 37 (No. 14,692d) (CC Va. 1807) (Marshall,
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C. J.). For example, a “dubious showing of necessity” arises
i
f a party has an “available alternative” to privileged mate-
rial that might “giv[e him] the evidence to make out [his]
case without forcing a showdown on the claim of privilege.”
Reynolds, 345 U. S., at 11. Likewise, a party's need is dubi-
ous if it is “possible . . . to adduce the essential facts . . .
without resort to material touching upon military secrets.”
Ibid.
Second, if a party has made a “strong showing of neces-
sity,” immediate dismissal of the discovery request is not re-
quired. Ibid. The court may then ask whether there is a
“reasonable danger” that “military secrets are at stake.”
Id., at 10–11. When answering that question, in camera re-
view is not “automati[c],” id., at 10, but rather “a last resort,”
Larson v. Department of State, 565 F. 3d 857, 870 (CADC
2009) (internal quotation marks omitted). And, in all cases,
the court must afford the “utmost deference” to the Execu-
tive's assessment of national-security threats. Egan, 484
U. S., at 530 (internal quotation marks omitted).
1
Such def-
1
Justice Breyer suggests that case law under the Freedom of Infor-
mation Act (FOIA) might provide a “roughly analogous” framework for
courts to assess the Government's claim of state-secrets privilege. Ante,
at 210 (plurality opinion). Yet, at the same time, Justice Breyer admits
that the analogy is “imperfect,” and stresses that “nothing in [his] opinion
should be taken to suggest” that FOIA law is “directly” relevant. Ibid.
No party has proposed a FOIA approach to state secrets, presumably be-
cause the statute has no apparent connection to the state-secrets privilege.
Like the parties, I do not think that FOIA is relevant in this context.
This Court has held that FOIA's “basic purpose” is to “open agency action
to the light of public scrutiny,” regardless of the “particular purpose for
which the document is being requested.” Department of Justice v. Re-
porters Comm. for Freedom of Press, 489 U. S. 749, 772 (1989) (internal
quotation marks omitted). That “basic purpose” is antithetical to the
state-secrets privilege, which exists to protect “military matters [that]
should not be divulged,” even when a party demonstrates “the most com-
pelling necessity.” Reynolds, 345 U. S., at 10, 11. Thus, FOIA favors
disclosure regardless of a party's need, while the state-secrets privilege
mandates secrecy even if need is at its zenith.
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erence is required because it is the responsibility of the Ex-
ecutive
, “not that of the judiciary, to weigh the variety of
complex and subtle factors in determining whether disclo-
sure of information may lead to an unacceptable risk of com-
promising ” the Nation's safety. CIA v. Sims, 471 U. S. 159,
180 (1985). Ultimately, if the court is “satisfed that military
secrets are at stake,” “even the most compelling necessity
cannot overcome the claim of privilege.” Reynolds, 345
U. S., at 11; see also Trump v. Vance, 591 U. S. –––, ––– (2020)
(Thomas, J., dissenting).
Reynolds itself involved only a “dubious” need for privi-
leged material. The plaintiffs were widows of three civil-
ians who died when a military fight “testing secret elec-
tronic equipment” crashed. 345 U. S., at 3. The plaintiffs
fled suit under the Federal Tort Claims Act, 28 U. S. C.
§ 1346 et seq., and the Government invoked the state-secrets
privilege to withhold the Air Force's accident investigation
report and related materials. See 345 U. S., at 3–4. The
Court sustained the privilege because the plaintiffs “posed
the privilege question for decision with the formal claim of
privilege set against a dubious showing of necessity.” Id.,
at 11. Specifcally, the plaintiffs had adduced “nothing to
suggest that the electronic equipment . . . had any causal
connection with the accident,” making discovery into the
equipment unnecessary. Ibid. The Government also had
“offered to make the surviving crew members available for
examination,” but the plaintiffs declined that invitation.
Ibid. For these reasons, and not because the Court inde-
pendently assessed whether “military secrets [were] at
stake,” ibid., the Court found the plaintiffs' need “dubious”
and ordered the dismissal of their discovery request.
B
In this case, the Court inverts the Reynolds test so that
courts frst ask whether the Government “has offered a valid
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222 UNITED
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requesting party has demonstrated suffcient need for the
discovery
. Ante, at 209. Now, a court “turn[s] to the issue
of necessity” not to determine whether to evaluate the
Government's reasons for invoking the state-secrets privi-
lege, but rather to ascertain “how deeply to probe the details
of, and basis for, the Government's privilege claim.” Ante,
at 210.
Reynolds squarely forecloses the Court's reasons-frst ap-
proach. Regardless of need, a claim of privilege must pre-
vail once the Government has given a “valid reason” to sup-
port it, because “even the most compelling necessity cannot
overcome the claim of privilege if the court is ultimately sat-
isfed that military secrets are at stake.” Reynolds, 345
U. S., at 11. The Court offers no explanation how a court
might discern a “valid reason” to invoke the state-secrets
privilege without also being “satisfed” that state secrets are
in issue. Here, to determine whether the Government has
offered a “valid reason,” the Court even searched “the evi-
dentiary record” to ensure that “nothing . . . casts doubt on
[its] conclusion.” Ante, at 209. Thus, to start by evaluating
the Government's reasons for privilege, as the Court does,
leaves Reynolds' analysis of need with no role to play. That
result is fatly inconsistent with Reynolds, where the Court
did not evaluate the Government's reasons to support its
privilege claim, but instead ordered dismissal of the discov-
ery request in light of the plaintiffs' “dubious showing of
necessity.” 345 U. S., at 11. In upending Reynolds' test,
the Court fails to grapple with or even discuss Reynolds'
analysis.
Unfortunately, by invoking need as Reynolds' second step,
with a cryptic instruction to “probe” the Government's rea-
sons yet more “deeply,” ante, at 210, the Court twice puts the
Nation's security at risk. First, any judicial inquiry more
searching than the Court's analysis here likely will lead to in
camera review whenever the requesting party demonstrates
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adequate need. Because the Court already dissects the CIA
D
irector's declaration, see ante, at 207–208, it is unclear how
else the Government could support its privilege claim other
than by disclosing evidence in camera. But making in cam-
era review turn on the party's need improperly prescribes
“automati[c] . . . disclosure to the judge” in the narrow but
important class of cases for which the moving party demon-
strates adequate need. Reynolds, 345 U. S., at 10. Such an
approach also ignores that “examination of the evidence . . .
by the judge alone” “jeopardize[s] the security which the
privilege is meant to protect.” Ibid. While the Executive
can control its subordinates' access to state secrets and en-
force penalties if such material is mishandled, it has little
control once state secrets fall into the Judiciary's hands.
Disclosure to a judge, therefore, poses a very real national-
security threat. The plurality's cavalier statement that
“sometimes” in camera review is warranted fails even to ac-
knowledge that risk. Ante, at 212.
Second, the Court's inverted Reynolds test undermines
the “utmost deference” owed to the Executive's national-
security judgments. Egan, 484 U. S., at 530 (internal quota-
tion marks omitted). While the Court purports to apply
that standard in this case, see ante, at 205, it then instructs
courts to “probe” more “deeply” the “basis for . . . the Gov-
ernment's privilege claim” when need is established, ante, at
210. This will inevitably result in “judicial second-guessing ”
of core national-security determinations, “defeat[ing] the
unity, secrecy, and dispatch that the Founders believed to be
so important” to the Executive Branch. Hamdi v. Rums-
feld, 542 U. S. 507, 592 (2004) (Thomas, J., dissenting); see
also The Federalist No. 64, pp. 392–393 (C. Rossiter ed. 1961)
(because “perfect secrecy [is] sometimes requisite” in inter-
national affairs, the President must be “able to manage the
business of intelligence in such manner as prudence may
suggest”).
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C
Justice
Kavanaugh joins the Court's opinion but would
reframe its test. Rather than invert Reynolds' two-step ap-
proach, he maintains that the Government's assertion of
privilege should prompt a “threshold judicial inquiry” in
which a court asks whether “the `circumstances indicat[e] a
reasonable possibility' that state secrets are involved.”
Post, at 232 (opinion concurring in part) (quoting Reynolds,
345 U. S., at 11). Justice Kavanaugh fails to describe
what this analysis entails, other than to characterize it as
“not demanding ” and the result as “typically self-evident.”
Post, at 232–233. But his Reynolds step 0 cannot be mean-
ingfully different from the Court's upfront demand for rea-
son giving. He concedes that this is a case of “ `dubious'
need,” post, at 233 (quoting Reynolds, 345 U. S., at 11), so he
cannot think that the Court properly applies Reynolds' sec-
ond step. He also joins the Court's analysis in relevant part,
which indicates that his “threshold judicial inquiry” includes
both the Court's searching evaluation of the CIA Director's
declaration and its review of the record to ensure that nothing
“casts doubt” on the Director's explanation. See ante, at 209
(majority opinion). In short, Justice Kavanaugh's tripar-
tite test must likewise require plenary (though deferential)
review at the “threshold,” with more exacting review (some-
times including in camera review) as the party's need grows.
To be sure, Reynolds acknowledged that the Government
raised the state-secrets privilege “under circumstances indi-
cating a reasonable possibility that military secrets were in-
volved.” 345 U. S., at 10–11. Justice Kavanaugh relies
on that language to create Reynolds step 0. See post, at
232 (opinion concurring in part). But Reynolds did not envi-
sion the threshold reason-giving requirement that Justice
Kavanaugh proposes and the Court now applies. Instead,
in discussing the “circumstances,” Reynolds merely charac-
terized the facts of the case: There was “a reasonable possi-
bility that military secrets were involved” because the case
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involved “a military plane which had gone aloft to test secret
elec
tronic equipment.” 345 U. S., at 10–11. It did not re-
quire a “threshold judicial inquiry” to make that observation.
Nor does it require any meaningful “inquiry” to observe that
this case involves an alleged clandestine detention site.
Again, Reynolds' only “threshold inquiry” was to assess the
plaintiffs' need for the Government's privileged material.
That is why the Court decided that the Government's claim
of privilege “cut off further demand for the documents on
the showing of necessity” without assessing the validity of
the Government's reasons. Id., at 11. The Court and Jus-
tice Kavanaugh's reasons-frst, need-later approach has no
basis in our case law.
D
Finally, Justice Gorsuch would dispense with Reynolds
and instruct judges to evaluate de novo the Government's
invocation of the state-secrets privilege. He does not say
“de novo,” but his analysis makes the point clear. He sum-
marily dismisses the CIA Director's 15-page declaration as
a “conclusory assertion,” post, at 259 (dissenting opinion),
proposes that courts “often should” review state secrets in
camera, post, at 254, and then suggests that courts “inde-
pendently” evaluate that privileged information, post, at 251.
This approach fnds no support in Reynolds, Egan, or related
cases, see Part II–A, supra, as Justice Gorsuch effectively
concedes. He rejects Egan, see, e. g., post, at 253, and he
criticizes Reynolds for accepting the Government's claim of
privilege “at face value” “without even pausing to review”
the privileged information, post, at 251. True, quoting Rey-
nolds, Justice Gorsuch indicates that courts should ask
whether discovery would present a “ `reasonable danger' ” to
national security. Post, at 253 (quoting 345 U. S., at 10).
But the question remains: in whose judgment? His answer
is clear: our “independent judgment.” Post, at 253.
Justice Gorsuch offers three arguments to support
de novo judicial review of a state-secrets claim, none of which
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has merit. First, he asserts that “courts generally must re-
spec
t . . . the ancient rule that the public enjoys a right to
`every man's evidence.' ” Post, at 247 (quoting 4 J. Wigmore,
Evidence in Trials at Common Law § 2192, p. 2965 (1905)).
But whatever “right” there may be to civil discovery gener-
ally,
2
there is no “right” to state secrets specifcally. As
Wigmore explained, when any of “the various privileges” ap-
plies, the obligation to produce evidence is “not insisted
upon.” Id., at 2967. The state-secrets privilege, of course,
is “a privilege which is well established in the law of evi-
dence.” Reynolds, 345 U. S., at 6–7; see also Totten v.
United States, 92 U. S. 105 (1876); Burr, 25 F. Cas., at 37.
Thus, to assert a “right” to discovery proves nothing, be-
cause the formal claim of the state-secrets privilege over-
rides it here.
Second, Justice Gorsuch posits that “[b]ecause Congress
has expressly authorized the Judiciary to entertain this suit”
by enacting § 1782, “it follows that we may not refexively
defer to the Executive's wish to see it dismissed.” Post, at
248, n. 10. But that argument “omits an important caveat
found in the same [provision]” on which Justice Gorsuch
relies. Ibid. Section 1782(a) provides: “A person may not
be compelled to give his testimony or statement or to
produce a document or other thing in violation of any legally
applicable privilege.” Thus, far from inviting de novo re-
view, Congress instructed federal courts to apply all privi-
2
But see, e. g., 4 St. George Tucker, Blackstone's Commentaries 381–382
(1803) (discussing limits on discovery at common law, including the lack of
“complete discovery by the oath of the parties”; “a compulsive power for
the production of books and papers belonging to the parties”; and “powe[r]
to examine witnesses abroad”); E. Sunderland, Scope and Method of Dis-
covery Before Trial, 42 Yale L. J. 863, 866–867 (1933) (discussing limits on
discovery in equity); S. Subrin, Fishing Expeditions Allowed: The Histori-
cal Background of the 1938 Federal Discovery Rules, 39 Boston College
L. Rev. 691, 694 (1998) (“Historically, discovery [was] extremely limited in
both England and the United States”); id., at 695 (at common law, “a party
could neither take the stand nor force the opposing party to do so”).
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leges—including the state-secrets privilege—with full force.
In
voking § 1782 merely presents anew the question in this
case: what does the state-secrets privilege require.
3
Third, Justice Gorsuch invokes Chief Justice Marshall's
two opinions in the Burr prosecution, but both cut decisively
against him. In 1807, the Federal Government prosecuted
Aaron Burr, the former Vice President, for treason and,
later, misdemeanor incitement. Vance, 591 U. S., at –––, –––.
Burr moved for a subpoena duces tecum ordering President
Jefferson to produce a letter from General James Wilkinson,
Burr's principal accuser. Id., at ––– – –––. Chief Justice
Marshall explained that it “d[id] not . . . appear to the court
that the president d[id] object to the production of any
part of [Wilkinson's] letter.” United States v. Burr, 25
F. Cas. 187, 192 (No. 14,694) (CC Va. 1807); see also Burr, 25
F. Cas., at 31, 37. But “[h]ad the president” done so and
“subjected [the letter] to certain restrictions, and stated that
in his judgment the public interest required certain parts of
it to be kept secret,” Chief Justice Marshall assured that
“all proper respect would have been paid” to the President's
invocation of privilege. Burr, 25 F. Cas., at 192.
Justice Gorsuch nonetheless reasons that it would not
have been enough, to defeat the subpoena, for President Jef-
ferson to have objected on state-secrets grounds. Chief Jus-
tice Marshall supposedly would have required the President
to “ `state the particular reasons' ” for withholding the Wil-
kinson letter, and the court then could have “decide[d] for
itself whether to sustain a claim of privilege.” Post, at 249
(quoting Burr, 25 F. Cas., at 192). Justice Gorsuch's argu-
ment by selective quotation is incorrect. Chief Justice Mar-
shall explained that “on objections being made by the presi-
dent to the production of a paper, the court would not
3
Justice Gorsuch eventually recognizes that neither the supposed
“duty to produce every man's evidence” nor § 1782 actually supports his
position. Post, at 253, n. 12. He concedes that both sources simply pres-
ent “the question when the state secrets privilege applies.” Ibid.
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proceed further in the case without such an affdavit as would
clear
ly sh[o]w the paper to be essential to the justice of the
case.” Id., at 192 (emphasis added); see also Burr, 25
F. Cas., at 37 (“If it does contain any matter which . . . it is
not the wish of the executive to disclose, such matter, if it
be not immediately and essentially applicable to the point,
will, of course, be suppressed”). That analysis tracks Rey-
nolds' frst step: The Government invokes the state-secrets
privilege, and the privilege will prevail unless the requesting
party makes the requisite showing of need. Thus, Justice
Gorsuch is simply incorrect that “Chief Justice Marshall no-
where suggested that the state secrets privilege should
apply in this country without . . . a statement” of reasons to
support the privilege. Post, at 249–250, n. 11.
Justice Gorsuch further errs in asserting that a review-
ing court must demand a statement of reasons and then “de-
cide for itself ” whether those reasons are adequate. Post,
at 249. Quite the opposite: Chief Justice Marshall explained
that “[t]he president may,” not must, “state the particular
reasons” for his claim of privilege, and that the court will
“unquestionably allow . . . full force to those reasons,” 25
F. Cas., at 192 (emphasis added), not “decide for itself ”
whether they pass muster, post, at 249. That analysis fol-
lows Reynolds' second step: If there is adequate need, the
Government may explain the basis for privilege and the
court affords “utmost deference” or “full force” to those rea-
sons. The reality of Burr, then, is the opposite of what Jus-
tice Gorsuch proposes.
Ultimately, Justice Gorsuch's animating concern is that
judicial deference to the Executive's national-security judg-
ments risks collapsing “the many points of difference” be-
tween our Chief Executive and the 18th-century British
monarch. Burr, 25 F. Cas., at 34. Not so. This Court's
standard of utmost deference bears little relation to “the
privilege the English crown enjoyed.” Post, at 249. In con-
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Chief Justice Marshall explained that only a king could not
be
made “to appear under the process of the court,” and
therefore he alone could object even to the issuance of a sub-
poena. Burr, 25 F. Cas., at 34. The President, meanwhile,
must move to quash a subpoena rather than object to “its
being issued,” and then he may invoke “the law of evidence”
as grounds “for not obeying the process of the court.” Ibid.
That is precisely how the Executive Branch proceeded here.
After the District Court frst granted Zubaydah's discovery
application, the Government moved to quash it in light of the
state-secrets privilege. See ante, at 202–203. To eviscerate
that privilege, as Justice Gorsuch proposes, would not pro-
tect the Nation from monarchy. Rather, it would contra-
vene the “constitutional directive” that the Executive has
“primary responsibility—along with the necessary power—
to protect the national security.” Zivotofsky v. Kerry, 576
U. S. 1, 34 (2015) (Thomas, J., concurring in judgment in part
and dissenting in part) (internal quotation marks omitted).
III
While the Court recognizes that Zubaydah's need for dis-
covery from Mitchell and Jessen is “not great,” ante, at 212;
see also ante, at 213 (plurality opinion), it refuses to dismiss
Zubaydah's discovery application in light of his “dubious
showing of necessity,” Reynolds, 345 U. S., at 11. Instead,
as explained above, the Court begins at Reynolds' second
step and concludes that the Government “has provided a rea-
sonable explanation” why Zubaydah's proposed discovery
“cou ld sig ni ficantly har m nati ona l secur ity i nterests. ”
Ante, at 207.
4
I agree that the Government has offered, at
4
Elsewhere, Justice Breyer notes that the “Polish government has
also never confrmed whether it cooperated with the CIA,” and he there-
fore declines to decide “what signifcance, if any, that disclosure would
have.” Ante, at 211 (plurality opinion). Any such disclosure plainly would
have no signifcance. The state-secrets privilege “belongs to the Govern-
ment”—that is, our Government—alone. United States v. Reynolds, 345
U. S. 1, 7 (1953).
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the very least, a “reasonable explanation” to support its
clai
m of state secrets, but I would dismiss Zubaydah's discov-
ery application at Reynolds' frst step.
5
For at least three
reasons, Zubaydah has failed to prove any nontrivial need
for his requested discovery.
First, Zubaydah will not use the requested discovery “in
a case” that can offer him any meaningful relief. Reynolds,
345 U. S., at 9. While even the plaintiffs in Reynolds sought
to exercise a federal right that potentially entitled them to
damages, Zubaydah, by contrast, does not assert any federal
right to relief. He does not allege, for example, that the
proposed discovery would support his release from federal
custody. Nor could he, as “the sought discovery will be
shipped overseas for the beneft of another country's judicial
system, and at that point, totally out of control of a domestic
court.” 965 F. 3d, at 792 (opinion of Bress, J.) (internal quo-
tation marks omitted). Instead, Zubaydah requests discov-
ery on behalf of foreign authorities to help them prosecute
foreign nationals who allegedly committed crimes in a for-
eign country. At least for purposes of the state-secrets
privilege, Zubaydah has no cognizable “need” to serve as a
conduit for foreign discovery. This Court has never held
that an individual's desire to litigate a foreign case, let alone
his desire merely to assist in the litigation of someone else's
foreign case, establishes any need under Reynolds, dubious
or otherwise.
Second, Zubaydah has failed to pursue “an available alter-
native” that “might have given [him] the evidence to make
out [his] case without forcing a showdown on the claim of
privilege.” Reynolds, 345 U. S., at 11. Before this Court,
5
I agree that dismissal is the appropriate disposition because “the privi-
lege blocks Zubaydah's discovery requests, which are the proceeding 's sole
object.” Ante, at 214 (plurality opinion). But even in ordinary litigation,
dismissal of the action is required whenever the case cannot be fairly liti-
gated without the disclosure of state secrets. See Totten v. United States,
92 U. S. 105, 107 (1876).
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Zubaydah recognizes that his testimony as an alleged “survi-
vor
” of CIA interrogation could substitute for discovery from
Mitchell and Jessen. Brief for Respondents 40. After all,
what the Polish authorities supposedly “need to know is
what happened inside Abu Zubaydah's cell between Decem-
ber 2002 and September 2003.” Tr. of Oral Arg. 41. While
Zubaydah complains that the Government holds him “incom-
municado,” he also admits that his attorneys may communi-
cate on his behalf with the Government's “pre-clearance.”
Brief for Respondents 40. At oral argument, the Govern-
ment confrmed that Zubaydah has never asked to offer testi-
mony under this preclearance procedure, see Tr. of Oral Arg.
73, and the Government has since confrmed that the pre-
clearance procedure remains available, see Letter Brief for
United States 3. Faced with that confrmation, Zubaydah
now concedes that “it is at least theoretically possible” that
the preclearance process “will lead to a declaration that can
assist the Polish prosecutor.” Letter Brief for Respondents
2. He even asks that we hold his case in abeyance until he
can prepare a declaration. See ibid. But that request
comes too late. Zubaydah's “failure to pursue” an “available
alternative” before demanding state secrets betrays “a
dubious showing of necessity” that cannot overcome the Gov-
ernment's “formal claim of privilege.” Reynolds, 345 U. S.,
at 11.
Third, on Zubaydah's own telling, it is “possible . . . to
adduce the essential facts . . . without resort to material
touching upon military secrets.” Ibid. At oral argument,
Zubaydah's counsel clarifed that Zubaydah does not need
evidence about Poland specifcally and seeks discovery only
regarding the conditions of his confnement while in CIA cus-
tody. See Tr. of Oral Arg. 41. Of course, that discovery
would still tend to confrm or deny the existence of a deten-
tion site in Poland. See ante, at 214 (plurality opinion).
But, regardless, discovery is not warranted because Zubay-
dah effectively disclaims any need for such evidence. In his
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Kavanaugh, J., concurring in part
brief, Zubaydah claims already to have “abundant evidence”
of
his “detention and torture on Polish soil.” Brief for Re-
spondents 11. Similarly, at argument, Zubaydah's counsel
represented that Polish authorities have “interviewed 62
people” and “amassed 43 volumes of documents.” Tr. of
Oral Arg. 44. His counsel further explained: “We're simply
trying to supplement information” the Polish prosecutor “al-
ready has.” Id., at 66. In light of these admissions, it is
clear that Zubaydah has already “adduce[d] the essential
facts” that he believes are necessary to support the Polish
prosecution. Reynolds, 345 U. S., at 11. His desire “simply
. . . to supplement” a foreign investigation, Tr. of Oral Arg.
66, cannot establish the “immediat[e] and essentia[l]” need
required to overcome the Government's formal invocation of
the state-secrets privilege, Burr, 25 F. Cas., at 37.
***
I would hold that Abu Zubaydah has demonstrated only
“a dubious showing of necessity” for the discovery he seeks
in this case. Reynolds, 345 U. S., at 11. For that reason
alone, dismissal of Zubaydah's discovery application is re-
quired. I, therefore, joi n only Par t IV of the Cour t's
opinion.
Justice Kavanaugh, with whom Justice Barrett joins,
concurring in part.
I join all but Part II–B–2 of the Court's opinion. I add
this brief concurrence simply to be clear about my under-
standing of how the “formula of compromise” articulated in
Reynolds works in practice. United States v. Reynolds, 345
U. S. 1, 9 (1953).
For the state secrets privilege to apply, the relevant gov-
ernment agency head must frst assert the privilege. The
court must then determine that the “circumstances indicat[e]
a reasonable possibility” that state secrets are involved.
Id., at 11. That threshold judicial inquiry is not demanding
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Kavanaugh, J., concurring in part
because, as our precedent and this case illustrate, those cir-
cumst
ances are typically self-evident when the Executive
Branch asserts the state secrets privilege. See, e. g., id., at
10; Totten v. United States, 92 U. S. 105, 106–107 (1876).
At that point, the court must accept the Executive
Branch's assertion of privilege without further inquiry if the
requester has shown only a “dubious” need for the requested
information. Reynolds, 345 U. S., at 11. In many state se-
crets disputes, the case ends there—again, this case proves
the point. See Part III, ante. If the requester has demon-
strated a “strong ” need for the information, the court may
under certain circumstances review the requested docu-
ments in camera to confrm that the information falls within
the privilege. Reynolds, 345 U. S., at 10−11. To be clear,
however, even if the requester has a strong need, a court
should nonetheless not demand to examine the evidence—
even “alone, in chambers”—if the Government can “satisfy
the court, from all the circumstances of the case, that there
is a reasonable danger that compulsion of the evidence will
expose military matters which, in the interest of national
security, should not be divulged.” Id., at 10; see also id., at
11, n. 26 (noting that in Totten, “[t]he action was dismissed
on the pleadings” because “it was so obvious” that “the very
subject matter of the action, a contract to perform espionage,
was a matter of state secret”).
In all events, once the court determines that the requested
information falls within the state secrets privilege, “even the
most compelling necessity” cannot overcome the privilege.
Reynolds, 345 U. S., at 11; see also Totten, 92 U. S. 105. The
privilege is absolute, not qualifed.
In state secrets cases, a court's review from start to fnish
must be deferential to the Executive Branch. As this Court
has long explained, the courts “have traditionally shown the
utmost deference to Presidential responsibilities” in cases in-
volving “military or diplomatic secrets,” United States v.
Nixon, 418 U. S. 683, 710 (1974), and “have been reluctant to

234 UNITED
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Opinion of Kagan, J.
intrude upon the authority of the Executive in military and
nati
onal security affairs,” Department of Navy v. Egan, 484
U. S. 518, 530 (1988).
With that understanding of Reynolds, I join all but Part
II–B–2 of the Court's opinion.
Justice Kagan, concurring in part and dissenting in part.
Both sides have substantial interests in this case—the
Government in safeguarding its relationships with foreign
intelligence partners; Abu Zubaydah in obtaining informa-
tion needed to right past wrongs. Sometimes, interests of
that kind are wholly irreconcilable, and the state secrets
privilege may then put an end to the suit. But that is not
so here. The Government's national-security concerns all
relate to confrming the location of detention sites. Zubay-
dah requests evidence of a broader scope, concerning not just
where he was detained, but also what happened there. The
District Court, using established methods, can segregate the
two kinds of evidence—protecting classifed information
about location while giving Zubaydah access to unclassifed in-
formation about detention conditions and interrogation meth-
ods. I would remand the case to allow that process to go for-
ward. So although I join the Court in much of its analysis,
I respectfully dissent from its decision to dismiss this suit.
Start with where I join the Court: I agree the Government
has met its burden of showing that testimony by former CIA
contractors confrming the location of Zubaydah's detention
would pose a “reasonable danger” of harm to national secu-
rity. United States v. Reynolds, 345 U. S. 1, 10 (1953); see
ante, at 207–212. That is true for two reasons. First, testi-
mony of that kind would remove whatever “element of
doubt” exists about the accuracy of public reporting on the
detention site's location, potentially undermining other CIA
activities in that country. App. to Pet. for Cert. 135a (Decl.
of Michael Pompeo, Director, CIA). Second (and possibly
more important here), offcial confrmation would confict
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with commitments the Government has made to foreign in-
tel
ligence services to never disclose clandestine relation-
ships—even as “time passes” and “new political parties or
offcials come to power” or “media leaks occur.” Id., at 136a.
Standing by those commitments, the Government credibly
states, is “critical” to preserving current intelligence part-
nerships and establishing new ones. Id., at 132a; see id.,
at 136a; ante, at 207–210. Those concerns explain why the
Government has refused, across three Presidential adminis-
trations, to confrm or deny reports about the foreign coun-
tries involved in the CIA's “former detention and interroga-
tion program.” App. to Pet. for Cert. 133a; see Tr. of Oral
Arg. 25. The Court is right to respect that decision, and thus
to deny Zubaydah's request for the location of his detention.
But that does not mean, as the Court insists, that we
should dismiss Zubaydah's suit. From the beginning of this
litigation, Zubaydah has distinguished between the “where”
and the “what”—the location of the detention site at issue
and the treatment he received there. See, e. g., App. to Pet.
for Cert. 42a (District Court Order). And in this Court, his
attorney made clear that Zubaydah's primary interest is in
obtaining information on the latter subject. He wants the
CIA contractors to testify about “what happened inside [his]
cell” during a particular 10-month period, irrespective of
where that cell may have been. Tr. of Oral Arg. 41; see ibid.
(“I'm not planning to ask did it happen in Poland. . . . I want
to ask simple questions like, how was Abu Zubaydah fed?
What was his medical condition? What was his cell like?
And, yes, was he tortured?”). For its part, the Government
concedes that information about Zubaydah's treatment is no
longer classifed: It is, on any understanding, not a state se-
cret. See Tr. of Oral Arg. 6 (explaining that the Govern-
ment in 2014 “decided to declassify” information about “the
treatment of detainees” like Zubaydah “to facilitate public
scrutiny of the United States' actions”). That creates the
possibility of segregating the classifed (location) information

236 UNITED
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from the unclassifed (treatment) information and allowing
discovery
into the latter.
That kind of segregation has happened before, showing
what could be done in this case. In 2014, the Senate Select
Committee on Intelligence released a nearly 700-page Re-
port, describing the CIA's torture of various detainees—all
while using code words like “Detention Site Green” and “De-
tention Site Blue” to designate particular facilities. See S.
Rep. No. 113–288 (2014) (Senate Report). More recently,
the CIA permitted its former contractors to testify, in civil
litigation and Military Commission hearings, about their use
of “enhanced interrogation techniques” on detainees—again
without disclosing any locations. See, e. g., Stipulation Re-
garding Discovery in Salim v. Mitchell, No. 2:15–cv–286 (ED
Wash.), ECF Doc. 47, pp. 5, 7–8. Both the Senate Report
and the contractors' testimony discuss Zubaydah, explaining
how he was tortured at the frst facility he was brought to
(whose location has also been identifed in public reporting).
See, e. g., Senate Report, at 17–48, 231, n. 1316 (describing,
among other interrogation methods, more than 80 water-
boardings); see also post, at 240–241 (Gorsuch, J., dissent-
ing). But neither source details what happened to Zubay-
dah at the site here in question, the second facility at which
he was detained. What Zubaydah now mainly wants is to
fll that gap. He is requesting the same information about
the second facility as he already has about the frst: the con-
tractors' testimony about the treatment he received there,
scrubbed of any reference to where it occurred. So the pro-
cedures that worked before—to protect the classifed while
disclosing the unclassifed—can work again. And this case
can go forward on that basis.
The Court offers no satisfactory explanation for rejecting
that approach. It says that segregation cannot succeed be-
cause of “the specifc language of Zubaydah's discovery re-
quests”—twelve of which “contain the word `Poland' or `Pol-
ish.' ” Ante, at 206; see ante, at 213–214 (plurality opinion).
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Gorsuch, J., dissenting
That is fair enough, so far as it goes: Responses to the re-
quests
as currently written would, as the Court says, “either
confrm or deny” that Poland hosted a CIA-operated deten-
tion site. Ante, at 206. But a problem of phrasing can be
solved by rephrasing. Zubaydah has long made clear—not
just in this Court but also below—that he would modify his
requests if that would make a difference. See, e. g., Tr. of
Oral Arg. 41–44, 49–50; App. to Pet. for Cert. 42a. All that
now needs to happen is for this Court to say that it would.
Then Zubaydah would excise any country name from his dis-
covery requests; and the contractors would answer those re-
quests as they previously have done—by describing his
treatment at a detention site, without divulging where that
site was. Even the Court admits that possibility, though in
a backhanded way. The Court says it “do[es] not here decide
whether” Zubaydah could obtain location-cleansed testimony
by fling a new suit containing narrowed discovery requests.
Ante, at 214. But the question of segregation can be decided
now, and in this suit, rather than by sending Zubaydah back to
square one. See also post, at 265–266 (Gorsuch, J., dissent-
ing). I would allow Zubaydah to amend his requests to re-
move all Poland-specifc references, so that he can obtain testi-
mony about his detention—in whatever country it took place.
In short, the holding that national-security risks attach to
confrming the location of Zubaydah's detention—with which
I agree—should not end this case. A court can segregate
that classifed information from unclassifed material about
the nature of Zubaydah's detention. I would remand the
case for that to occur, thus protecting not only the United
States's security interests but also Zubaydah's interest in
forcing disclosure of government abuse.
Justice Gorsuch, w ith whom Justice Sotomayor
joins, dissenting.
There comes a point where we should not be ignorant as
judges of what we know to be true as citizens. See Watts

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238 UNITED
STATES v. ZUBAYDAH
Gorsuch, J., dissenting
v. Indiana, 338 U. S. 49, 52 (1949). This case takes us well
past
that point. Zubaydah seeks information about his tor-
ture at the hands of the CIA. The events in question took
place two decades ago. They have long been declassifed.
Offcial reports have been published, books written, and mov-
ies made about them. Still, the government seeks to have
this suit dismissed on the ground it implicates a state se-
cret—and today the Court acquiesces in that request. End-
ing this suit may shield the government from some further
modest measure of embarrassment. But respectfully, we
should not pretend it will safeguard any secret.
I
A
Start with what the government itself has said about Zu-
baydah. In 2014, a Select Committee of the United States
Senate published a 683-page report about the CIA's deten-
tion and interrogation practices. The report did not focus
on Zubaydah alone, but it included certain details about his
treatment, including the following. After his capture in Pa-
kistan in March 2002, the government transported him to a
“black site” known as Detention Site Green. See S. Rep.
No. 113–288, pp. 21–23 (2014) (Senate Report).
1
At that
time, CIA offcials thought Zubaydah might have been the
“third or fourth man” in al Qaeda and withholding informa-
tion about the September 11 attacks and potential future as-
saults. Id., at 410–411 (internal quotation marks omitted).
In an effort to extract that information, the CIA hired two
contractors, James Mitchell and John Jessen, and authorized
them to employ what it called “enhanced interrogation tech-
niques.” Brief for United States 3. Mitchell and Jessen
1
Although the government has not confrmed it, published reports have
placed Detention Site Green in Thailand. See, e. g., S. Bengali & C. Meg-
erian, The CIA Closed Its Original `Black Site' Years Ago, L. A. Times,
Apr. 22, 2018, https://www.latimes.com/world /asia / la-fg-thailand-cia-
haspel-2018-htmlstory.html.

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239
Gorsuch, J., dissenting
worked “on a near 24-hour-per-day basis” starting August
4,
2002. Senate Report 40; see also id., at 35, 42.
2
They
waterboarded Zubaydah at least 80 times, simulated live
burials in coffns for hundreds of hours, and performed rectal
exams designed to establish “total control over the de-
tainee.” Id., at 42–43, 82, 231, n. 1316, 488, 495 (internal
quotation marks omitted). Six days into his ordeal, Zubay-
dah was sobbing, twitching, and hyperventilating. Id., at
41, 43, 111–112. During one waterboarding session, Zubay-
dah became “completely unresponsive, with bubbles rising
through his open, full mouth.” Id., at 43–44 (internal quota-
tion marks omitted). He became so compliant that he would
prepare for waterboarding at the snap of a fnger. Id., at 43.
By this point, Mitchell and Jessen concluded that it was
“ `highly unlikely' that Zubaydah possessed the information
they were seeking,” and they sought to end the interroga-
tions. Id., at 42. It seems their assessment may have been
correct. Although Zubaydah's relationship with al Qaeda
remains the subject of debate today, the authors of the Sen-
ate Report found that the CIA's records “do not support” the
suggestion that he was involved in the September 11 attacks.
Id., at 410. At the time, however, CIA headquarters was
not yet persuaded by Mitchell's and Jessen's report. It in-
structed the pair to continue their work. Id., at 43. Fol-
lowing these directions, Mitchell and Jessen carried on for
two more weeks until their superiors fnally concluded that
Zubaydah “did not possess any new terrorist threat informa-
tion.” Id., at 40, 45.
In December 2002, the government moved Zubaydah to
another black site, this one known as Detention Site Blue.
Id., at 67. After a stay there and, it seems, years of further
transfers among other black sites, Zubaydah was transferred
2
In the Senate Report, Mitchell and Jessen are code-named Swigert and
Dunbar. See, e. g., Senate Report 21. Mitchell and Jessen later admitted
their roles in the CIA's enhanced interrogation program. See Husayn v.
Mitchell, 938 F. 3d 1123, 1127, n. 4 (CA9 2019).
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Gorsuch, J., dissenting
to the government's detention center in Guantánamo Bay in
2006.
Brief for United States 2. More than 15 years later,
he remains there still. Ibid.
B
The Senate Report is only the start of what we know. As
far back as 2007, the Council of Europe issued a lengthy re-
port fnding that the CIA held Zubaydah at a black site in
Poland after his capture.
3
In 2012, Aleksander Kwasniew-
ski, the President of Poland from 1995 to 2005, told reporters
that the CIA site was established “with [his] knowledge.”
4
In 2014, the European Court of Human Rights found “beyond
reasonable doubt” that Zubaydah was detained in Poland
from December 2002 until September 2003.
5
In support of
its conclusion, the ECHR cited evidence spanning over 100
pages, including declassifed fight records, Polish govern-
mental records, and eyewitness testimony. Many other
public sources have likewise documented that Zubaydah was
transported from Detention Site Green to Detention Site
Blue in Poland in December 2002—and that he remained
there until September 2003.
6
We know even more from Mitchell and Jessen themselves.
The pair have spoken and written extensively—without gov-
ernmental objection—about their activities. In 2016, the
CIA permitted Mitchell to publish a book. Enhanced Inter-
rogation is available on Amazon from $13.99, where it is
touted as “lift[ing] the curtain” on the CIA's interrogation
3
See D. Marty, Secret Detentions and Illegal Transfers of Detainees
Involving Council of Europe Member States: Second Report, Council of
Europe Parliamentary Assembly Committee on Legal Affairs and Human
Rights ¶¶ 70, 127 (2007).
4
Husayn (Abu Zubaydah) v. Poland, no. 7511/13, ¶ 234, ECHR 2014
(internal quotation marks omitted).
5
See id., ¶¶ 404–529.
6
See, e. g., Brief for Bureau of Investigative Journalism et al. as Amici
Curiae 11–43 (citing examples).
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241
Gorsuch, J., dissenting
program, including “its methods, and its downfall.”
7
In
2017,
as part of a lawsuit brought by other former CIA de-
tainees, the government allowed Mitchell and Jessen to tes-
tify how they conceived the idea of waterboarding detainees,
how they asked the CIA to discontinue the use of enhanced
interrogation techniques with Zubaydah, and how headquar-
ters refused. See Stipulation Regarding Discovery in
Salim v. Mitchell, No. 2:15–cv–286 (ED Wash. 2015), ECF
Doc. 47; Brief for Respondents 7–8. In 2020, the pair testi-
fed with governmental permission once more, this time in
military commission hearings at Guantánamo Bay. Over
eight days, covering 2,000 pages of testimony, Mitchell ex-
plained how Zubaydah was waterboarded and kept awake
for 126 consecutive hours, along with other details about the
CIA's techniques.
8
Jessen provided similar testimony.
9
In
2021, Mitchell even appeared in an HBO documentary about
his activities and treatment of Zubaydah. See The Forever
Prisoner (2021).
C
Still, Zubaydah's story remains incomplete. While we
know that the CIA held Zubaydah at Detention Site Blue
from December 2002 until September 2003, and while we
know that the site was in Poland, what happened to him
there remains unclear. The Senate Report explains that he
was tortured immediately before that period, during his time
at Detention Site Green. Senate Report 208, n. 1207. The
Senate Report also recounts how Mitchell and Jessen tor-
tured other detainees at Detention Site Blue, including de-
tails about how they waterboarded one detainee 183 times
over two weeks. Id., at 65–72, 77–93, 101, 103, 268. But,
7
See J. Mitchell & B. Harlow, Enhanced Interrogation: Inside the Minds
and Motives of the Islamic Terrorists Trying To Destroy America (online
source archived at www.supremecourt.gov).
8
See Tr. in United States v. Khalid Shaikh Mohammad, pp. 30348–
30349 (Jan. 21, 2020); id., at 30441–30443, 30469 (Jan. 22, 2020 (morning)).
9
See, e. g., id., at 32450–32467 (Jan. 31, 2020).
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Zubaydah's lawyers tell us, the details of Zubaydah's treat-
ment
during this singular period are not yet publicly
documented.
Today, Polish prosecutors are seeking to unravel that part
of the story and determine whether criminal charges are ap-
propriate in that country. Pursuant to 28 U. S. C. § 1782,
Zubaydah's attorneys fled this domestic lawsuit to obtain
discovery from Mitchell and Jessen to assist the Polish
investigation. Section 1782 allows suits of just this kind:
It provides that federal courts may order persons in this
country to give testimony or produce documents “for use in
a proceeding in a foreign or international tribunal, including
criminal investigations conducted before formal accusation.”
Early in the litigation, Zubaydah's lawyers issued subpoe-
nas to Mitchell and Jessen seeking their depositions and the
production of documents. See Appendix, ante, at 215–216.
Essentially, the requests fell into three main categories.
Zubaydah's lawyers sought: (1) information to confrm that
Detention Site Blue was located in Poland; (2) details about
Zubaydah's interrogation, his treatment, and his conditions
of confnement; and (3) information about the involvement of
Polish offcials.
The government fled a motion seeking to have the peti-
tion for discovery dismissed in its entirety. In support, the
government supplied a declaration from then-CIA Director
Mike Pompeo. The declaration conceded that “the enhanced
interrogation techniques employed with respect to specifc
detainees in the program, and their conditions of confne-
ment, are no longer classifed.” App. to Pet. for Cert. 143a;
id., at 153a. At the same time, the declaration asserted that
the location of Detention Site Blue remained a state secret.
And the declaration averred that soliciting information about
the involvement of Polish nationals could complicate national
security. Ibid.
In response, Zubaydah's lawyers sought an accommoda-
tion. While they continued to pursue all of their requested
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243
Gorsuch, J., dissenting
discovery, they also acknowledged the District Court's power
to
modify or limit their discovery requests. Id., at 42a.
And they stressed that “[v]aluable discovery may proceed
without requiring [Mitchell and Jessen] to confrm either the
location of any particular site, or the cooperation of any par-
ticular government.” Ibid. (internal quotation marks omit-
ted). Zubaydah's lawyers noted, too, that the government
had previously allowed Mitchell and Jessen to testify about
their activities at other detention sites using code names, and
they offered to follow the same protocol here. Ibid.
In the end, however, the District Court granted the gov-
ernment's motion to dismiss. In doing so, the court rejected
the government's suggestion that its detention site in Poland
remained a state secret. The court concluded the state se-
crets privilege did not apply because of how much attention
the site had received over the years and the government's
failure to explain how acknowledging the site would cause
further harm. Id., at 52a–53a, 59a. Still, the court ex-
pressed concern that if Mitchell and Jessen exposed the
names of Polish offcials and their roles at the site, it could
complicate national security in light of the government's dec-
laration. Id., at 59a.
On appeal, the Ninth Circuit affrmed in part and reversed
in part. With respect to the third category of information
Zubaydah sought, concerning the involvement of Polish na-
tionals, the Court of Appeals agreed with the District Court
and the government. Discovery into “the identities and
roles of foreign individuals involved with the detention facil-
ity, operational details about the facility, and any contracts
made with Polish government offcials or private persons re-
siding in Poland might implicate the CIA's intelligence gath-
ering efforts.” Husayn v. Mitchell, 938 F. 3d 1123, 1134
(CA9 2019).
At the same time, the Ninth Circuit held that the District
Court erred by refusing discovery into the frst and second
categories of information Zubaydah sought. With respect

244 UNITED
STATES v. ZUBAYDAH
Gorsuch, J., dissenting
to the frst, the Court of Appeals pointed to the District
Cour
t's fnding that the CIA's detention facility in Poland
was widely known and did not qualify as a state secret.
Ibid. Given that fnding, the Court of Appeals concluded,
Zubaydah was entitled to discovery about the site's location.
Ibid. With respect to the second category, the Court of Ap-
peals held that “information about the use of interrogation
techniques,” “conditions of confnement,” and the “details of
Abu Zubaydah's treatment” could be provided without risk
to any state secret. Ibid. The court stressed that Mitchell
and Jessen had already provided similar information about
Zubaydah's treatment at other locations in past cases using
code names; it saw no reason why the same course could not
be followed here. Id., at 1137. The Court of Appeals
faulted the District Court for failing to disaggregate or limit
the scope of Zubaydah's requests before dismissing them all.
Id., at 1136–1137.
D
Dissatisfed with its partial victory before the Ninth Cir-
cuit, the government seeks further relief in this Court. But
as it comes to us, the parties' dispute is limited. Zubaydah
does not appeal the Ninth Circuit's decision. So while the
majority (repeatedly) emphasizes the breadth of his initial
discovery requests, ante, at 202, 206, that is beside the point.
No one argues that Zubaydah may pursue the third category
of information he initially sought—including the identities
and roles of foreign individuals involved with the detention
facility.
Even when it comes to the two remaining categories of
information at issue—the location of the government's deten-
tion site and the CIA's treatment of Zubaydah there—the
parties' dispute has narrowed substantially. The District
Court found that the site's location did not implicate a state
secret, and the Court of Appeals agreed. The government
asserts this decision was mistaken, while Zubaydah's law-
yers defend it. But, as they have throughout the litigation,
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245
Gorsuch, J., dissenting
Zubaydah's lawyers also offer an alternative. Before the
D
istrict Court, they stressed that “[v]aluable discovery”
could proceed into Zubaydah's interrogations, treatment, and
conditions of confnement without requiring Mitchell and Jes-
sen to confrm “the location of any particular site, or the
cooperation” of foreign nationals. App. to Pet. for Cert. 42a
(internal quotation marks omitted). Before this Court, they
stress the same point. See Tr. of Oral Arg. 41.
As it arrives before us, then, the central question in this
case concerns the request for information about “what hap-
pened inside Abu Zubaydah's cell between December 2002
and September 2003.” Ibid. It is this information—about
Zubaydah's interrogation, treatment, and conditions of con-
fnement at the hands of the CIA—that Zubaydah's lawyers
say they need most. Nor does anyone suggest this request
implicates a state secret. The government does not (and
cannot) claim that its custody of Zubaydah at a black site
remains a state secret: That much was declassifed and docu-
mented in the Senate Report years ago. See, e. g., Senate
Report 67. The government has conceded, too, that the in-
terrogation techniques Mitchell and Jessen employed and Zu-
baydah's conditions of confnement and treatment within his
cell during that period are “no longer classifed.” App. to
Pet. for Cert. 143a; id., at 153a. At a minimum, Zubaydah's
lawyers argue, all this means he should be allowed discovery
from Mitchell and Jessen about his interrogations, treatment,
and conditions of confnement from December 2002 until Sep-
tember 2003, with safeguards to protect against the disclo-
sure of the site's location and the involvement of foreign
nationals.
This request is not a novel one. As Zubaydah's attorneys
observe, the Senate Report discussed the treatment of de-
tainees at various sites during specifc time periods while
referring to those locations by code name—Green, Cobalt,
Blue. See, e. g., Senate Report 99–108 (referencing torture
of various detainees at Detention Site Cobalt). In extensive

246 UNITED
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civil litigation preceding this suit, Mitchell and Jessen testi-
fed
using the same practice—speaking about the treatment
of detainees during specifc periods while using code names
where appropriate. Stipulation Regarding Discovery in
Salim v. Mitchell, No. 2:15–cv–286. The military commis-
sions where the government allowed Mitchell and Jessen to
appear employed the same procedure too. See, e. g., Tr. in
United States v. Khalid Shaikh Mohammad, p. 31371, pt. 4
(Jan. 27, 2020).
Despite all this, the government asks us to dismiss this
lawsuit. What worked before, the government submits,
cannot work again. Unlike previous lawsuits, this one alone
must be dismissed at its outset. And, the government in-
sists, this Court owes “utmost deference” to its demand.
Brief for United States 19 (internal quotation marks
omitted).
II
A
I do not question that Article II grants the Executive sub-
stantial authority over the conduct of the Nation's foreign
affairs. Cf. Nestlé USA, Inc. v. Doe, 593 U. S. –––, ––– – –––
(2021) (Gorsuch, J., concurring). Nor do I doubt that the
Executive's responsibility in this feld often “poses `delicate'
and `complex' questions involving `large elements of proph-
ecy . . . for which the Judiciary has neither aptitude, facilities
nor responsibility.' ” Id., at ––– (quoting Chicago & South-
ern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103,
111 (1948) (Jackson, J.)).
At the same time, in this arena as in many others, the
Constitution sometimes envisions a degree of interdepend-
ence between the branches of our government. So, for ex-
ample, while the Executive bears many responsibilities over
foreign affairs, Congress alone possesses the power to raise
armies, maintain a navy, declare war, and fund foreign expe-
ditions. Art. I, § 8. Also, Congress enjoys substantial
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247
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power when it comes to regulating the jurisdiction of the
federa
l courts—a power it has employed from time to time
to authorize judges to entertain cases and controversies im-
plicating foreign affairs. See, e. g., Judiciary Act of 1789, § 9,
1 Stat. 77; Traffcking Victims Protection Reauthorization
Act of 2003, § 4(a)(4)(A), 117 Stat. 2878.
Our case is such a case. In 28 U. S. C. § 1782, Congress
has expressly authorized federal courts to order discovery
from domestic persons in aid of foreign proceedings like the
ongoing Polish prosecution. No one suggests that, on its
face and in all its applications, § 1782 intrudes on powers
vested in the Executive alone. Normally, too, when Con-
gress endows the Judiciary with the statutory authority to
decide a case, we have a “virtually unfagging ” obligation to
do just that. Colorado River Water Conservation Dist. v.
United States, 424 U. S. 800, 817 (1976). In deciding cases
lawfully put to us, courts generally must respect as well the
ancient rule that the public enjoys a right to “every man's
evidence.” 4 J. Wigmore, Evidence in Trials at Common
Law § 2192, p. 2965 (1905). In this country, no one stands
above the law; not even the President may defect eviden-
tiary inquiries just because they may prove inconvenient or
embarrassing. See Trump v. Vance, 591 U. S. –––, ––– – –––
(2020); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
579, 646 (1952) (Jackson, J., concurring) (“No penance would
ever expiate the sin against free government of holding that
a President can escape control of executive powers by law
through assuming his military role”).
None of this is to suggest that the state secrets privilege
is inconsistent with our separation of powers. Even a stat-
ute that constitutionally allows federal courts to pass on mat-
ters touching on foreign affairs in most cases may, in some
applications, trench on powers the Constitution reserves for
the Executive. It is simply that the privilege is no blunder-
buss and courts may not fee from the feld at its mere dis-
play. Instead, when the Executive seeks to withhold every
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man's evidence from a judicial proceeding thanks to the pow-
ers
it enjoys under Article II, that claim must be carefully
assessed against the competing powers Articles I and III
have vested in Congress and the Judiciary. The original de-
sign of the Constitution and “our historic commitment to the
rule of law” demand no less. United States v. Nixon, 418
U. S. 683, 708 (1974).
10
B
The Constitution's insistence on this point is clear from our
history. Today, the Executive demands “utmost deference”
to its judgment that Zubaydah's suit should be dismissed.
Brief for United States 19 (internal quotation marks omit-
ted). But over 200 years ago, an attorney for the United
States acting on behalf of President Jefferson pursued a simi-
lar line, insisting on the President's right to withhold evi-
dence that “might contain state secrets” from the trial of
Aaron Burr. United States v. Burr, 25 F. Cas. 30, 31
(No. 14,692d) (CC Va. 1807). And Chief Justice Marshall ex-
pressly refused to afford that kind of latitude.
To be sure, under English law the King could “do no
wrong,” he could not “be named in debate,” and he enjoyed
largely unfettered discretion to withhold evidence from legal
proceedings. See id., at 34. But, Chief Justice Marshall
explained, such rules have no place in our Republic given
that “many points of difference . . . exist between the frst
magistrate in England and the frst magistrate of the United
States.” Ibid. Instead, if the President wishes to withhold
evidence from a lawfully authorized judicial proceeding he
10
The majority invokes Department of Navy v. Egan for the proposition
that we should be “ `reluctan[t] to intrude upon the authority of the Execu-
tive in military and national security affairs.' ” Ante, at 205 (quoting 484
U. S. 518, 530 (1988)). But the majority omits an important caveat found
in the same sentence it quotes: “unless Congress specifcally has provided
otherwise.” Egan, 484 U. S., at 530. Because Congress has expressly
authorized the Judiciary to entertain this suit, it follows that we may not
refexively defer to the Executive's wish to see it dismissed.
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Gorsuch, J., dissenting
must at least “state the particular reasons” for his action.
U
nited States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC
Va. 1807). And while the Judiciary should pay “all proper
respect” to those reasons, as an independent branch of gov-
ernment it must decide for itself whether to sustain a claim
of privilege in its proceedings, bearing in mind that it is a
“very serious thing ” to allow any party to withhold relevant
evidence. Ibid.
Had Chief Justice Marshall envisioned a rule of “utmost
deference” to executive claims of privilege replicating some-
thing like the privilege the English crown enjoyed, it would
have been the simplest thing for him to say so. Instead,
the “clear implication” of his opinions in Burr is that “the
President's special interests may warrant a careful judicial
screening of subpoenas after the President interposes an ob-
jection, but that some subpoenas will nevertheless be prop-
erly sustained by judicial orders of compliance.” Nixon v.
Sirica, 487 F. 2d 700, 710 (CADC 1973). And “the ultimate
decision” on such matters “remain[s]” with a court of law.
Ibid.; see also Vance, 591 U. S., at –––.
11
11
Justice Thomas observes that President Jefferson did not seek to
withhold evidence on state secrets grounds. Ante, at 227. That much is
true. A government attorney invoked the privilege on the President's
behalf, relying on a “communication from the president.” Burr, 25 F.
Cas., at 191. And Chief Justice Marshall—perhaps wary of ascribing the
attorney's arguments to the President—expressed some concern on this
score. See id., at 192. But as this Court has recounted, President Jeffer-
son was anything but ignorant of the proceedings and had raised privilege
concerns in a letter to the attorney. See Vance, 591 U. S., at ––– – –––.
Nor, in any event, is it clear what difference this makes: As Justice
Thomas acknowledges, the Chief Justice discussed how the state secrets
privilege would operate if and when the President chose to submit “par-
ticular reasons” for withholding evidence. Burr, 25 F. Cas., at 192;
see ante, at 227. Justice Thomas stresses that, in the course of this
discussion, Chief Justice Marshall acknowledged that the President “may”
rather than “must” state his particular reasons for seeking to withhold
evidence. Ante, at 228. But Chief Justice Marshall nowhere suggested
that the state secrets privilege should apply in this country without such
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Almost 150 years after Burr, the Court reaffrmed this
same
understanding in United States v. Reynolds, 345 U. S.
1 (1953). There, executive offcials once more sought some-
thing like “utmost deference” to their claim that evidence
should be suppressed from judicial proceedings in the name
of national security. Id., at 6. And once more the Court
refused to indulge that view. In England, Kings may have
enjoyed the kind of latitude the government sought. Id., at
7 (citing Duncan v. Cammell, Laird & Co., [1942] A. C. 624).
But under our Constitution, Reynolds emphasized, the Exec-
utive may not judge its own case: “Judicial control over the
evidence in a case cannot be abdicated to the caprice of exec-
utive offcers.” 345 U. S., at 9–10.
In this particular, our Nation broke from English practice.
The Declaration of Independence did not endorse crown pre-
rogatives but described many as evils. The Constitution did
not create a President in the King 's image but envisioned an
executive regularly checked and balanced by other authori-
ties. Our Founders knew from hard experience the “intoler-
able abuses” that fow from unchecked executive power. Id.,
at 8; see also Youngstown, 343 U. S., at 641 (Jackson, J.,
concurring).
Nor is their experience an alien one. More recent history
reveals that executive offcials can sometimes be tempted to
misuse claims of national security to shroud major abuses
and even ordinary negligence from public view. In Kore-
matsu v. United States, the President persuaded this Court
to permit the forced internment of Japanese-American citi-
zens during World War II. 323 U. S. 214 (1944). The Presi-
dent did so in part by relying on a military report that in-
sisted immediate action was imperative to national security.
Id., at 235–236 (Murphy, J., dissenting). The report, how-
a statement. See Vance, 591 U. S., at –––. Nor did he guarantee that
producing such a statement would automatically spell the end of the judi-
cial inquiry, as Justice Thomas seems to suppose. See Burr, 25 F. Cas.,
at 192; Vance, 591 U. S., at –––.
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ever, contained information executive offcials knew to be
fa
lse at the time. Yet it took decades before the govern-
ment publicly acknowledged its misrepresentation to this
Court. See Dept. of Justice, Archives, N. Katyal, Confes-
sions of Error: The Solicitor General's Mistakes During the
Japanese-American Internment Cases (May 20, 2011). And
still more years passed before this Court formally repudiated
its decision. See Trump v. Hawaii, 585 U. S. –––, ––– (2018).
In Reynolds, a similar story unfolded. There, families of
civilians killed in the crash of an Air Force plane sued the
government for negligence and sought its offcial accident
report. The government invoked the state secrets privilege
and fled a declaration asking courts to shield the document
from disclosure. In response, this Court refused to afford
the government utmost deference but ultimately allowed it
to withhold the report. The Court did so without even
pausing to review the report independently in chambers or
asking a lower court to take up that task. See Reynolds,
345 U. S., at 10–11. Decades later, when the government
released the report, it turned out to contain no state se-
crets—only convincing proof of governmental negligence.
See J. Weinstein, The Role of Judges in a Government of,
by, and for the People: Notes for the Fifty-Eighth Cardozo
Lecture, 30 Cardozo L. Rev. 1, 92 (2008). So it seems that,
in the very case where this Court stressed the importance of
carefully examining claims of privilege, families were denied
access to proof to which they were lawfully entitled only be-
cause this Court accepted the Executive's declaration at
face value.
More recent history bears its cautions too. The govern-
ment invoked the state secrets privilege only 16 times be-
tween 1961 and 1980. See Brief for Public Citizen as Ami-
cus Curiae 9. Yet it has done so at least 49 times between
2001 and 2021. See id., at 9–10. What is more, the propri-
ety of several of these assertions has been called into ques-
tion. Id., at 10–17 (collecting examples); see also id., at 21–
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24 (documenting alleged improper governmental withholding
of
information in FOIA cases); W. Weaver & R. Pallitto,
State Secrets and Executive Power, 120 Pol. Sci. Q. 85, 101,
107–112 (2005) (Weaver & Pallitto).
For decades, public servants ranging from Erwin Griswold
to Donald Rumsfeld and Porter Goss have complained about
overclassifcation by the Executive Branch. See, e. g., Brief
for Public Citizen as Amicus Curiae 17–19. Offcials who
have served in the Executive Branch have estimated that
between 50% and 90% of classifed material does not merit
that treatment. Id., at 19–20. In 1996, the federal govern-
ment made about 5.8 million classifcation decisions; by 2017,
that number reached approximately 49 million. Compare
National Archives and Records Admin., Information Secu-
rity Oversight Offce, 2010 Report to the President 12, with
National Archives and Records Admin., Information Secu-
rity Oversight Offce, 2017 Report to the President 1–2. It
seems the government once even classifed a memo from one
member of the Joint Chiefs of Staff to another discussing
how too many documents were being classifed. Weaver &
Pallitto 87.
It may be understandable that those most responsible for
the Nation's security will seek to press every tool available
to them to maximum advantage. There has always been
something of a “hydraulic pressure inherent within each of
the separate Branches” to test “the outer limits of its
power.” INS v. Chadha, 462 U. S. 919, 951 (1983). It may
be nothing less than human nature. But when classifcation
standards are “so broadly drawn and loosely administered,”
temptation enough exists for executive offcials to “cover up
their own mistakes and even their wrongdoing under the
guise of protecting national security.” K. Mayer, With the
Stroke of a Pen: Executive Orders and Presidential Power
145 (2001) (internal quotation marks omitted). This Court
hardly needs to add fuel to that fre by abdicating any pre-
tense of an independent judicial inquiry into the propriety of
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a claim of privilege and extending instead “utmost defer-
ence”
to the Executive's mere assertion of one. Walking
that path would only invite more claims of secrecy in more
doubtful circumstances—and facilitate the loss of liberty and
due process history shows very often follows.
12
C
Accepting that independent judgment is required of us in
cases like this one, how exactly should we proceed? If the
government's “utmost deference” test is not appropriate,
what rules are? Our precedents offer a number of lessons.
First, Reynolds held that, when the Executive seeks to
withhold evidence from a congressionally authorized judicial
proceeding, it must show a “reasonable danger” of harm to
national security would follow otherwise. 345 U. S., at 10.
To be sure, most parties who seek to invoke an evidentiary
privilege bear the burden of showing their entitlement to do
so by a preponderance of proof. See, e. g., 1 C. Mueller & T.
Kirkpatrick, Federal Evidence § 1:32, pp. 213–214 (4th ed.
Supp. 2021). And here the government's burden is a good
deal more forgiving. But I can also see why. The line
12
In defending the government's proposed “utmost deference” standard,
Justice Thomas stresses that the duty to produce every man's evidence
“is not insisted upon” when a privilege applies. Ante, at 226 (internal
quotation marks omitted). He also highlights that § 1782 does not compel
individuals to provide evidence when doing so would “violat[e]” a “legally
applicable privilege.” Ibid. (internal quotation marks omitted). But nei-
ther of these truisms answers the question when the state secrets privi-
lege applies—let alone proves that a court should afford “utmost defer-
ence” to the mere assertion of a privilege. The truth is, privileges against
the production of evidence apply “only where necessary to achieve [their]
purpose” given that they have the “effect of withholding relevant evidence
from the factfnder.” Fisher v. United States, 425 U. S. 391, 403 (1976).
And it is a “fundamental maxim” that “any exemptions which may exist
to [the general rule favoring disclosure] are distinctly exceptional,” and
therefore “all privileges of exemption . . . should be recognized only within
the narrowest limits defned by principle.” J. Wigmore, Evidence § 2192,
pp. 64, 67 (3d ed. 1940).
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Reynolds drew seeks to accommodate the separation of pow-
ers:
It ensures that a congressional mandate to entertain a
case or controversy will not be automatically frustrated. It
guarantees a degree of independent judicial review. Yet it
also seeks to respect the Executive's specially assigned con-
stitutional responsibilities in the feld of foreign affairs and
the delicate and complex predictive judgments the Executive
often must make there.
Second, when assessing a state secrets claim courts may—
and often should—review the evidence supporting the gov-
ernment's claim of privilege in camera. Reynolds said that
“[w]hen” the government can show a reasonable danger of
harm exists by means of a declaration, a “court should not
. . . insis[t] upon an examination of the evidence, even by the
judge alone, in chambers.” 345 U. S., at 8, 10. But at the
same time, the Court also stressed that, before excluding
evidence, a judge “must be satisfed” that a reasonable dan-
ger of harm would fow from its production—and that this is
a responsibility no court may “abdicat[e].” Id., at 9–10.
From this, it follows that in cases of doubt more careful scru-
tiny is required before a court may uphold a claim of
privilege.
It is at this point, too, where the magnitude of a party's
need for the requested evidence may become relevant.
Reynolds explained that the extent of a party's need for the
government's evidence can inform “how far the court should
probe in satisfying itself that the occasion for invoking the
privilege is appropriate.” Id., at 11. But Reynolds did not
create a threshold inquiry requiring a litigant to demonstrate
its need for relevant evidence before the government must
show a reasonable danger of harm would fow from its pro-
duction. Today's majority recognizes this point, explaining
that “only after satisfying itself that the Government has
offered a valid reason for invoking the privilege would a
court turn to the issue of necessity.” Ante, at 209 (citing
Reynolds, 345 U. S., at 10–11).
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Here again, I see a balance consistent with the Constitu-
ti
on's design. A court persuaded that the government has
met its burden by declaration may fnd the privilege properly
invoked. But a court harboring questions must probe fur-
ther and examine the bases for the government's assertions
in camera. Nor may a court allow the government to deny
access to every man's evidence unless and until it establishes
its lawful entitlement to do so. This Court has endorsed a
similar procedure for resolving claims of executive privilege
in other contexts. See, e. g., Nixon, 418 U. S., at 713–715,
and n. 21. Congress has authorized parallel procedures in
several statutes implicating national security information.
See, e. g., Foreign Intelligence Surveillance Act of 1978, 92
Stat. 1785, as amended, 50 U. S. C. § 1806(f ); Classifed Infor-
mation Procedures Act, 18 U. S. C. App. § 4, p. 414. And
courts routinely test claims of entitlement to other ancient
and venerable privileges in just this way. See, e. g., United
States v. Zolin, 491 U. S. 554, 556 (1989) (holding that in cam-
era review may be used to probe crime-fraud challenges to
attorney-client privilege); see also n. 12, supra (observing
that privileges generally “should be recognized only within
the narrowest limits defned by [the] principle[s]” animating
them (internal quotation marks omitted)).
Third, the state secrets privilege protects the government
from the duty to supply certain evidence, but it does not
prevent a litigant from insisting that the government
produce nonprivileged evidence in its possession. Nor does
the privilege preclude a litigant from pursuing its case other-
wise. As our cases explain, the trial simply “goes on” with-
out the government's privileged proof. General Dynamics
Corp. v. United States, 563 U. S. 478, 485 (2011); see also
Reynolds, 345 U. S., at 11. In this way, the state secrets
privilege again operates like many others—whether selfn-
crimination, attorney-client, or spousal—by suspending a
party's duty to provide privileged evidence but never prohib-
iting an opponent from seeking nonprivileged evidence or
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proving its case using facts obtainable through other means.
See
, e. g., Schmerber v. California, 384 U. S. 757, 761 (1966).
In this way, too, it seems to me that the privilege seeks to
respect the separation of powers. The Executive may have
a national security interest in keeping certain evidence to
itself. It may have an interest in avoiding the necessity of
having to confrm or deny a fact. But that executive inter-
est does not extend to quashing suits that Congress has au-
thorized the Judiciary to entertain—and that the Judiciary
has a “virtually unfagging ” duty to resolve. Colorado
River Water Conservation Dist., 424 U. S., at 817.
Admittedly, this Court has held that some contract dis-
putes between spies and the government may be dismissed
at their outset. See Totten v. United States, 92 U. S. 105,
107 (1876); Tenet v. Doe, 544 U. S. 1, 3 (2005). But the Court
has done so only on the ground and to the extent that allow-
ing these cases to proceed would “ `inevitably lead to the dis-
closure of ' state secrets.” General Dynamics, 563 U. S., at
486 (quoting Totten, 92 U. S., at 107). In rare cases like
these, it may simply be impossible to adjudicate a claim with-
out privileged evidence from the government. Still, none of
that displaces the general rule that the privilege protects
only against the production of certain evidence—not the in-
convenience of lawsuits. If a way exists for a court to dis-
charge its statutory duty to entertain a case without the
government's privileged proof, that way must be found.
Dismissal may be an easy out, but it is only rarely the correct
one. Even English courts applying the old crown privilege
sometimes afforded litigants the chance to prove their cases
independently without the beneft of privileged proof. See,
e. g., H. M. S. Bellerophon, 44 LJR 5, 5–9 (Admlty. 1875).
Fourth, after the government properly invokes the privi-
lege, a court may still be able to explore options to make the
government's evidence available to litigants in some form as
long as it fully respects the government's national security
interests. Lower courts have a long history here. They
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257
Gorsuch, J., dissenting
have used protective orders and other security procedures
to
allow sensitive governmental information to be shared—
options Congress has borrowed and endorsed for use in cases
arising under the Foreign Intelligence Surveillance Act of
1978 and the Classifed Information Procedures Act. 50
U. S. C. § 1806(f ); 18 U. S. C. App. §§ 3–4, p. 414. Lower
courts have appointed special masters with security clear-
ances to provide unclassifed summaries to litigants who lack
such clearances. See, e. g., In re United States Dept. of De-
fense, 848 F. 2d 232, 234 (CADC 1988). Judges have worked
with executive offcials to craft nonprivileged substitute ver-
sions of particular pieces of evidence. Cf. In re Sealed Case,
494 F. 3d 139, 153 (CADC 2007); see also 18 U. S. C. App.
§ 6(c)(1), p. 415. Suppressing evidence from a congression-
ally authorized judicial proceeding may not be an appro-
priate remedy if valid executive interests can be fully pro-
tected by less intrusive means.
III
The majority does not dispute that the principles set out
in Part II should guide the resolution of any state secrets
dispute. See ante, at 205–206. Instead, the majority in-
sists that the only disagreement between us concerns “how
th[e]se principles should apply to the specifc discovery re-
quests Zubaydah has made in this litigation.” Id., at 206.
Recall that the Ninth Circuit permitted discovery on just
two things: (1) the location of the CIA's detention site, and
(2) details about Zubaydah's interrogation by the CIA, his
treatment, and his conditions of confnement.
A
Start with the frst of these. The Executive seeks to
withhold evidence about the location of its detention site
from a congressionally authorized judicial proceeding. To
do so, it bears the burden of showing that a “reasonable dan-
ger” of harm to national security would follow from sharing
the information sought. Reynolds, 345 U. S., at 10. How
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does the government seek to discharge that burden in this
case?
Zubaydah seeks evidence from Mitchell and Jessen.
The pair have long since stopped working for the govern-
ment. Still, the government insists, any evidence they sup-
ply would be widely understood as speaking for the Execu-
tive Branch. Brief for United States 26. (That premise I
accept for argument's sake.) And, the government contin-
ues, if the pair were asked to confrm or deny the existence
of a black site in Poland, their answer could complicate ef-
forts to secure assistance from foreign governments for fu-
ture operations. Id., at 27–28.
Even on its own terms, however, the government's submis-
sion faces an immediate problem. What was once a secret
can, with the passage of time, become old news. See United
States v. Ahmad, 499 F. 2d 851, 855 (CA3 1974). There may
be cases where requiring the government to confrm a widely
known but not “offcially” disclosed fact could pose a national
security risk suffcient to justify withholding evidence. See
ante, at 207–208. Hypothetically, as the Court explains, de-
manding the government to admit “the existence of a CIA
site in Country A” could “diminish the extent to which the
intelligence services of Countries A, B, C, D, etc.” might be
willing to cooperate “with our own intelligence services in
the future.” Ante, at 208. The diffculty is, the govern-
ment has not carried its burden of showing this case falls
into that category.
The record before us is stark. Zubaydah's detention in
Poland took place 20 years ago. The location of the CIA's
detention site has been acknowledged by the former Polish
President, investigated by the Council of Europe, and proven
“beyond reasonable doubt” to the European Court of Human
Rights. See Part I–B, supra. Doubtless, these disclosures
may have done damage to national security interests. But
nothing in the record of this case suggests that requiring the
government to acknowledge what the world already knows
to be true would invite a reasonable danger of additional
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Gorsuch, J., dissenting
harm to national security. The government's only evidence
is
a declaration couched in conclusory terms, which the Dis-
trict Court found unpersuasive. See App. to Pet. for Cert.
45a, 52a–53a, 59a. It rests on the same sort of hypothetical
the majority posits today—making no effort to grapple with
the particulars of this case.
Even the majority seems uncomfortable with the govern-
ment's declaration. The best the majority can say is this:
The location of a CIA detention site in Poland qualifes as a
“state secret” because “we have found nothing in the eviden-
tiary record that casts doubt” on the declaration's conclusory
assertion that national security harms could follow from ac-
knowledging its existence. Ante, at 209. But notice how
this effectively reverses the burden of proof. The majority
starts with the government's conclusory assertion—and then
proceeds to place on Zubaydah the burden of disproving it.
A bare expression of national security concern becomes rea-
son enough to deny the ancient right to every man's evidence.
This may be a nice move, but it is unpersuasive. Since
Burr, this Court has held that the Executive must do more
than assert a harm to national security “might” follow from
producing evidence. See Part II–B, supra. Since Rey-
nolds, this Court has required a “reasonable,” not a specula-
tive, showing of harm. See Part II–B, supra. If the
government could withhold evidence and even compel the
dismissal of lawsuits based on nothing more than a conclu-
sory assertion of national security concerns—and if the bur-
den fell on private persons to disprove those concerns—it is
hard to imagine what case a court could not be forced to
close. That kind of executive prerogative might have once
been part of the law of England; it has never been the law
here. See Parts II–B and II–C, supra.
Under our law, a court not fully satisfed by the govern-
ment's showing of harm has a duty to inquire further. See
Part II–C, supra. In this case, I would have thought that
concerns about the conclusory nature of the government's
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declaration would have led the Court at least to remand the
matter
to the District Court for in camera review of any
evidence the government might wish to present to substanti-
ate its privilege claim. Crediting doubtful representations
has led this Court to embarrassments in the past. See Part
II–B, supra. I would not risk a repeat.
B
Looking past these problems only serves to expose an-
other and maybe more fundamental one. Assume now with
the government that confrming the existence of a detention
site in Poland really does qualify as a state secret. Put
aside that part of the Ninth Circuit's decision allowing dis-
covery to proceed on that question. What about the Court
of Appeals' separate holding that Zubaydah is entitled to dis-
covery about his interrogation, treatment, and conditions of
confnement? Recall that Zubaydah's lawyers have long
maintained that, at a minimum, they should be allowed to
ask about those matters within the date range of December
2002 through September 2003 and without reference to geog-
raphy or Polish personnel. See Part I–C, supra. Recall,
too, that even the government has conceded that “the en-
hanced interrogation techniques employed with respect to
specifc detainees in the program, and their conditions of con-
fnement, are no longer classifed.” App. to Pet. for Cert.
143a. Normally, a statutorily authorized case must continue
without the government's privileged proof. See Part II–C,
supra. Why should this case be different and face dismissal
at its outset?
A plurality of the Court answers with a worry.
13
It fears
that “any response to Zubaydah's discovery requests would
inevitably tend to confrm or deny whether the CIA operated
a detention site located in Poland.” Ante, at 214. Appar-
ently, the plurality is concerned that, during the course of
13
Justice Kagan does not join this portion of the principal opinion and
instead appears largely to agree with us in what follows.
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Gorsuch, J., dissenting
their testimony about Zubaydah's treatment, Mitchell and
J
essen might inadvertently disclose the location of their ac-
tivities. See ante, at 213. To ward against this possibility,
the plurality insists, dismissal is the only option.
But that has never been enough to justify an invocation of
the state secrets doctrine to shield evidence, let alone the
dismissal of a lawsuit. No one cites any legal authority—
even under the old crown privilege in England—allowing the
Executive to withhold nonprivileged information and demand
a suit's dismissal only because executive agents might acciden-
tally disclose privileged information along the way. Surely
a party's propensity for error cannot be a point in its favor.
Nor is that the only thing surprising about the plurality's
argument. Many familiar judicial tools exist to protect par-
ties from their inadvertent disclosures. In prior detainee
civil litigation, the government attended Mitchell's and Jes-
sen's depositions and instructed them not to answer certain
sensitive questions. See, e. g., Brief for Respondents 7–8.
The District Court could insist on that same procedure here.
As an added precaution, the District Court could conduct
any depositions in its presence. Alternatively, the court
could enter a protective order preventing the parties from
sharing documents or other information with Polish authori-
ties or the public until the government has a chance to re-
view them. Alternatively still, Mitchell and Jessen could be
directed to provide their materials to the District Court so
that the court and the government would have a chance to
review their submissions before they are even transmitted
to Zubaydah's lawyers. It seems the government found ad-
vance review procedures like these suffcient when it allowed
Mitchell to publish a book about his involvement in the CIA's
interrogation program. It is unclear why they should be in-
suffcient now. See Part I–B, supra.
On top of all that, the District Court might require Mitch-
ell and Jessen to use code names or redact privileged infor-
mation when supplying their evidence. The Senate Report

262 UNITED
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used these tools, speaking of “Detention Site Blue” in lieu of
“Poland”
more than 60 times and redacting certain materials
from its public report, all while recounting in detail how
Mitchell and Jessen tortured other detainees at that site.
See Part I–B, supra. Mitchell and Jessen likewise used
code names to shield foreign country names when they testi-
fed in prior civil litigation and before a military commission
at Guantánamo Bay. Indeed, according to an amicus, the
government even fled a motion in the military commission
proceedings endorsing the practice. See Brief for Elec-
tronic Frontier Foundation as Amicus Curiae 23.
The plurality barely pauses to consider any of these safe-
guards against the government's potential negligence. It
acknowledges these “techniques have successfully prevented
the disclosure of classifed information in previous litigation
on related subject matter.” Ante, at 213–214. But in a
bare ipse dixit, the plurality asserts these same tools “would
not be effective here.” Ante, at 214. In failing to give
careful consideration to potential safeguards that would
allow this case to proceed, the plurality defes a central and
consistent teaching of this Court's state secrets jurispru-
dence—that executive claims of privilege in congressionally
authorized proceedings are not to be refexively accepted,
and remedies short of dismissal must be preferred. See
Part II–C, supra. The plurality confuses appropriate defer-
ence to the Executive's predictive judgments about foreign
affairs with inappropriate deference to the Executive's con-
cerns about its own mishaps, misstatements, and mistakes.
In the process, the plurality abdicates judicial responsibility
to use ordinary tools of litigation management in favor of the
Executive's wish to brush this case out the door. We do no
honor to the rule of law in acquiescing to that impulse.
C
Unable to explain how the government would be harmed
by allowing this litigation to continue, the plurality seeks
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Gorsuch, J., dissenting
to fip the script. Now, it contends that “much of [the]
i
nformation” Zubaydah seeks “is already publicly avail-
able from other sources,” so “further judicial probing of
the Government's privilege claim” is unwarranted. Ante,
at 213.
This submission faces its own problems. A litigant's ne-
cessity for the evidence he seeks may inform how far a court
must go in testing the government's claim of privilege. But
in all cases the government bears the burden of proving its
entitlement to the privilege. See Part II–C, supra. And it
has not carried that burden here. The government worries
about confrming the location of its detention site, but it has
not shown how doing so would harm national security in
light of how well documented that fact already is. Worse,
the government has not even shown how this lawsuit would
require it to confrm the location of its detention site. We
do not have in this case a question about how far to probe
the government's privilege claim; we have not probed that
claim at all. We have replaced independent inquiry with a
rubber stamp.
Troubling, too, the plurality's argument rests on facts of
its own surmise. Yes, a great deal of public information ex-
ists about Zubaydah's treatment during other periods. And
maybe the location of his detention site is known to the
world. But Zubaydah's lawyers tell us that the public rec-
ord contains no comparable information about what hap-
pened “inside [his] cell” from December 2002 until September
2003. See Tr. of Oral Arg. 41. That, they say, is the pri-
mary reason this lawsuit exists. See Part I–C, supra. The
government does not seriously dispute the comparative lack
of public evidence about Zubaydah's treatment during the
relevant period—and it is unclear why the plurality pursues
the point on the government's behalf. As recently as 2015,
the government rejected a diplomatic request by Polish
prosecutors seeking information about Zubaydah's treat-
ment. Letter from B. Fletcher, Acting Solicitor General, to
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S. Harris, Clerk of Court 1, 3 (Oct. 15, 2021) (Government
Letter).
Rather
than face these problems, the plurality attempts a
way around them. Perhaps Zubaydah does not yet have the
information he needs. But, the plurality replies, we re-
cently received a letter from the government. In it, the
government says it will now allow Zubaydah to mail a docu-
ment from Guantánamo Bay to Polish prosecutors detailing
his treatment during the relevant period. So at least in this
way, the plurality reasons, Zubaydah's need for evidence
from Mitchell and Jessen “may” become “diminished” in the
future. Ante, at 213.
It is easy enough to see why the plurality hedges here.
Not only has the government already once refused a request
from Polish authorities asking for information about Zubay-
dah's treatment. The government's apparent change of
heart came only after argument in this case, in response to
questions from the bench. And a closer look at the govern-
ment's offer unmasks its emptiness. No one seems confdent
that Zubaydah remains mentally competent to testify about
his treatment decades ago.
14
Pointedly, too, the government
states in its letter that it reserves the right to subject what-
ever he produces “to a security review”—all without indicat-
ing what standards it will apply in that “review.” Govern-
ment Letter 3. In the end, then, the government's offer
seems little more than an offer to let Zubaydah say whatever
the government chooses to allow him to say.
Then there is this. In response to the government's let-
ter, Zubaydah's lawyers have lodged their own. In it, as
they have before, they offer a middle way. At the very
least, Zubaydah's lawyers ask this Court to hold off dismiss-
ing this case until we know whether and to what extent the
14
Zubaydah's lawyers represent that they do not know “whether and to
what extent, after years of torture and solitary confnement, he can still
reliably reconstruct this history.” Letter from D. Klein, Counsel for Re-
spondent Abu Zubaydah, to S. Harris, Clerk of Court 2 (Oct. 25, 2021).

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Gorsuch, J., dissenting
government will make good on its late-blooming promise.
Letter
from D. Klein, Counsel for Respondent Abu Zubay-
dah, to S. Harris, Clerk of Court 2 (Oct. 25, 2021). Yet
rather than remand this case to allow the District Court to
supervise that process, the plurality refuses even this paltry
accommodation. It does so without as much as the courtesy
of an explanation.
D
Ultimately, the plurality is forced to give ground. While
it insists that “any” response to Zubaydah's current requests
“would inevitably tend to confrm or deny whether the CIA
operated a detention site located in Poland,” it goes out of
its way to note that “a different discovery request fled by
Zubaydah might avoid the problems” the plurality believes
exist here. Ante, at 214. In other words, it seems that Zu-
baydah remains free to fle a new lawsuit seeking informa-
tion about his interrogation, treatment, and conditions of
confnement as long as he does not ask for location informa-
tion where his “need is not great.” Id., at 212, 213–214.
But what is the point of forcing Zubaydah to fle a new
lawsuit? Location information is only part of what the
Court of Appeals permitted and Zubaydah seeks. Sepa-
rately, the Court of Appeals allowed Zubaydah's lawyers to
inquire about his interrogation, treatment, and conditions of
confnement. And throughout this litigation, Zubaydah's
lawyers have indicated a willingness to employ any number
of tools to disaggregate that evidence from information that
might reveal the site's location or the involvement of foreign
nationals. As they put it before the District Court, “[v]alu-
able discovery may proceed without requiring [Mitchell and
Jessen] to confrm either the location of any particular site,
or the cooperation of any particular government.” App. to
Pet. for Cert. 42a. As the District Court acknowledged, too,
courts possess substantial authority to “modify or limit the
scope” of any party's discovery requests. Id., at 55a. It is
unfathomable why this Court should ignore that option in
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Page Proof Pending Publication
266 UNITED
STATES v. ZUBAYDAH
Gorsuch, J., dissenting
this case and insist on a new one. At worst, the delay may
effec
tively deny Zubaydah congressionally authorized dis-
covery into admittedly nonprivileged information. At best,
it will prove a pointless formality.
*
In the end, only one argument for dismissing this case at
its outset begins to make sense. It has nothing to do with
speculation that government agents might accidentally blurt
out the word “Poland.” It has nothing to do with the fction
that Zubaydah is free to testify about his experiences as he
wishes. It has nothing to do with fears about courts being
unable to apply familiar tools to disaggregate discovery re-
garding some issues (location, foreign nationals) from others
(interrogation techniques, treatment, and conditions of con-
fnement). Really, it seems that the government wants this
suit dismissed because it hopes to impede the Polish criminal
investigation and avoid (or at least delay) further embarrass-
ment for past misdeeds. Perhaps at one level this is easy
enough to understand. The facts are hard to face. We
know already that our government treated Zubaydah bru-
tally—more than 80 waterboarding sessions, hundreds of
hours of live burial, and what it calls “rectal rehydration.”
Further evidence along the same lines may lie in the govern-
ment's vaults. But as embarrassing as these facts may be,
there is no state secret here. This Court's duty is to the
rule of law and the search for truth. We should not let
shame obscure our vision.

Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 227, line 13, the additional “the” is deleted
p. 253, n. 12, line 7, “answer” is replaced with “answers”
p. 253, n. 12, line 8, “prove” is replaced with “proves”
p. 265, line 18 from bottom, “Id., at 15, 17” is replaced with “Ante, at 212
(majority opinion), 213–214 (plurality opinion)”