Zayn-al Abidin Muhammad Husayn (Abu Zubaydah) is currently held at the U.S. detention facility in Guantanamo Bay. Abu Zubaydah was formerly detained overseas as part of the CIA’s post-9/11 “enhanced interrogation” or torture program. In 2017, Abu Zubaydah and his attorney Joseph Margulies filed a discovery application, pursuant to 28 U.S.C. § 1782, seeking an order to subpoena two government contractors for depositions for use in an ongoing criminal investigation in Poland about the torture to which Abu Zubaydah was subjected in that country. After the United States intervened and asserted the state secrets privilege, the district court quashed the subpoenas. The court of appeals reversed and remanded, holding that some of the information sought by the plaintiffs was privileged and that some was not, and that district court erred by failing to consider whether the nonprivileged information could be disentangled from the privileged information and then disclosed. The government petitioned the Supreme Court for review, and the Supreme Court granted the government’s petition.
In the Supreme Court, Public Citizen filed an amicus curiae brief in support of the plaintiffs. The brief explained that, to fulfill the courts’ responsibility to serve as a check on the executive, the executive’s assertions of a need for secrecy, when raised in litigation, must be subject to meaningful judicial review. Although in many instances, the government’s assertions that information must remain secret prove to be meritorious, in a distressing number of cases the government’s assertions of secrecy over information concerning national security have been baseless. The courts thus play a critical role in assessing whether the government’s assertion of the state secrets privilege is proper.