United States v. Zubaydah

JUSTICE GORSUCH, with 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 v. Indiana , 338 U. S. 49, 52 (1949). This case takes us well past that point. Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the Court acquiesces in that request. Ending 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 Zubaydah. In 2014, a Select Committee of the United States Senate published a 683-page report about the CIA’s detention 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 Pakistan 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 officials thought Zubaydah might have been the “third or fourth man” in al Qaeda and withholding information about the September 11 attacks and potential future assaults. 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 techniques.” Brief for United States 3. Mitchell and Jessen 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 coffins for hundreds of hours, and performed rectal exams designed to establish “total control over the detainee.” Id. , at 42–43, 82, 231, n. 1316, 488, 495 (internal quotation marks omitted). Six days into his ordeal, Zubaydah was sobbing, twitching, and hyperventilating. Id. , at 41, 43, 111–112. During one waterboarding session, Zubaydah became “completely unresponsive, with bubbles rising through his open, full mouth.” Id. , at 43–44 (internal quotation marks omitted). He became so compliant that he would prepare for waterboarding at the snap of a finger. Id. , at 43.¶

By this point, Mitchell and Jessen concluded that it was “ ‘highly unlikely’ that Zubaydah possessed the information¶

------¶

1 Although the government has not confirmed it, published reports have placed Detention Site Green in Thailand. See, e.g. , S. Bengali & C. Megerian, The CIA Closed Its Original ‘Black Site’ Years Ago, L. A. Times, Apr. 22, 2018, https://www.latimes.com/world/asia/la-fg-thailandcia-haspel-2018-htmlstory.html.¶

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).¶

they were seeking,” and they sought to end the interrogations. 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 Senate 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 instructed the pair to continue their work. Id. , at 43. Following these directions, Mitchell and Jessen carried on for two more weeks until their superiors finally concluded that Zubaydah “did not possess any new terrorist threat information.” 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 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 report finding that the CIA held Zubaydah at a black site in Poland after his capture. 3 In 2012, Aleksander Kwasniewski, 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¶

------¶

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).¶

detained in Poland from December 2002 until September 2003. 5 In support of its conclusion, the ECHR cited evidence spanning over 100 pages, including declassified flight records, Polish governmental 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 extensivelywithout governmental objection—about their activities. In 2016, the CIA permitted Mitchell to publish a book. Enhanced Interrogation is available on Amazon from $13.99, where it is touted as “lift[ing] the curtain” on the CIA’s interrogation program, including “its methods, and its downfall.” 7 In 2017, as part of a lawsuit brought by other former CIA detainees, the government allowed Mitchell and Jessen to testify 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 headquarters 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 testified with governmental permission once more, this time in military commission hearings at Guantánamo Bay. Over eight days, covering 2,000 pages of testimony, Mitchell explained how Zubaydah was waterboarded and kept awake for 126 consecutive hours, along with other details¶

------¶

5 See id ., ¶¶ 404–529.¶

6 See, e.g. , Brief for Bureau of Investigative Journalism et al. as Amici Curiae 11–43 (citing examples).¶

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).¶

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 tortured other detainees at Detention Site Blue, including details about how they waterboarded one detainee 183 times over two weeks. Id. , at 65–72, 77–93, 101, 103, 268. But, Zubaydah’s lawyers tell us, the details of Zubaydah’s treatment 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 appropriate in that country. Pursuant to 28 U. S. C. §1782, Zubaydah’s attorneys filed 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.”¶

------¶

8 See Tr. in United States v. Khalid Shaikh Mohammad , pp. 3034830349 (Jan. 21, 2020); id. , at 30441–30443, 30469 (Jan. 22, 2020 (morning)).¶

9 See, e.g. , id. , at 32450–32467 (Jan. 31, 2020).¶

Early in the litigation, Zubaydah’s lawyers issued subpoenas to Mitchell and Jessen seeking their depositions and the production of documents. See Appendix, ante , at 19–20. Essentially, the requests fell into three main categories. Zubaydah’s lawyers sought: (1) information to confirm that Detention Site Blue was located in Poland; (2) details about Zubaydah’s interrogation, his treatment, and his conditions of confinement; and (3) information about the involvement of Polish officials.¶

The government filed a motion seeking to have the petition 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 specific detainees in the program, and their conditions of confinement, are no longer classified.” 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 accommodation. While they continued to pursue all of their requested 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 confirm either the location of any particular site, or the cooperation of any particular government.” Ibid. (internal quotation marks omitted). 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 government’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 secrets 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 expressed concern that if Mitchell and Jessen exposed the names of Polish officials and their roles at the site, it could complicate national security in light of the government’s declaration. Id. , at 59a.¶

On appeal, the Ninth Circuit affirmed in part and reversed in part. With respect to the third category of information Zubaydah sought, concerning the involvement of Polish nationals, 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 facility, operational details about the facility, and any contracts made with Polish government officials or private persons residing in Poland might implicate the CIA’s intelligence gathering 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 first and second categories of information Zubaydah sought. With respect to the first, the Court of Appeals pointed to the District Court’s finding that the CIA’s detention facility in Poland was widely known and did not qualify as a state secret. Ibid . Given that finding, 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 Appeals held that “information about the use of interrogation techniques,” “conditions of confinement,” 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¶

Dissatisfied with its partial victory before the Ninth Circuit, 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 5, 9, 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 detention site and the CIA’s treatment of Zubaydah therethe 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 lawyers defend it. But, as they have throughout the litigation, Zubaydah’s lawyers also offer an alternative. Before the District Court, they stressed that “[v]aluable discovery” could proceed into Zubaydah’s interrogations, treatment, and conditions of confinement without requiring Mitchell and Jessen to confirm “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 happened inside Abu Zubaydah’s cell between December 2002 and September 2003.” Ibid . It is this information—about Zubaydah’s interrogation, treatment, and conditions of confinement 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 declassified and documented in the Senate Report years ago. See, e.g. , Senate Report 67. The government has conceded, too, that the interrogation techniques Mitchell and Jessen employed and Zubaydah’s conditions of confinement and treatment within his cell during that period are “no longer classified.” 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 confinement from December 2002 until September 2003, with safeguards to protect against the disclosure 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 detainees at various sites during specific 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 civil litigation preceding this suit, Mitchell and Jessen testified using the same practice—speaking about the treatment of detainees during specific periods while using code names where appropriate. Stipulation Regarding Discovery in Salim v. Mitchell , No. 2:15–cv–286. The military commissions 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 insists, 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 substantial authority over the conduct of the Nation’s foreign affairs. Cf. Nestle USA , Inc. v. Doe , 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 5–6). Nor do I doubt that the Executive’s responsibility in this field often “poses ‘delicate’ and ‘complex’ questions involving ‘large elements of prophecy . . . for which the Judiciary has neither aptitude, facilities nor responsibility.'' Id ., at ___ (slip op., at 6) (quoting Chicago & Southern 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 interdependence between the branches of our government. So, for example, 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 expeditions. Art. I, §8. Also, Congress enjoys substantial power when it comes to regulating the jurisdiction of the federal courts—a power it has employed from time to time to authorize judges to entertain cases and controversies implicating foreign affairs. See, e.g. , Judiciary Act of 1789, §9, 1 Stat. 77; Trafficking Victims Protection Reauthorization Act of 2003, §4(a)(4)(A), 117 Stat. 2878.¶

Our case is such a case. In §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 Congress endows the Judiciary with the statutory authority to decide a case, we have a “virtually unflagging” 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 deflect evidentiary inquiries just because they may prove inconvenient or embarrassing. See Trump v . Vance , 591 U. S. ___, ___–___ (2020) (slip op., at 14–15); 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 statute that constitutionally allows federal courts to pass on matters 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 blunderbuss and courts may not flee from the field at its mere display. Instead, when the Executive seeks to withhold every man’s evidence from a judicial proceeding thanks to the powers 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 design 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¶

------¶

10 The majority invokes Department of Navy v. Egan for the proposition¶

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 omitted). But over 200 years ago, an attorney for the United States acting on behalf of President Jefferson pursued a similar line, insisting on the President’s right to withhold evidence 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 expressly 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 first magistrate in England and the first magistrate of the United States.” Ibid . Instead, if the President wishes to withhold evidence from a lawfully authorized judicial proceeding he must at least “state the particular reasons” for his action. United 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 government 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.¶

------¶

that we should be “ ‘reluctan[t] to intrude upon the authority of the Executive in military and national security affairs.’ ” Ante , at 8 (quoting 484 U. S. 518, 530 (1988)). But the majority omits an important caveat found in the same sentence it quotes: “unless Congress specifically 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 reflexively defer to the Executive’s wish to see it dismissed.¶

Had Chief Justice Marshall envisioned a rule of “utmost deference” to executive claims of privilege replicating something 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 objection, but that some subpoenas will nevertheless be properly 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 ___ (slip op., at 7). 11¶

Almost 150 years after Burr , the Court reaffirmed this same understanding in United States v. Reynolds , 345 U. S. 1 (1953). There, executive officials once more sought something like “utmost deference” to their claim that evidence¶

------¶

11 JUSTICE THOMAS observes that President Jefferson did not seek to withhold evidence on state secrets grounds. Ante , at 12. That much is true. A government attorney invoked the privilege on the President’s behalf, relying on a “communication from the president.” See 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 Jefferson was anything but ignorant of the proceedings and had raised privilege concerns in a letter to the attorney. See Vance , 591 U. S., at ___–___ (slip op., at 5–7). 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 “particular reasons” for withholding evidence. Burr , 25 F. Cas., at 192; see ante , at 12. 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 13. But Chief Justice Marshall nowhere suggested that the state secrets privilege should apply in this country without such a statement. See Vance , 591 U. S., at ___ (slip op., at 7). Nor did he guarantee that producing such a statement would automatically spell the end of the judicial inquiry, as JUSTICE THOMAS seems to suppose. See Burr , 25 F. Cas., at 192; Vance , 591 U. S., at ___ (slip op., at 7).¶

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 Executive may not judge its own case: “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” 345 U. S., at 9–10.¶

In this particular, our Nation broke from English practice. The Declaration of Independence did not endorse crown prerogatives 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 authorities. Our Founders knew from hard experience the “intolerable abuses” that flow 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 officials can sometimes be tempted to misuse claims of national security to shroud major abuses and even ordinary negligence from public view. In Korematsu v. United States , the President persuaded this Court to permit the forced internment of JapaneseAmerican citizens during World War II. 323 U. S. 214 (1944). The President did so in part by relying on a military report that insisted immediate action was imperative to national security. Id. , at 235–236 (Murphy, J., dissenting). The report, however, contained information executive officials knew to be false at the time. Yet it took decades before the government publicly acknowledged its misrepresentation to this Court. See Dept. of Justice, Archives, N. Katyal, Confessions 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¶

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 official accident report. The government invoked the state secrets privilege and filed 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 secretsonly 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 because this Court accepted the Executive’s declaration at face value.¶

More recent history bears its cautions too. The government invoked the state secrets privilege only 16 times between 1961 and 1980. See Brief for Public Citizen as Amicus Curiae 9. Yet it has done so at least 49 times between 2001 and 2021. See id. , at 9–10. What is more, the propriety of several of these assertions has been called into question. Id. , at 10–17 (collecting examples); see also id. , at 2124 (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 overclassification by the Executive Branch. See, e.g. ,¶

Brief for Public Citizen as Amicus Curiae 17–19. Officials who have served in the Executive Branch have estimated that between 50% and 90% of classified material does not merit that treatment. Id. , at 19–20. In 1996, the federal government made about 5.8 million classification decisions; by 2017, that number reached approximately 49 million. Compare Nat. Archives and Records Admin., Information Security Oversight Office, 2010 Report to the President 12, with Nat. Archives and Records Admin., Information Security Oversight Office, 2017 Report to the President 1–2. It seems the government once even classified a memo from one member of the Joint Chiefs of Staff to another discussing how too many documents were being classified. 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 classification standards are “so broadly drawn and loosely administered,” temptation enough exists for executive officials 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 fire by abdicating any pretense of an independent judicial inquiry into the propriety of a claim of privilege and extending instead “utmost deference” 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. 213214 (4th ed. Supp. 2021). And here the government’s burden is a good deal more forgiving. But I can also see why. The line Reynolds drew seeks to accommodate the separation of powers: It ensures that a congressional mandate to entertain a case or controversy will not be automatically frustrated. It guarantees a degree of independent judicial¶

------¶

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 11 (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 neither of these truisms answers the question when the state secrets privilege applies—let alone proves that a court should afford “utmost deference” 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 fact-finder.” 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 defined by principle.” J. Wigmore, Evidence §2192, pp. 64, 67 (3d ed. 1940).¶

review. Yet it also seeks to respect the Executive’s specially assigned constitutional responsibilities in the field 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 government’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 satisfied” that a reasonable danger of harm would flow from its productionand 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 scrutiny 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 flow from its production. 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 12 (citing Reynolds , 345 U. S., at 10–11).¶

Here again, I see a balance consistent with the Constitution’s design. A court persuaded that the government has met its burden by declaration may find the privilege properly invoked. But a court harboring questions must probe further 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 ); Classified Information 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 camera 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 defined 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 otherwise. As our cases explain, the trial simply “goes on” without 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 selfincrimination, attorney-client, or spousal—by suspending a party’s duty to provide privileged evidence but never prohibiting an opponent from seeking nonprivileged evidence or 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 confirm or deny a fact. But that executive interest does not extend to quashing suits that Congress has authorized the Judiciary to entertain—and that the Judiciary has a “virtually unflagging” duty to resolve. Colorado River Water Conservation Dist ., 424 U. S., at 817.¶

Admittedly, this Court has held that some contract disputes 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 allowing these cases to proceed would ''inevitably lead to the disclosure 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 without privileged evidence from the government. Still, none of that displaces the general rule that the privilege protects only against the production of certain evidencenot the inconvenience of lawsuits. If a way exists for a court to discharge 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 benefit of privileged proof. See, e.g. , H. M. S. Bellerophon , 44 LJR 5, 5–9 (Admlty. 1875).¶

Fourth, after the government properly invokes the privilege, 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 have used protective orders and other security procedures to allow sensitive governmental information to be sharedoptions Congress has borrowed and endorsed for use in cases arising under the Foreign Intelligence Surveillance Act of 1978 and the Classified 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 clearances to provide unclassified summaries to litigants who lack such clearances. See, e.g. , In re United States Dept. of Defense , 848 F. 2d 232, 234 (CADC 1988). Judges have worked with executive officials to craft nonprivileged substitute versions 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 congressionally authorized judicial proceeding may not be an appropriate remedy if valid executive interests can be fully protected 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 8–9. Instead, the majority insists that the only disagreement between us concerns “how th[e]se principles should apply to the specific discovery requests Zubaydah has made in this litigation.” Ibid. 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 confinement.¶

A¶

Start with the first 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 danger” of harm to national security would follow from sharing the information sought. Reynolds , 345 U. S., at 10. How 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 government. Still, the government insists, any evidence they supply would be widely understood as speaking for the Executive Branch. Brief for United States 26. (That premise I accept for argument’s sake.) And, the government continues, if the pair were asked to confirm or deny the existence of a black site in Poland, their answer could complicate efforts to secure assistance from foreign governments for future operations. Id. , at 27–28.¶

Even on its own terms, however, the government’s submission 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 confirm a widely known but not “officially” disclosed fact could pose a national security risk sufficient to justify withholding evidence. See ante , at 10–11. Hypothetically, as the Court explains, demanding 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 11 . The difficulty is, the government 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 harm to national security. The government’s only evidence is a declaration couched in conclusory terms, which the District 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 government’s declaration. The best the majority can say is this: The location of a CIA detention site in Poland qualifies as a “state secret” because “we have found nothing in the evidentiary record that casts doubt” on the declaration’s conclusory assertion that national security harms could follow from acknowledging its existence. Ante , at 12. But notice how this effectively reverses the burden of proof. The majority starts with the government’s conclusory assertionand then proceeds to place on Zubaydah the burden of disproving it. A bare expression of national security concern becomes reason 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 Reynolds , this Court has required a “reasonable,” not a speculative, 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 conclusory assertion of national security concerns—and if the burden 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 satisfied by the government’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 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 substantiate 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 another and maybe more fundamental one. Assume now with the government that confirming 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 discovery to proceed on that question. What about the Court of Appeals’ separate holding that Zubaydah is entitled to discovery about his interrogation, treatment, and conditions of confinement? 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 geography or Polish personnel. See Part I–C, supra . Recall, too, that even the government has conceded that “the enhanced interrogation techniques employed with respect to specific detainees in the program, and their conditions of confinement, are no longer classified.” 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¶

------¶

13 JUSTICE KAGAN does not join this portion of the principal opinion and instead appears largely to agree with us in what follows.¶

that “any response to Zubaydah’s discovery requests would inevitably tend to confirm or deny whether the CIA operated a detention site located in Poland.” Ante , at 17. Apparently, the plurality is concerned that, during the course of their testimony about Zubaydah’s treatment, Mitchell and Jessen might inadvertently disclose the location of their activities. See ibid . 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 authorityeven 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 accidentally 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 parties from their inadvertent disclosures. In prior detainee civil litigation, the government attended Mitchell’s and Jessen’s depositions and instructed them not to answer certain sensitive questions. See, e.g. , Brief for Respondents 78. 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 authorities or the public until the government has a chance to review 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 advance review procedures like these sufficient when it allowed Mitchell to publish a book about his involvement in the CIA’s interrogation program. It is unclear why they should be insufficient now. See Part I–B, supra .¶

On top of all that, the District Court might require Mitchell and Jessen to use code names or redact privileged information when supplying their evidence. The Senate Report 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 testified in prior civil litigation and before a military commission at Guantánamo Bay. Indeed, according to an amicus , the government even filed a motion in the military commission proceedings endorsing the practice. See Brief for Electronic Frontier Foundation as Amicus Curiae 23.¶

The plurality barely pauses to consider any of these safeguards against the government’s potential negligence. It acknowledges these “techniques have successfully prevented the disclosure of classified information in previous litigation on related subject matter.” Ante , at 17. But in a bare ipse dixit , the plurality asserts these same tools “would not be effective here.” Ibid . In failing to give careful consideration to potential safeguards that would allow this case to proceed, the plurality defies a central and consistent teaching of this Court’s state secrets jurisprudence—that executive claims of privilege in congressionally authorized proceedings are not to be reflexively accepted, and remedies short of dismissal must be preferred. See Part II–C, supra . The plurality confuses appropriate deference to the Executive’s predictive judgments about foreign affairs with inappropriate deference to the Executive’s concerns 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 to flip the script. Now, it contends that “much of [the] information” Zubaydah seeks “is already publicly available from other sources,” so “further judicial probing of the Government’s privilege claim” is unwarranted. Ante , at 16.¶

This submission faces its own problems. A litigant’s necessity 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 confirming 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 confirm 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 exists 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 record contains no comparable information about what happened “inside [his] cell” from December 2002 until September 2003. See Tr. of Oral Arg. 41. That, they say, is the primary 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 treatment. Letter from B. Fletcher, Acting Solicitor General, to 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 recently received a letter from the government. In it, the government says it will now allow Zubaydah to mail a document 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 16.¶

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 Zubaydah’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 government’s offer unmasks its emptiness. No one seems confident 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 whatever he produces “to a security review”—all without indicating what standards it will apply in that “review.” Government Letter 3. In the end, then, the government’s offer seems little more than an offer to let Zubaydah¶

------¶

14 Zubaydah’s lawyers represent that they do not know “whether and to what extent, after years of torture and solitary confinement, he can still reliably reconstruct this history.” Letter from D. Klein, Counsel for Respondent Abu Zubaydah, to S. Harris, Clerk of Court 2 (Oct. 25, 2021).¶

say whatever the government chooses to allow him to say.¶

Then there is this. In response to the government’s letter, 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 dismissing this case until we know whether and to what extent the government will make good on its late-blooming promise. Letter from D. Klein, Counsel for Respondent Abu Zubaydah, 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 confirm 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 filed by Zubaydah might avoid the problems” the plurality believes exist here. Ante , at 17. In other words, it seems that Zubaydah remains free to file a new lawsuit seeking information about his interrogation, treatment, and conditions of confinement as long as he does not ask for location information where his “need is not great.” Id., at 15, 17.¶

But what is the point of forcing Zubaydah to file a new lawsuit? Location information is only part of what the Court of Appeals permitted and Zubaydah seeks. Separately, the Court of Appeals allowed Zubaydah’s lawyers to inquire about his interrogation, treatment, and conditions of confinement. 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]aluable discovery may proceed without requiring [Mitchell and Jessen] to confirm 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 this case and insist on a new one. At worst, the delay may effectively deny Zubaydah congressionally authorized discovery 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 fiction 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 regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). 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 embarrassment 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 brutally—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 government’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.¶