Husayn v. United States, No. 18-35218 (9th Cir. 2019)
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Petitioner and his attorney filed an ex parte application for discovery pursuant to 28 U.S.C. 1782, which permits certain domestic discovery for use in foreign proceedings. The district court quashed the subpoenas after concluding that not all the discovery sought was subject to the state secrets privilege.
Although the Ninth Circuit agreed with the district court that certain information requested was not privileged because it was not a state secret that would pose an exceptionally grave risk to national security and that the government's assertion of the state secrets privilege was valid over much of the information requested, the panel held that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information. In this case, the underlying proceeding was a limited discovery request that could be managed by the district court. Accordingly, the panel remanded for further proceedings.
Court Description: State Secrets Privilege / Subpoena The panel reversed the district court’s order quashing a subpoena sought by Abu Zubaydah, who is currently held at the U.S. detention facility in the Guantanamo Bay Naval Base in Cuba, and his attorney (“Petitioners”), and dismissing the case in its entirety. Petitioners filed an ex parte application for discovery pursuant to 28 U.S.C. § 1782, and sought an order to subpoena James Elmer Mitchell and John Jessen for their depositions for use in an ongoing criminal investigation in Poland about the torture to which Abu Zubaydah was subjected in that country. The district court originally granted the discovery application, but subsequently quashed the subpoenas after the U.S. government intervened and asserted the state secrets privilege. The panel agreed with the district court that certain information requested was not privileged because it was not a state secret that would pose an exceptionally grave risk to national security. The panel agreed that the government’s assertion of the state secrets privilege was valid over much of the information requested. The panel concluded, however, that the district court erred in quashing the HUSAYN V. UNITED STATES 3 subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information. The panel remanded for further proceedings. Judge Gould dissented, and would affirm the district court. Judge Gould would defer to the view of then-CIA Director and current Secretary of State Michael Pompeo that the disclosure of secret information in this proceeding “reasonably could be expected to cause serious, and in many instances, exceptionally grave damage to U.S. national security.”
The court issued a subsequent related opinion or order on July 20, 2020.
The court issued a subsequent related opinion or order on April 25, 2022.
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