-- through june of 2022 to issue a ruling in this case and

respondents seek that discovery not to vindicate any rights under u.s. law but instead in a discretionary whose very purpose so reveal and president the alleged involvement of polish officials in convert cia

activities. the cia director explained. -- deference to that expert judgment and failed to do so because it made two fundamental legal errors. first the ninth circuit undertook its own inquiry into whether existence of the alleged facility was secret given public speculation. but under the court decision in reynolds the question isn't whether a court thinks the information is secret in some abstract sense it is whether compelled disclosure will harm the national security. that is question that squarely implicates the cia director's special knowledge and expertise. and here the cia director explained --. even the ninth circuit failed to recognize the force of that point and did not suggest respondents could have had the discovery they seek here from

the cia itself instead it held two former contracts could be healed to confirm or dee nigh the agency under oath because. how their compelled testimony would affect national security and the ninth circuit deferred to the cia director expert judgment that allies and adversaries. a breech of trust. i welcome to court's questions. >> the two contractors have testified about the treatment -- >> that is correct. >> why couldn't they also testify here? what difference would it make. >> a difference because of the critical difference between the context of the testimony and what they would be conveying. their testimony has focused on the nature of treatment of detainees on what was done. that was information executive

branch after extensive --. public scrutiny of the united states actions so that information is no longer classified but part and parcel of that declassification decision was decision to keep secret, keep the trust with our foreign partners and because this proceeding is all about revealing the involvement of foreign partners it is fundamentally different from the testimony that has been given in the past. >> you say you offer the utmost deference standard. how would the government fail that? >> candidly we think as this court has recognized in nixon and other cases implicating the executive branches judgment that on national security a court should be hesitant, executive branch on such judgments. >> are you saying -- >> no certainly not justice thomas but the circumstances where it could be --.

i could imagine one example court found -- d.c. circuit's decision in else berg where the court explained the executive branch declarations. seems a circumstance appropriate to say the executive haven't made the requisite showing. i think the court should be rereluctant here on core matters of national security. >> on this issue of appropriate level of deference, the question is, or one question is, what is the deference to. surely when the cia director says here are threats to national security interests, here is the harm to national security that we think will follow from something. that judgment is entitled to a great deal of deference. courts are going to know less about that than the cia director does as i understand the inquiry

in reynolds the way the process works is that judgment is weighed against something else, which it is question of the necessity. the requester has. and then there is the question of segregation in addition. and as to those matters i would think that visually no deference given to the cia director ad all. in other words a as to what level of necessity is at issue and how those two things are weighed and how the segregation analysis works. aren't those judgments for courts? >> i think i agree with you on those two points but i just want to make sure that we're in agreement the ninth circuit and respondents are advocating for deference dna other questions and --. sorts of people --. on the question if wore past that and the question is what's the level of necessity? i agree with you. i do think though that in reynolds the court suggested necessity goes not so much to do we, you know, give deference

to -- ultimately to the executive branch judgments about national security. it is how far should the court probe? i think the reynolds the court was focussed on should we examine in camera of class fied materials, maybe that is appropriate or not. the predicted national security judgments i think deserve deference no heart how great the showing of nessy? >> i'm a bit confused in this case because it seems to me that you came in i'm a bit confused in this case. it seems to me you came in to say no discovery whatsoever is appropriate. yet in your introduction you said that the terms of conditions of interrogative techniques is no longer secret. it seems to me at least that could be separated out in discovery. and there might be other things. i don't think we need to parse all of it in this case. but is it your position -- i'm

not quite sure what you're asking us to say. are you asking us to say the government is due a great deal of deference on whether a security threat would exist as a result of a disclosure? >> yes. >> or are you asking us to say a security threat will exist and we have to give deference to your judgment as opposed to the district court's judgment as to what will protect that or not? because at the end, this report has a lot of power under reynolds, to fashion remedies that will protect that interest. you might disagree as to a remedy, but that's different from lack of deference. that's an abuse of discretion standard by the district court. >> so let me start by the district court. i think the deference that should be afforded to district courts helps us here, because

the respondents, and you alluded to this in the beginning of your question, this possibility about why there cannot be testimony about what was done but somehow divorce it from express geographic references. the court rejected it and explained that because this entire proceeding is predicated on an assisting an investigation in poland by a polish prosecutor, it would be disingenuous to try to pretend it's not all about poland by using code words. i think actually on the question of the district court's management of the trial and on what methods of safeguards could be used to protect national security information, the judgment made by the district court here actually helps us. >> except i see the ninth circuit's majority opinion as basically not understanding why the district court felt that the

information couldn't be sent out and all it was doing was sending it back to the district court to explain it in more detail. i didn't read what you said in the district court's opinion. you may or may not be right. but i thought the ninth circuit was just unsure. so why shouldn't we spend it back for the clarity that have ruling? >> as to what the district court said, and this goes to the respondent's proposal about let the testimony proceed but use code words, the ninth circuit didn't really adopt it because what i understand respondents to be advocating now is, we don't need to mention poland at all expressly. the government is concerned about confirming or denying a facility in poland. >> i have a different question. you led your brief with the state secrets argument. but you do an alternative, as you did in your cert petition, that this was an abuse of discretion under 1782. >> correct. >> based almost on the same

theory, that it would be against u.s. interests, once you said that there was a state secret. but i think it's also because you had already denied the mlag. and that argument has some attractive force for me. it seems there was already a mechanism for the polish government to seek discovery. they invoked it. the government said no on state secrets. can you imagine a situation in which that denial shouldn't be enough for purposes of defeating a 1782? >> it's very hard for me to imagine one, justice sotomayor and respondents certainly haven't responded to one. i agree the two issues are very closely related, that in some ways the 1782 issue is on

certiori. >> your use of code words doesn't quite answer the question. that suggests they really are going to be talking about poland, they just won't say "poland." it seems to me there is a lot to talk about that has nothing to do with the actual location at which events occurred. why shouldn't the district court go through the testimony and say anything that looks like location, you can't get into, but what did you do with the petitioner, what was your relationship with other people? nothing about poland. why can't that be a way to proceed? >> mr. chief justice, that works in contexts like salim and in military commissions where there is no focus, no relevance to the location at all. what the district court found is you can't take the location out of this proceeding because the

whole point of the proceeding is to get evidence for a polish investigation. the evidence wouldn't be relevant unless it had occurred in poland. the very first sentence of the application, page 1-10-a, says we are seeking evidence to send to a prosecutor in polpoland. 12 of the 13 discovery requests specifically refer to poland. >> mr. fletcher, does that mean if there were a united states court it would be different and you wouldn't be asserting privilege over this material? the evidence of how he was treated and his torture. >> if it was a tort suit or a united states court where the location was irrelevant, then i doubt we would be asserting privilege. >> doesn't that mean that it's not that the information they say they want is itself privileged, it's something about the context which later creates a privilege, which seems odd, right? >> i guess i resist that a little bit because you have to look at all of the circumstances of the disclosure and here, my

assumption, in answering your question about in a different suit, you would completely divorce any geographic references from the testimony as was done in salim, as was done in the military submissions. here our basic submission is it's just not possible to do that because of the nature of the proceeding. but even if you are hesitant about that, i think there are a couple of other reasons to be resistant to this code word approach that respondents have advanced now. one of them is a concern that even the majority acknowledged, and that the judge highlighted in his dissent from the panel, which is that the purpose of his inquiry is to take evidence and ship it abroad to be used in a probe of alleged involvement by polish officials in the cia's covert activities. and even if that information appears denying in and of itself, the whole point of the inquiry is to match it up with other information, to shed further light on activities and identities that everyone agrees is privileged. i think that in and of itself is a serious concern, to indirectly accomplish what even the ninth

circuit and respondents are contesting that you can't do directly. >> the mosaic. >> the mosaic theory, exactly. the whole thing is about poland, i can't extricate that, the mosaic problem. the line of argument tries to leverage the government's past disclosures, first in the senate report and in the united states' own actions in cases like salim and use that to pry open the door and force the executive branch further than it's gone already. i think that's a dangerous thing to do. the executive branch drew a line that has been adhered to across three administrations, scrupulously protecting the identities of our foreign partners. to say because and of that information has been revealed that should allow respondents and others to leverage further disclosures that would implicate the concerns of our foreign partners, i think that's just a

dangerous thing to do. >> what if the foreign partners have no objection or in fact have confirmed the relationship themselves? >> so i think that would change the inquiry. i'm sure that something like that is a factor that the cia director or the other official would have to take into account in making the national security judgment in the first instance. i don't think it would completely eliminate the concern if the cia director here explained that the agency's relationships with its long intelligence partners are really generational relationships with those foreign intelligence agencies and that the sort of trust that those relationships rely on depends not just on what's happening now, today, but also on the assurance that we'll preserve confidentiality even if other parts of the foreign government later take a different view. >> you would go so far as to say that even if the polish government filed an amicus brief in this court saying, okay with us, that you would still be up here making this argument? >> i think i would make this argument only if the cia director had concluded under the circumstances, of which this

would be one, that there would be serious harm to national security if the disclosure went forward. what i'm doing, in candor, is telling you that some of the concerns that director pompeo has identified here might continue to apply in a scenario like that but the judgment would have to be made, you know, under all of the circumstances and certainly that one would be irrelevant. >> didn't the president of poland say something like that? >> the former respondents point to two press interviews by the former president of poland that in ambiguous terms acknowledged cooperation with the cia. so we don't deny those. but those statements contradict that former president's prior statements. and as the european court of human rights' decision that the parties explain, the government of poland itself denied cooperation in the program, refused to cooperate in the litigation, and i'm not aware of any change in poland's official position on that question. >> to go back to basics, forget the facts of this case.

i'm not saying what i'm about to say has anything to do with it. what's supposed to happen in the law if a person in a foreign -- in a domestic intelligence agency acts in a way that is absolutely, you know, beyond the pale? against american law, against international law, against anything in the world, all right? so they come in and say, no, we're not going to -- if someone brings a case, we don't want to give it to you, it will hurt the united states. well, it will, all right. so does the court have no way of getting such information? >> i think to begin with, i think the executive branch would take that very seriously. >> we assume -- let me assume for purposes purely of my hypothetical, but for purposes of my hypothetical, assume that the executive branch doesn't want this to get out. it's just a terrible thing, et cetera. i'm really interested in the power of the court. >> i think ultimately that would be a situation where the

colloquy i had with justice kagan would be relevant, where you had a party seeking information. there would be a strong showing of necessity. that authorize the court to probe, to say i want to know more to understand the basis of this assertion. ultimately our view would still be that the executive's national security judgment is subject to deference. and i understand that that's a harsh consequence, that was the consequence in reynolds itself, which was a tort suit against the united states for alleged malfeasance by the united states. i don't deny the harshness of the doctrine but i think that's inherent in the state secrets dock tin. >> suppose, mr. fletcher, there was overwhelming, essentially incontrovertible evidence that the acts here did take place in poland. suppose somebody had leaked videos that everybody had agreed

were authentic. you know, what then? >> so again, i think the answer would be, those would be additional circumstances that the cia director or whoever was making the judgment in the first instance would want to take into account and would have to explain in the declaration, explaining why further disclosure could still harm national security. again, in that circumstance there would be concerns. the cia director talked about there being a difference between what appears to be definitive proof and formal confirmation by people with knowledge of the subject. >> i understand the argument about our relationships with our allies and it not necessarily being co-extensive on the question of whether something is secret. at some point it becomes a little farcical, this idea of the assertion of a privilege. doesn't it? if everybody knows what you're asserting privilege on, what exactly does this privilege -- maybe we should rename it or something. it's not a state secrets

privilege anymore. >> i guess i would resist the idea, certainly that we're anywhere near the farcical zone here. this is a line, as i said, that the executive branch drew back in 2014, that it's adhered to ever since. the foreign countries that were involved in this program, none of them have come forward. all of them have viewed it as important to preserve the confidentiality of this information, notwithstanding all of the speculation that's out there, the amicus briefs recited here, much of which existed. you can posit greater and greater certitudes of public knowledge. but in this case the facts in the world and the evident importance that the political branches in the united states, that our partners abroad have put on preserving this confidentiality, confirms that there is something to it here, that there is a difference between what's out there in public now and confirmation or denial in an official sense. >> what is the current status of the proceeding in poland? >> i'm not sure exactly of the

status. i know respondents note in a footnote that one part of the investigation has been closed. what's in the record that i'm aware of are some reports that poland has provided to the echr about the status of its investigation, that basically say the investigation is ongoing, they note that they've sought information from the united states, but as justice sotomayor and i discussed, the united states has refused to provide it under the mlat because of national security concerns. but beyond that, i don't know the details of where things stand. >> who in the polish government can make a request under the mlat? >> the requests come through a central authority. each treaty partner has identified a central authority to pass along requests under the mlat. the requests originated with the regional prosecutor and were passed along by the central authority. >> so the regional prosecutor here, i assume, maybe this is incorrect, is a typical civil law system investigative

magistrate who is operating independently. it's not like someone in the department of justice in the united states who is ultimately answerable to the attorney general. it is not the government of poland in the same respect that a federal prosecutor in the united states would be exercising the authority of the government of the united states. >> i don't want to make representations but exactly how the polish system works. i think i can give you some details that confirms the thrust of your question, which is that even after the original prosecutor began sending the first of the mlats in 1979, the government of poland declined to release the polish president from his vows of secrecy, didn't cooperate with the investigation. i think what that tells you is whatever the inner workings of the polish system, the official position of poland isn't necessarily reflected in the mlat requests or the investigation. >> mr. fletcher. >> gentlemen, justice kavanaugh. >> to what extent is the

privilege a constitutional privilege and to what extent do you think the privilege is a common law privilege that could be altered by congress? >> i think this court hasn't had to answer that question. reynolds, which was the first recognition of the privilege, said that it was firmly rooted in the law of evidence and the common law evidence and it was, in subsequent cases like nixon and egan, the court has made clear the constitutional roots in the necessity to protect the nation and protect confidential information. i think it's both. as to the question what have congress can do to change the privilege, i certainly think congress can set forth mechanisms for asserting the privilege, if congress were to try to cut back on the core of the privilege recognized in reynolds, i think that would present the constitutional question suggested in egan and in nixon but that this court has never actually had to resolve. >> mr. fletcher, in salim, the

government was present in the suit trying to police the boundaries of the contractor's testimony and to ensure that things like location were not revealed. would that be possible in this proceeding? would the government be able to participate, let's say that we disagree with you and we say it's not privileged, at least insofar as we're talking about the treatment, at least insofar as we're talking about potential torture, does the government have a right to participate and make sure those safeguards are present? >> we do have the right to participate. all parties have assumed that would give us the right to be present and levy objections during discovery. to the extent your question suggests that participation would be sufficient in a proceeding like this one, i think it would run up against all the concerns we were talking about earlier with using code words and would inherently raise the risks of inadvertent disclosure or about piecing together the puzzle that are especially acute when you have

parties who have every incentive to probe right up to the line of privilege, which respondents do here. so i think to our view, that's reason enough to conclude that the state secrets privilege precludes further discovery. at a minimum, even if you don't get there, think it's high relevant to the consideration that justice sotomayor discussed under 1782 which is both this request circumvents the mlat mechanism and the express treaty and that it would be incredibly intrusive and burdensome to have discovery proceed in that fashion. >> thank you. justice thomas, anything further? >> mr. fletcher, should we be thinking about this as a reynolds case or an intel case? in my mind, your claim of state secrets really undermines the foundation of reynolds. so i'm hesitant to call it a

reynolds case. i think it's an intel case. >> we're content to have you think of it as either. in our view it's both, and they dovetail, as you and i discussed. if you are not willing to decide the privilege question all the way or to take it as far as we would take it, then i think a perfectly appropriate disposition would be to say that at a minimum, the circumvention of the mlat process and the intrusion and burdensome nature of the discovery that would have to happen and that would still carry risks of disclosing secret information -- >> even in intel, it's also the necessity, which is a question that i'm going to ask your adversary. >> you're right, exactly. and we're not talking about vindicating u.s. rights. we're talking about seeking evidence for a foreign proceeding which is categorically a lesser showing of necessity. >> thank you. >> justice kagan. >> again on this idea of using code words, given that petitioner was detained in two separate locations, isn't there a way of enabling this information to go forward

without saying, which of the two locations, you know, this treatment happened? so you're saying, well, everybody would know it's poland if there were such information about treatment. maybe not. with code words, it could be poland or it could be another location. >> justice kagan, my friend on the other side would have to speak to what it is they have in mind with this code words proposal. quite a lot of information about abu zubaydah's treatment is already in the report and has been made public. what i understand them to be seeking is, tell us what happened at detention site blue or tell us what happened between this date and this date where we believe he was in poland. that's what raises the concern for us, especially when the whole thing is premised on this notion that this is a proceeding to get evidence for use in a polish prosecution. the evidence wouldn't even be appropriate for disclosure unless it were relevant to polish prosecution.

>> i guess what i was suggesting is suppose the petitioner just said tell us what happened wherever, and didn't ask you to say anything about the location, whether it was the blue location or the green location. and then the petitioner had to come up with evidence on his own to satisfy the polish authorities that it was one rather than the other. but that nothing in his request to you and nothing in the government's response to that request suggested whether it was the blue location or the green location in which the relevant act took place. >> so i guess, again, not for me to say, it's not clear how much good that would actually do them. if you actually took both the code names and the dates out of it and just said what was done, i think that mitigates the concern that i had about the mosaic theory, to some extent, piecing together information in ways that would be damaging. i still don't think it avoids the fundamental problem that the district court identified, that at this late date, when this whole proceeding has been about poland from day one, line one of

the application, you can't just take it out of the case by not saying it out loud. i certainly acknowledge that does mitigate some of the concerns. >> justice gorsuch. >> mr. fletcher, do we start on an an agreed premise that the government bears the burden of proving the privilege up? >> under the standard of reynolds, yes. >> and any privilege can be waived, and the determination of the privilege's waiver, the scope of it, is a matter for the court? >> it's a matter of the court but i think the court in reynolds was very clear that this is a privilege that can only be waived by the government. >> sure, but you can't pick and choose what to waive, you waive by the subject matter, and it's determined by the court, not by the happenstance of the disclosing parties' choices. >> i know in a line of cases --

>> where they expressly rejected the idea? >> there's a doctrine known as official acknowledgement and the idea is the exception 1 doesn't apply and is not waived by related disclosures. we cite that in pages 30 to 34 of our brief. >> an assertion of secrecy, is it entitled to take into consideration the increased number of classifications -- increased classification of documents these days? >> i guess i'm not sure that

would be directly relevant. each authorization stands on its own. if the standard is met, that would be appropriate. >> how about assertion of the state secrets privilege, is that something the court can take into account? >> again, i'm not sure how that would be relevant for the inquiry. the question is, is this a threat to national security and has the executive branch established that under the standard of reynolds. >> irrelevant in your mind? >> i think so, your honor. >> how about if the facts are old? >> that's a circumstance that may be relevant to whether disclosure would affect national security, that would be something the court can take into account through the lens of deference. >> of course. >> of course, yes. >> the same thing with the extent of public knowledge. i assume you would agree that that one is also something that the district court can take account of. >> again, through the lens of -- >> through the lens of deference.

how about the nature of the allegation and the seriousness of it, an allegation of torture, is that something that the district court -- justice breyer touched on this, is that something the district court can take cognizance of? >> the way i can imagine it being relevant is potentially in the necessity inquiry. but i think the way that that would be relevant is not just about the seriousness of conduct at issue but what is the need that the party seeking the information has for it. so if you had a party that was asserting rights in u.s. courts, substantive legal rights in u.s. courts, the gravity of those rights might weigh into the necessity inquiry. here i understand the seriousness of the allegations about treatment. but i think the necessity inquiry and the necessity analysis looks very different because it's ultimately evidence for a proceeding, not rights under u.s. law. >> thank you. >> anything further, justice kavanaugh? >> no further questions. >> justice barrett? thank you, counsel.

mr. klein? >> mr. chief justice, and may it please the court, let me start by making one thing clear. i'm not planning to ask did it happen in poland. the polish prosecutor already has information about that and doesn't need u.s. discovery on the topic. what he does need to know is what happened inside abu zubaydah's cell between december 2002 and september 2003. i want to ask simple questions like how was abu zubaydah's fed? what was his medical condition? what was his cell like? and yes, was he tortured? these topics are declassified. the government has allowed mitchell and justman to testify about them publicly twice before. they testified about abu zubaydah's treatment in general

and at particular sites outside poland. they testified about another detainee's treatment at the polish site, identified by code name. they placed their testimony online. the government's briefs make no pretence that these topics are privileged. the remand directs the district court only to consider whether classified and declassified information can be separated. it does not require discovery. it leaves that to the district court. if the district court does allow discovery, then it can use the same tools it used in salim to protect state secrets. and yes, justice barrett, i do believe that the government would be in attendance just as it was in the salim case and would be able to object. it could enter an order limiting deposition topics. it could have depositions proceed under seal. and it can postpone answers to

any questions that draw objection until the court has ruled on them. poland would receive only a record approved by the court after appropriate objections and perhaps even another appeal. this is what courts do. and it's what they do well. it's the very judicial function this court and reynolds charged lower courts to carry out. now i welcome the court's questions. >> mr. klein, you said that much of this has already been disclosed. if it has been, why do you need additional testimony? >> well, frankly, what has been disclosed is not limited to a date range. so we know it's well publicized that abu zubaydah was tortured. in fact this is referenced in mr. mitchell's book and described in excruciating detail. he doesn't say that it was at a particular place or in a particular -- at times he says

in a particular time but he doesn't speak to our time frame. so the polish prosecutor has the information, as we understand it, has the information about when and where. he has made representations to the european court of human rights. they were a willing participant, by the way, in the european court of human rights. they represented they had interviewed 62 people to learn what they could about the site in poland and they represented that they had amassed 43 volumes of documents about it. and they appeared and made representations that they had conducted what they thought was an appropriate investigation. >> so how do you square that with how you started your argument, that you're not -- you seem to suggest that you are not interested in the location. but it seems as though you're looking for more information to

tie it to poland. >> well, i would say that we're not -- we no longer need information to tie it to poland. we know where abu zubaydah was. we want to establish how he was treated there. that is what we're looking for. so -- >> at that specific location? >> well, yes. the context is a particular location that has been established by the polish investigation as we understand it. >> one last question. how does helping a prosecutor in poland amount to the necessity that you would need under reynolds? >> well, under polish law, abu zubaydah has particular rights, frankly to stand as an accuser of those who have assaulted him. that's a feature of polish law. not only can he be a complainant

but he can submit evidence to the prosecutor and if the prosecutor declines to go forward with the prosecution, he has a right of appeal in poland as well. he can appeal to a court. so as a practical matter, in the way we conceive of it, he's more like a party. not that that would matter under 1782, because all it requires is that he be an interested person and not necessarily a litigant, as this court held in intel. >> counsel, i guess what i can't get past is similar to justice thomas' question. you say that it's not a secret that there is a back site in poland. you say it can't be a state secret if it's not a secret, that's well-established. and it's not a secret that he was tortured either. so it seems to me that if that's all you wanted to prove, by your own characterization of those facts, you don't really need them. and then in your answer to justice thomas you suggested that, no, what we really do need

is the testimony of the contractors to show that it happened in poland. but you've also conceded, i thought, that that testimony would be privileged. am i understanding you? >> no, not -- not really. i guess the way i would describe it, justice barrett, is we do need -- the testimony -- the existence of the back site has been established as a legal matter in the european courts. we believe that it's not a secret. that's a disputed question. >> so you don't need them for that. >> we don't -- we don't need it, if we adopt the protocol that was used in salim, and simply don't refer to the site by name. and for that matter it doesn't even have to be referred to by alter ego, like detention site blue, even though that's plastered across the record. >> if you don't need them to establish the existence of the site in poland and you don't need them to establish what

happened to him, the torture he underwent, what do you need them for? to show that it happened in poland, right? >> to show that it happened when he was in poland. >> and do you accept -- i kind of read your brief to accept that that particular piece of it would be privileged. am i misunderstanding that? >> no, we don't accept that. the ninth circuit court concluded that it's not a secret. >> but the fact that he was tortured by these contractors in poland, that's not a state secret? >> we're not necessarily -- well, i would say that that is not a state secret as well, that's correct, because the very fact of torture, the so-called enhanced interrogation techniques, are not a secret. they're declassified by the government. the fact that the site is in poland and that he was taken there was found by a court of law and also acknowledged by poland's president who said that

he approved it. so no, we don't -- we don't think that those facts are state secrets. the government's argument is that the confluence of those facts is somehow a state secret. and the government -- and what it really hinges on is this idea that i can ask the same question -- well, let me put it this way. suppose salim's lawyer asked, what happened to abu zubaydah on january 1st, 2003? that's not privileged. that's not a privileged question, because he's asking it in the context of a different proceeding. and questions like that were asked, by the way. but if i ask the same question for use by a polish prosecutor, asking, again -- forget about poland for a minute -- what happened to abu zubaydah on january 1, 2003? the government says that that is

privileged in that context and that context only. >> so could you ask him did you torture abu zubaydah in poland on this date? could you ask that question under your view of the privilege? >> under the ninth circuit -- >> under your view. >> we share the ninth circuit's view on this. the answer is yes. because the fact of poland itself is not secret. but from the very beginning, from the moment the government filed its motion to quash, we offered to amend rule 45 to allow the proceedings to go forward without mentioning poland. >> but it seems to me since all that is public and i'll end after this, it seems to me the only thing you gain is an acknowledgement by people who worked for the government that it happened. that's the piece that you're missing. it's kind of what the united

states' official involvement to be part of the record and you say that's not a state secret. >> we're not looking for the united states' official acknowledgement. what we look to gain is placing the torture in a particular time frame which the polish prosecutor has associated with abu zubaydah's presence. >> i guess i'm having trouble following exactly what it is you're looking for. and i don't think you're grappling with the point that justice barrett just raised, which is, everybody may know about this, you know, as you put it, it's not secret at all. but you don't have united states government acknowledging that. and the united states government says this is critically important because our friends, allies, intelligence sources around the world, have to believe that we keep our word and our word was this is secret. and so they may be -- the cia director may be the last person

in the world to have said this is where the site is, but that's what's important. what the united states has revealed, not what you find. you say you're not going to ask anything about poland. well then, why do you need the director of the cia and the united states government to agree with what you say you got enough proof on, that there was this site in poland? >> mr. chief justice, we don't need the director of the cia to agree with us. and in fact we don't need any cia employee to agree with us. >> then director -- you need the director not to acknowledge or to withdraw the, you know, assertion. you need somebody from the united states government to acknowledge the existence of this site, right? >> we need a court, this court, to acknowledge the rule of law

and determine whether the cia director's statement in paragraph 17 of his declaration, which is at the center of this, is well-taken. and this is what the ninth -- at the core of what the ninth circuit did in addressing what i call the attribution question. the cia director said we can't have it attributed officially to the cia that these things happened in poland, whether it's true or false. we can't acknowledge or deny it. and that was the important thing, all right? and in that paragraph, i think 134-a and 135-a, in that one paragraph, he uses the phrase "official acknowledgement" or "official confirmation" and its converse eight times. and he says, what's really crucial is not that the cia exposes a secret, but officially

acknowledges this nonsecret. because he was responding to the fact that poland's president had already acknowledged it. he said, but we're not. that's important, because what he's saying, what he's saying sub rosa, is this is not a secret but it's important that the cia not be heard officially to acknowledge it. >> is that what you want? you want them officially to -- >> no. >> you don't want that? >> no. we don't need that. >> all you want is to know what happened? >> we want -- exactly. we want -- >> okay. if it's exactly, why don't you ask abu zubaydah? why doesn't he testify? he was there. why doesn't he say, this is what happened? and they won't deny it, i mean, i don't think, if he's telling the truth. >> you're talking about metro. >> no, i'm not. the person who is there -- i don't know if he's your client, isn't he your client? >> abu zubaydah cannot testify.

>> why not? >> because he's being held in communeicado. >> why? why is he there? >> that's a question to put to the government. we don't know the answer. >> have you filed a habeas or something to get him out? >> there's been a habeas proceeding pending in dc for the last 14 years. there's been no action. >> they don't decide it? >> i'm sorry? >> you just let it sit there? i guess this is not relevant but i'm just curious. >> personally i'm not handling that proceeding. to my understanding we've done everything to move it forward but it simply has not moved forward. >> mr. klein, i think i understand. because you're held in guantanamo, you're not permitted to sign affidavits or give any

testimony, correct? >> that is correct. >> and so what you're saying to me is that you believe what's missing from the polish investigation is someone who actually -- that says, on this date, regardless of where it is, mr. zubaydah was tortured. >> that's right. >> and that goes to the government's mosaic theory, which is, and this is what you're disavowing, because it's not a state secret that he was tortured, the date he was tortured is not a state secret, the place may be, but he doesn't have to say the place. you will let the polish authorities prove that some other way. correct? >> if that's the way we're directed, if we're not allowed to utter the word "poland" in asking deposition questions,

absolutely. >> this goes directly to the government's point, which is, the state secret -- they're going further than state secret, because the torture is not a secret. that's been testified to in a variety of different places. what they're saying is, our state secret is we don't want the u.s. courts to assist poland in -- >> but that's -- >> -- in investigating what may or may not happen there even if the evidence here doesn't name poland. do i got this right? >> i think you do, justice sotomayor. i apologizing for interrupting a moment ago. i think that goes to the heart of it. we're not talking about a secret anymore. we're talking about a governmental wish, not to assist this polish investigation.

>> so that goes -- mine goes back to the mlat, which is, this is a government agreement with poland about what happens when a state secret is invoked. and both governments have agreed that when each side invokes a state secret, the other can say -- they can say no. aren't we ignoring that agreement between governments? you represent the polish government in this action. you're acting to help them. so why don't we view that or view this request as a request by the polish government? >> well, i'm representing abu zubaydah in this action. >> no, i understand. but you're doing it to assist the polish investigation. >> well, i would say the polish investigation is looking after

abu zubaydah's interests, not the other way around. abu zubaydah -- >> but it doesn't act on behalf of him. it acts on behalf of the state, of the nation, poland. >> i would agree with that. but the polish government did not direct abu zubaydah to pursue this claim. that was initiated -- that was initiated by his counsel in europe, filing a complaint. it's abu zubaydah's interests we represent. he is a private individual. he is certainly not the polish government. he was not given direction by the polish government. when the mlats were denied for the seventh time, yes, the prosecutor did say, as i understand it, not having been there myself, said to the polish lawyer for abu zubaydah, i don't have anything, you have rights under the law, why don't you submit something.

and so that was a self-initiated act, that was not an instance of the polish prosecutor saying go file a 1782 request and see what comes of it. that's not why we were there. >> mr. klein, i may just not be understanding this. but when you say it's not a secret, i mean, there are several things that aren't secrets. there's plenty of evidence that the petitioner was tortured in some location. but is there in fact evidence that he was tortured in the dates that you are trying to establish that he was tortured in? in other words, i thought that the senate report actually talks a good deal about the petitioner's -- that the torture -- that the petitioner was subject to, but at an earlier date. and what you need to continue on with this investigation is essentially some evidence that that treatment was continued at

a later date, the date in which you say he was in poland. and that is not in the public record, am i right about that? >> you're basically right about that, yes. there are hints of it. and what i would point to in particular, in the guantanamo proceedings, before the military commissions, when mitchell testified, he said -- and this is a thin reed, i will acknowledge, but he said that abu zubaydah was treated very shabbily when he was held in poland. and there was no lawyer there to represent abu zubaydah's interests at the time. it was sheik mohammed's trial. so there was no one to follow up on that question or with an interest to follow up on that question on behalf of abu zubaydah. but having read mitchell's book, i can tell you that that's a lingo, that's a language that he

tends to use to describe much more serious treatment, just as the term "enhanced interrogation" -- >> the government is here to tell us that, look, they've conceded that abu zubaydah was tortured, but because of relations with allies, with cooperating intelligence services, they won't say where it happened. and you're here saying, i need to know when it happened, and to know when it happened, the government would essentially be saying where it happened too. and that's the problem. >> so mitchell and jesson have testified before when things happened, just not these particular things. by the way, it's important to understand that the ninth circuit order, you know, the government helpfully has placed our subpoena, documentary subpoena at the back of their reply brief. most of those requests were denied by the ninth circuit.

and among the things that were denied was a request to establish the identities of polish nationals and contractual relationships between the united states and the polish government in respect to the enhanced interrogation techniques. we haven't appealed that. we never appealed that. so that's not before the court. and that's important because it underscores that the ninth circuit did distinguish between what it perceived to be secret and what it perceived not to be secret. >> can this whole thing be boiled down into much simpler terms? is it correct that what you want in the end is a more official link between what happened and poland? >> i wouldn't -- no, i wouldn't say a more official link. we're looking for --

>> all right. what you want is a link between what happened and poland. >> we're looking for eyewitness testimony. to the polish prosecutor, the site is a black box. he knows it's there, he can't look inside it. i want to shine a light inside it to know what was there. that's my sole role. >> you want to know where it happened, that's the link. you want to do it indirectly, you think you can do it indirectly. this will be a contributing piece of evidence that will enable you to show more confidently than you can right now where it happened. >> justice alito, i think the way i would put it, the where and the when are already known. but not the what. i would put it this way. you know, the government has argued that there is sort of a

relevance issue. i would say, though, that the links to the site are already there. we're not trying to -- you know, there may be information that the polish authorities have that the government would not like them to have now. >> the subtlety of this is somehow escaping me. you claim you have everything and yet you have a need for this additional information. it does seem to me all you want is a more official link from these government contractors that what you say happened occurred in poland and not in some other location. otherwise i don't see what need you have for any of what you're asking for. >> with your indulgence, let me offer a hypothetical, maybe that would help focus this a little bit. imagine there's a murder on the orient express, all right? the train passes through many countries on the way to its ultimate destination.

the prosecutor in budapest has determined already that the murder happened on the train in hungary. maybe the passenger got on the plane -- on the train in hungary in the first place and was dead before he reached the border. so he's established that. there's an american on the train who is an eyewitness, okay? the prosecutor just needs to ask him what did you see. and that's clearly relevant. it's clearly useful. and it doesn't -- he doesn't even need to answer where were you. the american doesn't even have to know he was in hungary at the time it happened. >> i'm not sure how that helps you. so what did he see, like who did he see stab this person or shoot this person? that's what you want? you want to know who in poland did the things that you claim happened? >> no, we've been prohibited by

the ninth circuit from asking that question. the prosecutor has what he has. we're simply trying to supplement information he already has with information that is acknowledged to be not privileged. >> and if the american were in an american court, he could invoke his fifth amendment rights against self-incrimination, right? >> and he could do that here as well. all the testimony -- >> it seems to me, to play out your hypothetical, that's exactly what the american government is saying. i'm not going to say anything about what i saw in hungary because that might incriminate me. it might be associated with me. and that would be a breach of faith with our allies and friends around the world. >> well, the breach of faith would be if we were identifying the individuals involved. the polish government qua government has asked for this information. the prosecutor was essentially appointed, it was a warsaw

prosecutor and it was transferred. so it's not correct to say that the u.s. government would be admitting anything. if you look at director pompeo's affidavit, he cites the fits gibbons case. that case and every case cited on both sides of the attribution issue, they're all foia cases. they all say unless it's a current employee of the agency in question, that's not an official confirmation of anything. >> is that in the end what your argument depends on, that we should treat the contractors differently from an employee? if these people were current employees, would your entire argument go up in smoke? >> i think the answer might be different in those circumstances. but i don't think it's the only route for us. again, it's the confluence. it's the combination of what they would be saying and who

they are. a u.s. government employee -- the cia director could certainly testify himself about declassified information, all other things being equal. we're talking about information that's declassified. >> and when you say this is relevant, is it the question of past versus present or is it the question of contractor versus employee? >> i think they're both factors. in this case they're at two removes. they can't speak for the government. they were never agents for the government. they were never employed by the government. they were never given authorities to speak for the government. >> and if i think that it would not make a lot of sense in this context to distinguish between contractors and employees, because our foreign allies are not distinguishing in that way, they knew these two men as the architects of this program, whether they were employees or

contractors seems pretty irrelevant to anything. and certainly irrelevant to our foreign allies. then what? >> well, i'm -- two answers to that. first of all, even if that were the court's view in the end with respect to them, it would still be a question of whether there was a secret at all. can they testify about nonsecrets? is context enough to change declassified information into classified information? if i turned around tomorrow and i were deposing them in an entirely different case and asked the same questions, would they -- would it somehow become nonprivileged? it's already declassified. so, you know, that's point one. but point two, again, reynolds requires that the director of the cia or the head of whatever agency it is that is at issue,

it requires that he personally review and he personal state his considered reasons for invoking the privilege. and he stated his reasons in writing here. and they were exceedingly narrow. he said the government itself cannot be heard to officially admit or deny certain facts. officially. and that's not what he would be doing here. thank you. >> thank you, counsel. justice thomas? justice sotomayor? justice gorsuch? justice kavanaugh, anything further? >> nothing further. >> justice barrett? no? thank you, counsel. rebuttal, counsel? >> thank you, mr. chief justice. >> mr. fletcher, i don't want to interrupt you later so i'll just do it up front. why not make the witness

available? what is the government's objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind? >> by the witness you mean abu zubaydah? >> right. >> so i was going to address this point. it goes to justice breyer's question about the conditions of his confinement right now. he is not being held in commune caddo. he is subject to the same conditions as other detainees at guantanamo. he is subject to security screening for classified information and other risks. he's able to -- >> that's not really answering my question, i don't think, because i understand there are all sorts of protocols that may or may not, in the government's view, prohibit him from testifying. but i'm asking much more directly, will the government make the petitioner available to testify on this subject? >> we would allow him to communicate about this subject

under the same terms as on anything else. >> the same terms, but i don't understand why he's still there after 14 years, it's a little hard to give -- but assuming that isn't in this case, why not do what justice gorsuch says? just says, hey, you want to ask what happened, ask him what happened. >> so because the detainees at guantanamo are all subject to a regime, a protective order -- >> i understand there are all sorts of rules and protective orders. i'm aware of that. i'm asking much more directly. i would appreciate a straight answer to this. will the government make petitioner available to testify as to his treatment during these dates? >> i cannot offer that now because that's a request that has not been made and so we have not taken that back to the folks at dod and guantanamo. >> this case has been litigated for years and all the way up to the united states supreme court and you haven't considered whether that's an off-ramp that

the government could provide that would obviate the need for any of this? >> justice gorsuch, we considered the request that was put before the district court in the ninth circuit under 1782. our position is he can communicate, which would include classified information. >> which takes us back to where we are. it doesn't answer the question. i guess will the government at least commit to answering -- informing this court court whett will or will not allow the petitioner to testify as to his treatment during these dates. >> if the court would like a direct answer to that question, of course. >> i personally would appreciate a direct answer to that question. >> secret privilege to the testimony. inherent in the question is are you going to let him testify as to what happened to him those dates. >> and i think the -- we would invoke the state secret's

privilege always, only over specific information, but i would tell you that whatever he proposes to do, we would want to apply the same sorts of screening we're applying here to make sure classified information is not released. >> i want i think justice gorsuch and correct me if i'm wrong, we want a clear answer, are you going to permit him to testify as to what happened to him those dates without invoking a state secret or other privilege? yes or no, that's all we're looking for. >> mr. fletcher you are here representing the government of the united states in a certain capacity. what do you understand to be the scope of your authority, as you stand before us here? >> to represent the legal position of the united states but in doing that, it's important to me, as it always is to make sure that i'm

representing my clients with full consultation of what's being put before them. >> to represent the interests of the united states with respect to what? >> with respect to all matters, here the matter the directly relevant are -- >> i would it would be respect to this litigation. >> correct, i'm sorry, justice alito, that's a better way to put it. because this is not an issue that has been in the litigation up until now, i'm not prepared to make representations for the united states, especially on matters of national security. justice gorsuch, i understand your question, we have to respond. justice breyer, you also asked questions to wrap up a few details, you asked about litigation. he has a pending motion for release, does change the authority to detain him. i believe the government is filing a sur reply on that question tomorrow. that's an active litigation in his habeous proceeding.

justice kagan, you asked a question about -- >> please continue. >> when this issue report says that enhanced interrogation techniques stopped. the testimony from the military commissions that my friend referred you to is foot photo15 -- footnote. but that he was treated more shabbily than necessary, and that's all that there is on that point. >> one other -- finish your rebuttal. >> mr. chief justice, i was just going to say, i wanted to close where i began and where justice kagan ended questioning of my friend that i think everyone acknowledges the importance of trust in covert relationships. really what the case comes down to is the 9th circuit holding, testimony from the two contractors would not breach that trust because they are contractors, and for the reasons justice kagan and i identified, they were integral to the

program, what they learned in the cia, they would be doing so in a proceeding designed to prosecute our alleged allies abroad, that would be viewed as a serious breach of trust. >> justice kavanaugh. >> mr. fletcher is following up on justice breyer's question, is the united states engaged in aulf against al qaeda and related terrorist organizations. >> that is the government's position f notwithstanding the withdrawal of troops, we continue to be engaged in hostilities with al qaeda, and the detentionearing is an hour 5

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