This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
The Court held that the state‑secrets privilege bars discovery of whether a CIA detention facility exists in Poland, precluding the government’s request for information from contractors Mitchell and Jessen.
Justice Kavanaugh filed a brief concurrence stating that Abu Zubaydah showed only a “dubious showing of necessity” for the discovery he seeks.
Justice Gorsuch authored a dissent arguing that the discovery could proceed without revealing the location of the alleged CIA site and citing 28 U.S.C. § 1782 as authority for foreign‑related discovery.
Background and question before the Court
After the September 11, 2001 attacks, the CIA believed Abu Zubaydah was a senior al Qaeda lieutenant with knowledge of future attacks against the United States.
The Government intervened and asserted the state‑secrets privilege to block Zubaydah’s discovery request.
Justice Thomas asked whether the two contractors had previously testified about detainee treatment.
According to Justice Kavanaugh, justice Kavanaugh questioned the constitutional versus common‑law nature of the privilege and whether Congress could alter it.
Justice Sotomayor asked whether the case should be analyzed under Reynolds (state‑secrets) or an intelligence‑law framework.
Justice Gorsuch asked whether the government bears the burden of proving the privilege.
- [1] 1b277d2a30d9759531aa-r1-b1cb893711d795c3.pdf, p. 2
- [2] 1b277d2a30d9759531aa-r1-b1cb893711d795c3.pdf, p. 2
- [3] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 6
- [4] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 29
- [5] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 32
- [6] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 36
What each side argues
United States Government
According to United States, the Government said it had provided a reasonable explanation why the proposed discovery could significantly harm national security.
Brian H. Fletcher (Respondent)
According to Brian H. Fletcher, fletcher argued that the nation’s covert intelligence partnerships depend on keeping relationships confidential.
According to Brian H. Fletcher, he said respondents seek discovery that would breach that trust by confirming or denying the existence of an alleged CIA facility in Poland, and that the request is not to vindicate U.S. rights but to aid a foreign (Polish) investigation.
According to Mr. Fletcher, he maintained that the executive’s national‑security judgment deserves deference, and if the court agrees that disclosure would harm national security, the evidence must not be disclosed.
According to Mr. Fletcher, he clarified that all communications by Abu Zubaydah could proceed subject to security screening, eliminating classified information.
Mr. Klein (Respondent)
According to Mr. Klein, klein stated that the Polish prosecutor already possesses information about the alleged CIA site, so U.S. discovery is unnecessary.
According to Mr. KLEIN, he explained that under Polish law Zubaydah has the right to act as a complainant and submit evidence to the prosecutor, with a right of appeal if the prosecution is declined.
What happened at oral argument
According to Justice Thomas, justice Thomas: “The two contractors have testified about the treatment of detainees before, right?”
According to Justice Kavanaugh, 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?”
According to Justice Sotomayor, justice Sotomayor: “Mr. Fletcher, should we be thinking about this as a Reynolds case or a – an Intel case?”
According to Justice Gorsuch, justice Gorsuch: “Mr. Fletcher, do we start on an agreed premise that the government bears the burden of proving the privilege up?”
According to Justice Thomas, justice Thomas: “Mr. Klein, you said that much of this has already been disclosed. If it has been, why do you need additional testimony?”
According to Justice Barrett, justice Barrett: “So you don’t need them for that?”
According to Justice Sotomayor, justice Sotomayor: “Mr. Klein, am I – I think I understand, because you’re held in Guantanamo, you’re not permitted to sign affidavits or give any testimony, correct?”
According to Justice Alito, justice Alito: “Can this whole thing be boiled down into much simpler terms? Is it correct that what you want in the – in the end is a more official link between what happened and Poland?”
Justice Alito: “Well, you know – you say you know what happened, and what you want to add is where it happened, right? That’s the link. That’s what this all boils down to.”
According to Justice Kagan, justice Kagan: “Does – does – is that in the end what your argument depends on, that we should treat the contractors differently from an employee? If – if these people were current employees, would your entire argument go up in smoke?”
According to Justice Gorsuch, justice Gorsuch: “Will the government make Petitioner available to testify as to his treatment during these dates?”
- [1] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 6
- [2] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 29
- [3] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 32
- [4] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 36
- [5] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 44
- [6] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 48
- [7] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 57
- [8] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 64
- [9] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 65
- [10] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 69
- [11] b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdf, p. 74
What the Court decided
The majority held that the state‑secrets privilege applies to the existence (or non‑existence) of a CIA facility in Poland and therefore precludes further discovery.
Justice Kavanaugh concurred, stating that Zubaydah has shown only a “dubious showing of necessity” for the discovery he seeks.
Justice Gorsuch dissented, arguing that the treatment of Zubaydah involved severe abuse, that discovery could proceed without confirming the location of the alleged CIA site, and that 28 U.S.C. § 1782 authorizes foreign‑related discovery.
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- 1b277d2a30d9759531aa-r1-b1cb893711d795c3.pdfopinion
- b09c61b6c7da6938b86d-r1-d242b06a673cdd97.pdforal argument transcript
Guide generated September 28, 2026. Automated validation accepted this version.