(Slip Opinion)
`
`OCTOBER TERM, 2021
`
`Syllabus
`
`1
`
`NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`being done in connection with this case, at the time the opinion is issued.
`The syllabus constitutes no part of the opinion of the Court but has been
`prepared by the Reporter of Decisions for the convenience of the reader.
`See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`SUPREME COURT OF THE UNITED STATES
`
`Syllabus
`
`UNITED STATES v. HUSAYN, AKA ZUBAYDAH, ET AL.
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`THE NINTH CIRCUIT
`No. 20–827. Argued October 6, 2021—Decided March 3, 2022
`In the aftermath of the September 11, 2001, terrorist attacks, the Cen-
`tral Intelligence Agency believed that Abu Zubaydah was a senior al
`Qaeda lieutenant likely to possess knowledge of future attacks against
`the United States. Zubaydah—currently a detainee at the Guantá-
`namo Bay Naval Base—says that in 2002 and 2003 he was held at a
`CIA detention site in Poland, where he was subjected to “enhanced in-
`terrogation” techniques. In 2010, Zubaydah filed a criminal complaint
`in Poland, seeking to hold accountable any Polish nationals involved
`in his alleged mistreatment at the CIA site ostensibly located in that
`country. The United States denied multiple requests by Polish prose-
`cutors for information related to Zubaydah’s claim on the ground that
`providing such
`information would threaten national security.
`Zubaydah filed a discovery application pursuant to 28 U. S. C. §1782,
`which permits district courts to order production of testimony or docu-
`ments “for use in a proceeding in a foreign . . . tribunal.” Zubaydah
`asked for permission to serve two former CIA contractors with subpoe-
`nas requesting information regarding the alleged CIA detention facil-
`ity in Poland and Zubaydah’s treatment there. The Government inter-
`vened and asserted the state secrets privilege in opposition to
`Zubaydah’s discovery request.
` The District Court rejected the Government’s claim that merely con-
`firming that a detention site was operated in Poland would threaten
`national security.
` The District Court nevertheless dismissed
`Zubaydah’s discovery application. It concluded that the state secrets
`privilege applied to operational details concerning the CIA’s coopera-
`tion with a foreign government, and that meaningful discovery could
`not proceed without disclosing privileged information. On appeal, the
`
`
`
`

`

`2
`
`
`UNITED STATES v. ZUBAYDAH
`
`Syllabus
`Ninth Circuit agreed with the District Court that much of the infor-
`mation sought by Zubaydah was protected from disclosure by the state
`secrets privilege, but the panel majority concluded that the District
`Court had erred when it dismissed the case. It believed that the state
`secrets privilege did not apply to publicly known information. The
`panel majority also concluded that because the CIA contractors were
`private parties and not Government agents, they could not confirm or
`deny anything on the Government’s behalf. Given these holdings, the
`panel majority determined that discovery into three topics could con-
`tinue: the existence of a CIA detention facility in Poland, the conditions
`of confinement and interrogation at that facility, and Zubaydah’s treat-
`ment at that location.
`Held: The judgment is reversed, and the case is remanded.
`938 F. 3d 1123, reversed and remanded.
` JUSTICE BREYER delivered the opinion of the Court with respect to
`all but Parts II–B–2 and III, concluding that, in the context of
`Zubaydah’s §1782 discovery application, the Court of Appeals erred in
`holding that the state secrets privilege did not apply to information
`that could confirm or deny the existence of a CIA detention site in Po-
`land. Pp. 7–13, 14–15, 18.
`
`(a) The state secrets privilege permits the Government to prevent
`disclosure of information when that disclosure would harm national
`security interests. United States v. Reynolds, 345 U. S. 1, 10–11. To
`assert the privilege, the Government must submit to the court a “for-
`mal claim of privilege, lodged by the head of the department which has
`control over the matter.” Id., at 7–8. “The court itself must determine
`whether the circumstances are appropriate for the claim of privilege.”
`Id., at 8. However, in making that determination, a court should ex-
`ercise its traditional “reluctan[ce] to intrude upon the authority of the
`Executive in military and national security affairs,” Department of
`Navy v. Egan, 484 U. S. 518, 530. If the Government has offered a
`valid reason for invoking the privilege, “the showing of necessity” by
`the party seeking disclosure of the ostensibly privileged information
`will “determine how far the court should probe in satisfying itself that
`the occasion for invoking the privilege is appropriate.” Reynolds, 345
`U. S., at 11. The narrow evidentiary dispute before the Court asks how
`these principles apply to Zubaydah’s specific discovery requests.
`Pp. 7–9.
`
`(b) In certain circumstances, the Government may assert the state
`secrets privilege to bar the confirmation or denial of information that
`has entered the public domain through unofficial sources. Here, the
`information held by the Ninth Circuit to be nonprivileged would nec-
`essarily tend to confirm (or deny) that the CIA maintained a detention
`site in Poland. The Government has shown that such information—
`
`

`

`
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`Cite as: 595 U. S. ____ (2022)
`
`Syllabus
`
`3
`
`even if already made public through unofficial sources—could signifi-
`cantly harm national security. The CIA Director stated in his declara-
`tion that “clandestine” relationships with foreign intelligence services
`are “critical” and “based on mutual trust that the classified existence
`and nature of the relationship will not be disclosed.” App. to Pet. for
`Cert. 135a–136a. Given the nature of Zubaydah’s specific discovery
`requests there is a reasonable danger that in this case a former CIA
`insider’s confirmation of confidential cooperation between the CIA and
`a foreign intelligence service could badly damage the CIA’s clandestine
`relationships with foreign authorities. Pp. 9–13.
`
`(c) The CIA contractors’ confirmation (or denial) of the information
`Zubaydah seeks would be tantamount to disclosure by the CIA itself.
`The contractors worked directly for the CIA and had a central role in
`the events in question. The CIA Director describes the harm that
`would result from the contractors responding to the subpoenas, not the
`risks of a response from the CIA (or any other CIA official or employee).
`Pp. 14–15.
`
`(d) Zubaydah’s need for location information is not great, perhaps
`close to nonexistent. At oral argument, he suggested that he did not
`seek confirmation of the detention site’s Polish location so much as he
`sought information about what had happened there. P. 15.
`
`(e) Here, the state secrets privilege applies to the existence (or non-
`existence) of a CIA facility in Poland, and therefore precludes further
`discovery into all three categories of information the Ninth Circuit con-
`cluded to be nonprivileged. P. 15.
`
`(f) This case is remanded with instructions to dismiss Zubaydah’s
`current application for discovery under §1782. P. 18.
` BREYER, J., delivered the opinion of the Court, except as to Parts II–
`B–2 and III. ROBERTS, C. J., joined that opinion in full, KAVANAUGH and
`BARRETT, JJ., joined as to all but Part II–B–2, KAGAN, J., joined as to all
`but Parts III and IV and the judgment of dismissal, and THOMAS and
`ALITO, JJ., joined Part IV. THOMAS, J., filed an opinion concurring in
`part and concurring in the judgment, in which ALITO, J., joined. KA-
`VANAUGH, J., filed an opinion concurring in part, in which BARRETT, J.,
`joined. KAGAN, J., filed an opinion concurring in part and dissenting in
`part. GORSUCH, J., filed a dissenting opinion, in which SOTOMAYOR, J.,
`joined.
`
`

`

`
`
`Cite as: 595 U. S. ____ (2022)
`
`Opinion of the Court
`
`1
`
`NOTICE: This opinion is subject to formal revision before publication in the
`preliminary print of the United States Reports. Readers are requested to
`notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`ington, D. C. 20543, of any typographical or other formal errors, in order that
`corrections may be made before the preliminary print goes to press.
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`No. 20–827
`_________________
`UNITED STATES, PETITIONER v. ZAYN AL-ABIDIN
`MUHAMMAD HUSAYN, AKA ABU ZUBAYDAH, ET AL.
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`APPEALS FOR THE NINTH CIRCUIT
`[March 3, 2022]
` JUSTICE BREYER delivered the opinion of the Court, ex-
`cept as to Parts II–B–2 and III.*
` Abu Zubaydah, a detainee in the Guantánamo Bay Naval
`Base, and his attorney filed an ex parte 28 U. S. C. §1782
`motion in Federal District Court seeking to subpoena two
`former Central Intelligence Agency contractors. Zubaydah
`sought to obtain information (for use in Polish litigation)
`about his treatment in 2002 and 2003 at a CIA detention
`site, which Zubaydah says was located in Poland. See 28
`U. S. C. §1782 (permitting district courts to order produc-
`tion of testimony or documents “for use in a proceeding in a
`foreign . . . tribunal”). The Government intervened. It
`moved to quash the subpoenas based on the state secrets
`privilege. That privilege allows the Government to bar the
`disclosure of information that, were it revealed, would harm
`national security. United States v. Reynolds, 345 U. S. 1,
`6–7 (1953).
` The Court of Appeals for the Ninth Circuit mostly ac-
`cepted the Government’s claim of privilege. Husayn v.
`——————
`*JUSTICE KAGAN joins all but Parts III and IV of this opinion and the
`judgment of dismissal.
`
`

`

`2
`
`
`UNITED STATES v. ZUBAYDAH
`
`Opinion of the Court
`Mitchell, 938 F. 3d 1123, 1134 (2019). But it concluded that
`the privilege did not cover information about the location of
`the detention site, which Zubaydah alleges to have been in
`Poland. Ibid. The Court of Appeals believed that the site’s
`location had already been publicly disclosed and that the
`state secrets privilege did not bar disclosure of information
`that was no longer secret (and which, in any event, was be-
`ing sought from private parties). Id., at 1132–1133. The
`Government argues that the privilege should apply because
`Zubaydah’s discovery request could force former CIA con-
`tractors to confirm the location of the detention site and
`that confirmation would itself significantly harm national
`security interests. In our view, the Government has pro-
`vided sufficient support for its claim of harm to warrant ap-
`plication of the privilege. We reverse the Ninth Circuit’s
`contrary holding.
`
`I
`A
` For present purposes, we can assume the following: In
`the aftermath of the September 11, 2001, terrorist attacks,
`the CIA believed that Zubaydah was a senior al Qaeda lieu-
`tenant likely to possess knowledge of future attacks against
`the United States. S. Rep. No. 288, 113th Cong., 2d Sess.,
`p. 21, and n. 60 (2014) (SSCI Report). In March 2002,
`Zubaydah was captured by Pakistani government officials
`working with the CIA. Id., at 21. The CIA then transferred
`him to a detention site that some sources allege was located
`in Thailand. Id., at 22–23; see also 3 Record 552.
` Zubaydah remained at this location for several months.
`SSCI Report 22, 67. During that time he was subjected to
`what the Government then called “enhanced interrogation”
`techniques, including waterboarding, stress positions,
`cramped confinement, and sleep deprivation. Id., at 40–41.
`The Government has since concluded that this treatment
`constituted torture. See Press Conference by the President,
`
`

`

`
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`3
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`Cite as: 595 U. S. ____ (2022)
`
`Opinion of the Court
`Office of the Press Secretary, Aug. 1, 2014, https://
`obamawhitehouse.archives.gov/the-press-office/2014/08/01/
`press-conference-president.
` In December 2002, the CIA transferred Zubaydah to a
`different detention site—the site at issue here. SSCI Re-
`port 67. The CIA has never confirmed its location, but
`Zubaydah and many others believe it was in Poland.
` In September 2006, the Government transferred
`Zubaydah to its detention facility at the Guantánamo Bay
`Naval Base. 3 Record 583. He has been detained in Guan-
`tánamo Bay ever since. 938 F. 3d, at 1125.
` Some of this information and related details have ap-
`peared in various publicly-available documents, including:
`• The almost-500 page Executive Summary of a Senate
`Select Committee on Intelligence Report concerning
`the CIA’s use of “enhanced interrogation” techniques.
`See generally SSCI Report.
`• The European Court of Human Rights’ findings con-
`cerning Zubaydah’s treatment, which that court con-
`cluded had taken place in Poland. 3 Record 382–607.
`• Testimony given by James Mitchell and John Jessen,
`the former CIA contractors who are the targets of
`Zubaydah’s subpoenas and who designed and imple-
`mented the CIA’s post-September 11 enhanced-
`interrogation program. Id., at 106–149; Tr. in United
`States v. Khalid Shaikh Mohammad, et al. (Jan. 21–31,
`2020).
`• Mitchell’s memoir of his involvement with the CIA’s en-
`hanced-interrogation program. See generally J. Mitch-
`ell & B. Harlow, Enhanced Interrogation: Inside the
`Minds and Motives of the Islamic Terrorists Trying to
`Destroy America (2016).
` Some of these and other publicly available sources say
`that, in 2002 and 2003, Zubaydah was detained at a CIA
`
`

`

`4
`
`
`UNITED STATES v. ZUBAYDAH
`
`Opinion of the Court
`facility in Poland. But, the Government states, the CIA it-
`self has never confirmed that one or more of its clandestine
`detention sites was located in any specific foreign country.
`App. to Pet. for Cert. 134a. Neither, as far as we can tell
`from the record, have the contractors Mitchell and Jessen
`named the specific foreign countries in which CIA detention
`sites were located. Rather, they (like the SSCI Report) have
`used code names to refer to the locations where Zubaydah
`was held. See, e.g., SSCI Report 62; Tr. in United States v.
`Khalid Shaikh Mohammad, et al. (Jan. 21, 2020), at 30190.
`Finally, although at least one former Polish government of-
`ficial has stated that Poland cooperated with the CIA, to our
`knowledge, the Polish government itself has never con-
`firmed such allegations. 3 Record 472.
`B
`1
` In 2010, lawyers representing Zubaydah filed a criminal
`complaint in Poland asking prosecutors there to hold ac-
`countable any Polish nationals who were involved in his al-
`leged mistreatment in that country. 938 F. 3d, at 1127. In-
`voking a Mutual Legal Assistance Treaty, the Polish
`prosecutors asked American authorities for information.
`3 Record 441. The United States Department of Justice re-
`fused their request on the ground that providing the infor-
`mation would adversely affect our national security. Id.,
`at 444; see also App. to Brief for Petitioner 4a. The Polish
`investigation closed without prosecutions. 938 F. 3d, at
`1127.
` In 2015, the European Court of Human Rights considered
`the matter. It concluded that the CIA had held and tor-
`tured Zubaydah at a site located in Poland. 3 Record 558.
`It also stated that Poland had failed adequately to investi-
`gate the human rights violations that the court believed
`had occurred on Polish soil. Id., at 581.
`
`

`

`
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`5
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`Cite as: 595 U. S. ____ (2022)
`
`Opinion of the Court
` In response, the Polish prosecutors reopened their inves-
`tigation. 938 F. 3d, at 1128. They again requested infor-
`mation from the United States under the Mutual Legal As-
`sistance Treaty, and the United States again denied their
`requests. Ibid.; see also 3 Record 632–633. At that point,
`the Polish prosecutors invited Zubaydah’s lawyers to sub-
`mit evidence that would aid their investigation.
`2
` Soon afterward, Zubaydah (and his lawyer) filed the ex
`parte 28 U. S. C. §1782 discovery application now before us.
`938 F. 3d, at 1128. Section 1782 says that a district court
`may order a person in its district to provide testimony or
`documents “for use in a proceeding in a foreign . . . tribunal,
`including criminal investigations conducted before formal
`accusation.” Zubaydah asked for permission to serve the
`contractors, Mitchell and Jessen, with subpoenas com-
`manding them to appear for depositions and to produce
`“documents, memoranda and correspondence” regarding an
`alleged CIA detention facility in Poland and Zubaydah’s
`treatment there. The Appendix, infra, at 19–20, lists
`Zubaydah’s document requests. Twelve of Zubaydah’s thir-
`teen document requests referred to Poland, and 10 specifi-
`cally requested documents “concerning” an alleged CIA de-
`tention facility located in Stare Kiejkuty, Poland. Ibid. The
`District Court granted Zubaydah’s request. App. to Pet. for
`Cert. 70a.
` The Government intervened. 938 F. 3d, at 1129. Sec-
`tion 1782(a) provides that a “person may not be compelled
`to give his testimony or statement or to produce a document
`or other thing in violation of any legally applicable privi-
`lege.” The Government claimed that disclosure of the infor-
`mation Zubaydah sought would violate the state secrets
`privilege. 938 F. 3d, at 1129. It asked the court to quash
`the subpoenas. Ibid.
` To support its privilege claim, the Government submitted
`
`

`

`6
`
`
`UNITED STATES v. ZUBAYDAH
`
`Opinion of the Court
`a declaration from the Director of the CIA. App. to Pet. for
`Cert. 123a–137a. The Director said that Mitchell and
`Jessen’s response to Zubaydah’s subpoenas would, in this
`case, confirm or deny whether Poland had cooperated with
`the CIA. Id., at 129a–130a. And that confirmation, the Di-
`rector explained, would significantly harm our national se-
`curity interests. Id., at 131a.
` The District Court granted the Government’s motion to
`quash the subpoenas. Id., at 60a. It did not accept the Gov-
`ernment’s claim “that merely confirming [that] a detention
`site was operated in Poland would pose a grave risk to na-
`tional security.” Id., at 59a. But it nonetheless thought the
`state secrets privilege applied. It concluded that the state
`secrets privilege allowed the Government to suppress “op-
`erational details concerning the specifics of cooperation
`with a foreign government, including the roles and identi-
`ties of foreign individuals.” Id., at 55a–56a (emphasis
`added). And it believed that it was not possible to conduct
`“[m]eaningful discovery . . . in this matter” without disclos-
`ing these (or other) protected types of information. Id., at
`57a. The court rejected Zubaydah’s suggestion that it
`would be possible to conduct further discovery through the
`use of code names that would conceal the locations of CIA
`detention facilities. Id., at 55a–57a. The court conse-
`quently dismissed Zubaydah’s §1782 application. Id., at
`60a.
` Zubaydah appealed. A divided panel of the Court of Ap-
`peals for the Ninth Circuit affirmed in part and reversed in
`part. The panel listed the following examples of privileged
`information sought by Zubaydah: “documents, memoranda,
`and correspondence about 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 [that] might implicate the CIA’s intelligence gath-
`ering efforts.” 938 F. 3d, at 1134; see also Appendix, infra,
`
`

`

`
`
`7
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`Cite as: 595 U. S. ____ (2022)
`
`Opinion of the Court
`at 19–20. But the panel majority held that the District
`Court nonetheless should not have dismissed the case.
`That was because, in its view, the state secrets privilege did
`not apply to information that was already publicly known.
`938 F. 3d, at 1133. It added that because Mitchell and
`Jessen are “private parties,” their disclosures would not
`tend to show that the Government itself had “confirm[ed]
`or den[ied] anything.” Ibid.
` More specifically, the panel majority wrote that three cat-
`egories of information were not covered by the state secrets
`privilege: “the fact that the CIA operated a detention facil-
`ity in Poland in the early 2000s; information about the use
`of interrogation techniques and conditions of confinement
`in that detention facility; and details of Abu Zubaydah’s
`treatment there.” Id., at 1134 (emphasis added). The panel
`then remanded the case to the District Court for further
`proceedings. Id., at 1135, 1137–1138.
` The Court of Appeals denied, over a twelve-judge dissent,
`the Government’s request for rehearing en banc. 965 F. 3d
`775 (2020). We granted the Government’s petition for cer-
`tiorari to determine whether the Court of Appeals erred.
`We believe that it did.
`
`II
`A
` The state secrets privilege permits the Government to
`prevent disclosure of information when that disclosure
`would harm national security interests. See Reynolds, 345
`U. S., at 10–11 (disclosure of Air Force accident investiga-
`tion report could disclose “military secrets”); In re Sealed
`Case, 494 F. 3d 139, 144 (CADC 2007) (disclosure of inspec-
`tor general reports would “create the risk of revealing cov-
`ert operatives, organizational structure and functions, and
`intelligence-gathering sources, methods, and capabilities”);
`see also Molerio v. FBI, 749 F. 2d 815, 819, 822 (CADC
`1984) (Scalia, J.) (disclosure of FBI’s rationale for not hiring
`
`

`

`8
`
`
`UNITED STATES v. ZUBAYDAH
`
`Opinion of the Court
`plaintiff “would impair the national security”).
` To assert the privilege, the Government must submit to
`the court a “formal claim of privilege, lodged by the head of
`the department which has control over the matter, after ac-
`tual personal consideration by that officer.” Reynolds, 345
`U. S., at 7–8. “The court itself must determine whether the
`circumstances are appropriate for the claim of privilege.”
`Id., at 8. “Judicial control over the evidence in a case can-
`not be abdicated to the caprice of executive officers.” Id., at
`9–10. Nonetheless, in assessing the Government’s claim
`that disclosure may harm national security, courts must ex-
`ercise the traditional “reluctan[ce] to intrude upon the au-
`thority of the Executive in military and national security
`affairs.” Department of Navy v. Egan, 484 U. S. 518, 530
`(1988).
` Although the court itself must assess the sufficiency of
`the Government’s privilege claim, “the showing of necessity
`which is made,” by the party seeking disclosure of the os-
`tensibly privileged information, “will determine how far the
`court should probe in satisfying itself that the occasion for
`invoking the privilege is appropriate.” Reynolds, 345 U. S.,
`at 11. “Where there is a strong showing of necessity, the
`claim of privilege should not be lightly accepted.” Ibid. In
`contrast, “where necessity is dubious, a formal claim of priv-
`ilege,” demonstrating “a reasonable possibility” of harm to
`national security, “will have to prevail.” Ibid. And in all
`events, “even the most compelling necessity cannot over-
`come the claim of privilege if the court is ultimately satis-
`fied that military secrets are at stake.” Ibid.
` JUSTICE GORSUCH agrees that the Government must
`show a reasonable danger of harm to national security, that
`a court must decide for itself whether the occasion is appro-
`priate for claiming the privilege, and that in camera review
`is not always required to make that determination. Post, at
`17–19 (dissenting opinion). We diverge from the dissent on
`how those principles should apply to the specific discovery
`
`

`

`
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`9
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`Cite as: 595 U. S. ____ (2022)
`
`Opinion of the Court
`requests Zubaydah has made in this litigation. Of course,
`our answer to that question is not a judgment of Zubaydah’s
`alleged terrorist activities, nor of his treatment at the
`hands of the United States Government. Obviously the
`Court condones neither terrorism nor torture, but in this
`case we are required to decide only a narrow evidentiary
`dispute.
`
`B
` An important factor in our analysis of that narrow issue
`is the specific language of Zubaydah’s discovery requests
`and the Ninth Circuit’s opinion, which both make it clear
`that any response Mitchell and Jessen give to Zubaydah’s
`subpoenas would tend to confirm (or deny) the existence of
`a CIA detention site in Poland. As we have said, 12 of
`Zubaydah’s 13 document requests contain the word “Po-
`land” or “Polish.” Appendix, infra, at 19–20. (The exception
`is a broad request for any and all documents concerning
`Zubaydah himself. Ibid.) Ten of the requests specifically
`seek “documents, correspondence, or memoranda . . . con-
`cerning” the alleged CIA detention site in Stare Kiejkuty,
`Poland. Ibid. If Mitchell and Jessen acknowledge the ex-
`istence of documents responsive to these requests, they will
`effectively acknowledge the existence of the detention facil-
`ity referenced therein. Conversely, denying the existence
`of responsive documents would deny the existence of such a
`facility. In any event, any response to the lion’s share of
`Zubaydah’s document requests will either confirm or deny
`that the CIA operated a detention site in Poland.
` The problem is confirmed by the Ninth Circuit’s opinion,
`which allowed continued discovery into three topics: the ex-
`istence of a CIA detention facility in Poland, the conditions
`of confinement and interrogation at that facility, and
`Zubaydah’s treatment at that location. 938 F. 3d, at 1134.
`The first category, of course, requires Mitchell and Jessen
`
`

`

`10
`
`
`UNITED STATES v. ZUBAYDAH
`
`Opinion of the Court
`to directly confirm or deny the existence of a Polish deten-
`tion site. The latter two categories require, at the very
`least, confirmation or denial, since acknowledging that any
`confinement, interrogation, or treatment occurred at a CIA
`detention facility located in Poland would confirm that such
`a facility exists or existed.
` Because any response to Zubaydah’s subpoenas allowed
`by the Ninth Circuit’s decision will have the effect of confir-
`mation or denial (by the Government or its former contrac-
`tors) of the existence of a CIA facility in Poland, the primary
`question for us must be whether the existence (or non-ex-
`istence) of a CIA detention facility in Poland falls within the
`scope of the state secrets privilege. For the reasons that
`follow, we conclude that it does.
`1
` We agree with the Government that sometimes infor-
`mation that has entered the public domain may nonetheless
`fall within the scope of the state secrets privilege. But see
`938 F. 3d, at 1133 (“[I]n order to be a ‘state secret,’ a fact
`must first be a ‘secret’ ”). The Government here has pro-
`vided a reasonable explanation of why Mitchell and
`Jessen’s confirmation or denial of the
`information
`Zubaydah seeks could significantly harm national security
`interests, even if that information has already been made
`public through unofficial sources.
` The CIA Director stated in his declaration that the
`Agency’s counterterrorism efforts rely on “clandestine” re-
`lationships with foreign intelligence services. App. to Pet.
`for Cert. 130a–131a. The Director explained that foreign
`intelligence services “are a critical intelligence source,”
`whose help is “vital to our world-wide efforts to collect in-
`telligence and thwart terrorist attacks.” Ibid.
` He further explained that these “sensitive” relationships
`with other nations are “based on mutual trust that the clas-
`sified existence and nature of the relationship will not be
`
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`

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`11
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`
`Opinion of the Court
`disclosed.” Id., at 135a–136a. To confirm the existence of
`such a relationship would “breach” that trust and have “se-
`rious negative consequences,” including jeopardizing “rela-
`tionships with other foreign intelligence or security ser-
`vices.” Id., at 131a–132a. In light of these concerns, the
`CIA “has steadfastly refused to confirm or deny the accu-
`racy” of public speculation about its cooperation with Po-
`land, leaving “an important element of doubt about the ve-
`racity” of that speculation, providing “an additional layer of
`confidentiality,” and at least confirming that the United
`States will “stand firm in safeguarding any coordinated
`clandestine activities,” despite the passage of time, the ex-
`istence of media reports, and changes in public opinion. Id.,
`at 133a–136a. In a word, to confirm publicly the existence
`of a CIA site in Country A, can diminish the extent to which
`the intelligence services of Countries A, B, C, D, etc., will
`prove willing to cooperate with our own intelligence ser-
`vices in the future.
` JUSTICE GORSUCH believes that the Government has
`failed to meet its “burden of showing that a ‘reasonable dan-
`ger’ of harm to national security would follow from sharing
`the information sought.” Post, at 21–22. In his view, the
`Director’s declaration is insufficient to demonstrate “that
`requiring the government to acknowledge [that the CIA did
`or did not operate a detention facility in Poland in the early
`2000s] would invite a reasonable danger of additional harm
`to national security.” Post, at 22–23. We disagree. It
`stands to reason that a former CIA insider’s confirmation of
`confidential cooperation between the CIA and a foreign in-
`telligence service could damage the CIA’s clandestine rela-
`tionships with foreign authorities. Confirmation by such an
`insider is different in kind from speculation in the press or
`even by foreign courts because it leaves virtually no doubt
`as to the veracity of the information that has been con-
`firmed. And there is ample reason to think that the circum-
`
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`12
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`
`UNITED STATES v. ZUBAYDAH
`
`Opinion of the Court
`stances of this case—particularly the specific discovery re-
`quests at issue here—could lead to this kind of confirma-
`tion. In any event, the CIA’s refusal to confirm or deny its
`cooperation with foreign intelligence services plays an im-
`portant role in and of itself in maintaining the trust upon
`which those relationships are based.
` Nor, as JUSTICE GORSUCH believes, do we reach this con-
`clusion by incorrectly placing the burden on Zubaydah to
`disprove the Government’s assertion of harm. Post, at 23.
`To the contrary, we agree with JUSTICE GORSUCH that the
`Government bears the burden of showing that the privilege
`should apply—we simply disagree with his conclusion that
`it failed to meet that burden here. In our view, the Direc-
`tor’s declaration adequately establishes “that there is a rea-
`sonable danger that compulsion of the evidence [at issue]
`will expose . . . matters which, in the interest of national
`security, should not be divulged.” Reynolds, 345 U. S., at
`10. And we have found nothing in the evidentiary record
`that casts doubt on our conclusion that the Government has
`met its burden here. Reynolds itself contemplated that a
`similar basis for a claim of privilege could prevail without
`further examination by the court of the ostensibly privi-
`leged evidence. Id., at 9–11.
` In contrast, JUSTICE THOMAS, referring to Reynolds, be-
`lieves that we need not consider the Government’s justifi-
`cations for invoking the privilege at all because Zubaydah
`has not made a “ ‘strong showing of necessity’ ” for the re-
`quested information. Post, at 1–2 (opinion concurring in
`part and concurring in judgment). Reynolds, however,
`taken as an example, indicates that the Government ini-
`tially must formally invoke the privilege. 345 U. S., at 8.
`Then the court itself must “determine whether the circum-
`stances are appropriate for the claim of privilege.” Ibid.
`And only after satisfying itself that the Government has of-
`fered a valid reason for invoking the privilege would a court
`turn to the issue of necessity (a matter that would help the
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`13
`
`Cite as: 595 U. S. ____ (2022)
`
`Opinion of the Court
`Opinion of BREYER, J.
`court determine how deeply to probe the details of, and ba-
`sis for, the Government’s privilege claim). Id., at 10–11.
`We follow Reynolds’ example here.
`2
` Additionally, the Government cites legal authority from
`the separate but roughly analogous Freedom of Information
`Act (FOIA) context, which supports our conclusion that the
`CIA’s concerns warrant application of the state secrets priv-
`ilege. Brief for Petitioner 32–34. The FOIA contains ex-
`emptions that permit an agency to withhold Government
`records that a member of the public has requested and
`which the ag