Case of the Day: In Re Abu Zabaydah

New York skyline with tribute in light

The case of the day is In re Abu Zabaydah (E.D. Wash. 2017). I featured the case is a post in July. Here was my summary of the background to this interesting § 1782 application:

Abu Zabaydah was a jihadi and an enemy of the United States, and that our government, which captured him in Pakistan in 2002, brutally tortured him and has no intention of either releasing him from custody or charging him with any crime. Senator Feinstein, on the Senate floor, said that for more than two weeks in 2002, he was subject to “nonstop interrogation and abuse, 24/7,” which included “multiple forms of deprivation and physical assault.”

In 2002 and 2003, Abu Zabaydah was imprisoned at a CIA “black site” in Poland. In 2010, while imprisoned at Guantanamo Bay (where he remains today), he sued Poland in the European Court of Human Rights, arguing that the Polish government had failed to conduct an investigation into his claims of violations of Polish and international law. In 2014, the ECHR agreed, and Poland therefore reopened the criminal investigation into Abu Zabaydah’s claims. Under Polish law, Abu Zabaydah has the right to submit evidence in connection with the investigation. The Polish government made requests for evidence to the United States via the two countries’ mutual legal assistance treaty, but the United States denied all of the requests. Abu Zabaydah then brought his application, seeking in particular leave to serve subpoenas on James Mitchell and Bruce Jessen, allegedly the “architects” of the CIA’s euphemistically-named “enhanced interrogation program.” (If I understand the situation correctly, Poland’s MLAT requests did not specifically seek Mitchell’s or Jessen’s testimony).

The US government has submitted a statement of interest opposing the application. The government’s main point is that Abu Zabaydah should not be able to use § 1782 to obtain evidence that the Polish government had been unable to obtain under the MLAT.

In the prior post, I opined that Abu Zubaydah had the better of the argument. It’s also relevant to know that in August, several plaintiffs who had brought a civil action against Mitchell and Jessen settled the case on a confidential basis.

In today’s decision, the judge granted leave to take discovery. Mitchell and Jessen are not parties to the Polish criminal investigation, so the first Intel factor favored discovery. On the issue of receptivity, the judge rejected the government’s argument about the MLAT. “The fact that the Polish government has sought information through the treaty process, and been denied by the Unite States Government further demonstrates the Polish government would be receptive to receiving the information.” On circumvention, though, the court recognized that the factor “cut both ways.” It was obvious that Abu Zabaydah was not trying to circumvent Polish prof-gathering restrictions, but he was attempting to circumvent US policy-based proof-gathering restrictions.

Consideration of the issues of burdensomeness and resaonableness was premature, the judge held. There was no assertion of state secret privilege, and neither Mitchell nor Jessen had yet asserted any privilege. Objections about privilege or about burdensomeness can be raised by Mitchell and Jessen once they receive the subpoenas.

I assume that the government was the driving force behind the settlement of the civil case against the two psychologists, and that it paid a significant amount of money in order to obtain a confidentiality agreement and avoid the disclosure of bad facts in litigation. It will be important to see whether those bad facts end up coming to light via this § 1782 case. I’ll keep my eyes on it.

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