The Supreme Court on Wednesday seemed skeptical of requiring the U.S. government to divulge what it says is secret information being sought by a Guantanamo Bay detainee. But in a surprising turn, several justices also raised questions about the rights of the man, who was tortured by the CIA abroad and has been detained for nearly two decades.
The case the high court was wrestling with involves Abu Zubaydah, who was thought to be a high-ranking member of al-Qaida when he was captured in Pakistan in 2002. He and his lawyer want to question two former CIA contractors about Zubaydah's detention at a secret CIA facility in Poland where they say he was tortured.
The information would be used as part of an ongoing investigation in Poland about Zabaydah's time there.
The fact that Zubaydah was held at so-called CIA black sites in both Thailand and Poland has been widely reported. The U.S. government has also allowed the disclosure of information about how he was treated. But the government has stopped short of acknowledging the locations of the black sites set up after 9/11 to gather intelligence about terrorist plots against Americans. The government has cited national security and its commitments to foreign partners.
The fact that many details of Zubaydah's treatment at the hands of the CIA are public led some justices to question why he shouldn't get access to at least some testimony from the former CIA contractors. “It seems to me there may be a lot that they can talk about" that has "nothing to do with the actual location at which events occurred,” Chief Justice John Roberts said.
But many of the justices also asked Zubaydah's lawyer why, if so much information is public, the testimony of the former CIA contractors is necessary. “What do you need them for?” Justice Amy Coney Barrett asked at one point. “Why do you need additional testimony?” Justice Clarence Thomas asked at another.
At the end of the argument, however, Justice Neil Gorsuch raised a different solution: why not let Zubaydah provide information to Polish officials about his own treatment?
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“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?” Gorsuch said.
Gorsuch and Justice Sonia Sotomayor told government lawyer Brian H. Fletcher they want an answer about whether the Biden administration would allow that.
“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,” Sotomayor said.
Fletcher suggested he would provide an answer in a court filing at a later date. But he also said Zubaydah is not being held “incommunicado," as his lawyers contend.
Zubaydah's longtime lawyer Joseph Margulies said in an interview after the argument that everything Zubaydah says is “presumptively classified at a top secret level” and that any communications from him must be first presented to the CIA for review. He said it would represent a “real change” in the government's approach to Guantanamo prisoners if Zubaydah were allowed to “have his voice heard.”
Justice Stephen Breyer also asked about Zubaydah testifying: "He was there. Why doesn’t he say this is what happened?" Breyer said. At another point he questioned Zubaydah's continued detention at Guantanamo, which the Biden administration has said it will close. "I don't understand why he's still there,” Breyer said.
The Supreme Court last addressed the detention of Guantanamo prisoners in 2008, ruling they have a right to challenge their detention in U.S. courts. Most of the 39 men still held there have never been charged with a crime.
Zubaydah was the first person in the CIA's new detention and interrogation program following 9/11. He spent four years at CIA black sites before being transferred to Guantanamo in 2006. According to a 2014 Senate reporton the CIA program, among other things Zubaydah was waterboarded more than 80 times and spent over 11 days in a coffin-size confinement box. The extreme interrogation techniques used as part of the program are now widely viewed as torture.
Zubaydah is seeking information from former CIA contractors James Mitchell and John “Bruce” Jessen, who are considered the architects of the CIA's interrogation program.
Zubaydah and his attorneys note that Mitchell and Jessen have testified twice before in other situations, including hearings at Guantanamo. They say they want nonprivileged information from the men including details of his treatment.
The Biden administration, like the Trump administration before it, has opposed the testimony.
A federal court initially ruled that Mitchell and Jessen shouldn't be required to provide any information. But an appeals court ruled 2-1 that the lower court made a mistake in ruling out questioning entirely before attempting to separate what can and can't be disclosed.
The government says in its briefs before the Supreme Court that Zubaydah was “an associate and longtime terrorist ally of Osama bin Laden.” Zubaydah's lawyers say the CIA was mistaken in believing he was a high-ranking member of al-Qaida.