US Supreme Court weighs request for information on CIA’s post-9/11 torture program

WASHINGTON DC (Agencies): The Supreme Court on Wednesday heard arguments over a Guantanamo Bay detainee’s request for information about his alleged torture at the hands of Central Intelligence Agency (CIA) contractors in Poland following the Sept. 11 attacks.
The dispute pitted Abu Zubaydah’s pursuit of evidence about his treatment in a so-called CIA “black site” against the U.S. government’s effort to block its disclosure.
The Biden administration on Wednesday argued that the state secrets privilege, a legal doctrine that lets the government conceal certain information to protect national security, should bar the request. The CIA contractor testimony sought by Zubaydah for use in a Polish criminal prosecution, if permitted, would risk damaging U.S. relations with foreign allies, the administration said.
“I think everyone acknowledges the importance of trust in covert relationships,” Brian Fletcher, a Justice Department lawyer who argued the government’s case, told the justices.
“[The contractors] were integral to the program, they’d be testifying under oath about information that they’ve learned in the CIA and is subject to confidentiality requirements, and they’d be doing so in a proceeding designed to investigate and prosecute alleged former allies abroad,” he said. “That would be viewed as a serious breach of trust.”
The argument was the first of two clashes the justices will hear this term dealing with the U.S. government’s authority to keep under wraps information linked to highly controversial post-9/11 measures.
The legal saga over Zubaydah, who is currently imprisoned in the U.S. military’s Guantanamo Bay facility, began with his 2002 capture in Pakistan. At the time, the U.S. government alleged he was a senior al Qaeda operative who helped to plan the Sept. 11 attacks. But a subsequent Senate probe showed those claims to be unfounded.
Following his capture, Zubaydah was held for four years in various CIA facilities abroad where he was subjected to alleged torture, including waterboarding, starvation, mock burial and the use of insects to exploit a specific phobia of Zubaydah’s. Beginning in 2002, he was held for 10 months at a CIA site in Poland, according to multiple sources. After a Senate investigation in 2014 shed new light on the clandestine CIA operation, Zubaydah asked a federal court to compel two former CIA contractors to provide evidence for use in a criminal probe in Poland over that country’s role in his abuse.
The contractors, James Mitchell and John Jessen, were key architects of the U.S. government’s so-called “enhanced interrogation techniques,” or torture program, and personally waterboarded Zubaydah more than 60 times, Mitchell said in testimony last year.
The district court originally granted Zubaydah’s request for documents and testimony from the contractors. But after the U.S. government intervened and asserted the state secrets privilege, the district court quashed the subpoenas entirely, even though the judge found that some of the information Zubaydah sought was not privileged.
In particular, the district court judge found that the fact of the CIA’s involvement with a black site in Poland was not a state secret since its existence was already firmly established. But the court agreed that the disclosure of information like the identities of the Polish nationals who cooperated in Zubaydah’s torture and other operational details should remain concealed.
The judge quashed the subpoenas after concluding that “[m]eaningful discovery cannot proceed in this matter without disclosing information that the Gove-rnment contends is subject to the state secrets privilege.” The ruling prompted an appeal by Zubaydah.
In 2019, a San Francisco-based federal appeals court reversed course. In a divided ruling, a three-judge panel of the U.S. Court of Appeals for 9th Circuit found that the district court erred by blocking Zubaydah’s evidence request in full, rather than “attempting to disentangle nonprivileged from privileged information.”
The 9th Circuit ruling prompted the Trump admini-stration in December to petition the Supreme Court for appeal, which the Biden administration has maintained. A decision in the case, U.S. v. Zubaydah, is expected by June 2022.