WASHINGTON (CN) — Grappling with a discovery order that the U.S. government says would threaten national security, the chief justice of Supreme Court and several of his colleagues sparred in oral arguments Wednesday over the possibility that a Guantanamo Bay detainee has other sources to call upon, including his own memory.
“I don't think the court realizes the extent to which Guantanamo prisoners are muzzled,” Joe Margulies, a Cornell University law professor representing the detainee, said in a call to Courthouse News after the hearing.
It was the Ninth Circuit that advanced the subpoena in 2019, saying a federal judge must disentangle nonprivileged information from what is privileged after the U.S. government intervened in a suit by Zayn al-Abidin Muhammad Husayn, more commonly known as Abu Zubaydah, against James Elmer Mitchell and John Jessen, onetime CIA contractors who helped set up the agency’s torture program used to question suspects after the terror attacks of Sept. 11, 2001.
Zubaydah was captured in Pakistan pursuant to the CIA's rendition, detention and interrogation program that resulted in his delivery to a CIA black site in Poland. The government has never charged Zubaydah, though he remains to this day at Guantanamo Bay on suspicion of involvement in the training of two of the 9/11 hijackers. Over the years, the allegations against him have shifted.
While early detention papers called Zubaydah a high-level leader of al-Qaida, the government claimed later that Zubaydah had advanced knowledge of the 1998 bombings of U.S. embassies in Kenya and Tanzania, as well as the 2000 attack on the USS Cole. Last year, the government asserted in its petition for certiorari that Zubaydah "was an associate and longtime terrorist ally of Osama bin Laden" — a title that Zubaydah's attorneys call "categorically false" in their opposition brief.
Zubaydah holds the distinction of being the first man waterboarded after 9/11 — acts of torture that occurred some 83 times, according to the public summary by Senate investigators of a 6,700-page report that remains classified. The so-called "forever prisoner" is pictured in his Guantanamo Bay profile wearing an eye patch — a prominent consequence, his lawyers say, of his torture by the CIA.
The Pentagon acknowledged over a decade ago that Zubaydah never joined al-Qaida, as previously alleged. What the U.S. still has not acknowledged, however, is the existence of the black site in Poland where Zubaydah was tortured. Confirmation has come instead from several other sources, including the president of Poland, a fact that Chief Justice John Roberts touched on Wednesday at oral arguments.
"What if the foreign partners have no objection or, in fact, have confirmed the relationship themselves?" the George W. Bush appointee asked.
Justice Stephen Breyer underscored this as well, even going so far as to ask why Zubaydah remains a prisoner of the United States — noting that Mitchell and Jessen would not have to be subpoenaed, implicating privileged material, if Zubaydah could instead testify himself at the criminal proceedings underway in Poland about his black-site experience.
“Look, I don't understand why he's still there after 14 years,” the Clinton appointee said, referring to Guantanamo, where Zubaydah has been detained since 2006.
Zubaydah's attorney Margulies said questions about sending Zubaydah to Poland highlighted how little the court knows about the conditions of Guantanamo prisoners.
“I think that there was some education going on in the court," Margulies said. "They seem to think that a Guantanamo prisoner like any other prisoner in federal court could be allowed to testify, it's just a matter of getting a court reporter down there. They just might not have been aware. They're aware now.”
The justices pressured the Department of Justice to answer whether it would allow Zubaydah to testify.
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