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Guantanamo detainee loses high court fight over torture testimony 

The so-called forever prisoner of the military detention center cannot compel government contractors to testify about his torture at CIA black sites. 

WASHINGTON (CN) — The state-secrets privilege can be used to block testimony from federal contractors in a case concerning the torture of a Guantanamo Bay prisoner at CIA black sites, the Supreme Court ruled on Thursday. 

Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah, was captured in Pakistan after the terror attacks of Sept. 11, 2001. Though he has spent much of the past two decades since then without a charge at Guantanamo Bay, this was after he was wound across multiple black sites through the CIA’s rendition, detention and interrogation program. That he was tortured in CIA custody is not disputed. His story is among the most prominent within a study by the Senate Select Committee on Intelligence of the CIA's detention and interrogation program.

The full report, which extends over 6,000 pages, is classified but the 500-page summary released by the Senate mentions Zubaydah 1,001 times. Zubaydah is said to be the detainee for whom the CIA’s enhanced interrogation techniques were designed and was the first man waterboarded after 9/11.  

At Guantanamo Bay, his detainee profile pictures him wearing an eye patch — a consequence of his torture by the CIA, according to his lawyers. The U.S. meanwhile accuses Zubaydah not only of involvement in the training of two 9/11 hijackers but of possessing advanced knowledge of even earlier attacks: the 1998 bombings of U.S. embassies in Kenya and Tanzania and the 2000 attack on the USS Cole. Among other allegations, Zubaydah has been accused of serving as a high-level leader of al-Qaida and as a terrorist ally of Osama bin Laden. He denies the CIA's claims.

Attorneys for Zubaydah are suing at the European Court of Human Rights, saying their client was the victim of crimes when he was detained at a CIA black site in Stare Kiejkuty, Poland, between 2002 and 2003, and that Poland had failed to investigate them. Separately in Poland where he is suing to hold officials there accountable, Zubaydah wants James Elmer Mitchell and John Jessen, two doctors who helped set up CIA’s, torture program, to testify about his time at the black site.

The U.S. government claims, however, that allowing such testimony would publicize state secrets. 

In 2019, the Ninth Circuit that advanced Zubaydah’s subpoena, directing a federal judge to disentangle nonprivileged information from what is privileged.

The Supreme Court reversed that order in a raggedly divided split Thursday, emphasizing that it was not ruling either on “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,” Justice Stephen Breyer wrote in the lead opinion.

The bulk of the documents in the case mention Poland, so Breyer said Mitchell and Jessen cannot testify without confirming or denying the existence of the CIA black site. The court thus had to answer whether stating that the CIA had a detention facility in Poland was within the state secrets privilege.

Breyer acknowledged that the information has already been made available to the public through unofficial sources, but said it remains a state secret. The ruling leans on one CIA director’s statements regarding the reliance in counterterrorism efforts on “clandestine” relationships with foreign intelligence services. 

“​​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 services in the future,” wrote Breyer, a Clinton appointee.

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Justice Neil Gorsuch — joined by Justice Sonia Sotomayor — argued in a fiery dissent that judges shouldn't be ignorant of what is known by citizens. 

“There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” the Trump appointee wrote. 

Gorsuch said the events in question took place are settled history and have long been declassified. 

“Official reports have been published, books written, and movies made about them,” Gorsuch wrote. “Still, the government seeks to have this suit dismissed on the ground it implicates a state secret — and today the Court acquiesces in that request. Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret.” 

Citing the Senate’s 683-page report on CIA detention and interrogation practices, Gorsuch details Zubaydah’s torture including waterboarding, live burials, and rectal exams that were used to try to get information from him. He also cites other reports on the torture at CIA black sites as well as Mitchell’s own account in his published book. 

“The record before us is stark,” Gorsuch wrote. “Zubaydah’s detention in Poland took place 20 years ago. The location of the CIA’s detention site has been acknowledged by the former Polish President, investigated by the Council of Europe, and proven ‘beyond reasonable doubt’ to the European Court of Human Rights. Doubtless, these disclosures may have done damage to national security interests. But nothing in the record of this case suggests that requiring the government to acknowledge what the world already knows to be true would invite a reasonable danger of additional harm to national security.” 

Gorsuch said the central question in the case is what happened to Zubaydah between December 2002 and September 2003, and no one claims that request would be a state secret. 

“The government does not (and cannot) claim that its custody of Zubaydah at a black site remains a state secret: That much was declassified and documented in the Senate Report years ago,” Gorsuch wrote. 

While Article II of the Constitution allows the executive authority over national affairs, Gorsuch said there is still an interdependence between the branches of government. Gorsuch said Congress gave the judiciary power over discovery in cases like the one in Poland. 

“In this country, no one stands above the law; not even the President may deflect evidentiary inquiries just because they may prove inconvenient or embarrassing,” Gorsuch wrote. 

He continued: “When the Executive seeks to withhold every man’s evidence from a judicial proceeding thanks to the powers it enjoys under Article II, that claim must be carefully assessed against the competing powers Articles I and III have vested in Congress and the Judiciary. The original design of the Constitution and ‘our historic commitment to the rule of law’ demand no less.” 

The state secrets claim was also invoked in the trial of Aaron Burr, Gorsuch said, but Chief Justice Marshall refused to give the executive that power. Gorsuch invokes Korematsu v. United States — which was used to force internment of Japanese American citizens during World War II — to provide an example of when the court allowed the executive to misuse national security claims to hide abuses. 

“When classification standards are ‘so broadly drawn and loosely administered,’ temptation enough exists for executive officials to ‘cover up their own mistakes and even their wrongdoing under the guise of protecting national security,’” Gorsuch wrote. “This Court hardly needs to add fuel to that fire by abdicating any pretense of an independent judicial inquiry into the propriety of a claim of privilege and extending instead ‘utmost deference’ to the Executive’s mere assertion of one.” 

Justice Elena Kagan dissented in part, saying the government proved state secrets privilege but that the case should not be dismissed. Though she agreed that revealing the locations of Zubaydah’s detention would risk national security, Kagan said the case concerned not just the location of the CIA sites but also what happened there. 

“In short, the holding that national-security risks attach to confirming the location of Zubaydah’s detention — with which I agree — should not end this case,” the Obama appointee wrote. “A court can segregate that classified information from unclassified material about the nature of Zubaydah’s detention.” 

The Department of Justice declined to comment on the ruling, and attorneys for Zubaydah did not respond to requests for comment.

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