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.