By John Kruzel

From The Hill | Original Article

© Greg Nash

The Supreme Court on Thursday dismissed a Guantánamo Bay detainee’s request for information about his alleged torture at the hands of CIA contractors in Poland following the Sept. 11, 2001, terror attacks.

In a fractured opinion, the justices sided with the U.S. government, agreeing to block subpoenas sought by detainee Abu Zubaydah that would have shed light on his treatment in a CIA "black site."

Zubaydah had sought to question two CIA contractors, James Mitchell and John Jessen, key architects of the U.S. government’s so-called enhanced interrogation techniques, or torture program, who personally waterboarded Zubaydah dozens of times.

But the Supreme Court ruled that Zubaydah’s request was barred by the U.S. government’s assertion of the state secrets privilege, a legal doctrine that lets the government conceal certain information to protect national security. Although the use of CIA black sites abroad after the 9/11 attacks is now widely known, the U.S. government has never officially acknowledged their existence.

“Given Mitchell and Jessen’s central role in the relevant events, we believe that their confirmation (or denial) of the information Zubaydah seeks would be tantamount to a disclosure from the CIA itself,” Justice Stephen Breyer wrote for the court’s majority.

In a dissent, Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, suggested the majority’s insistence that any secrecy remained around the existence of the CIA’s black site in Poland was a mere contrivance.

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

The legal saga over Zubaydah, who is imprisoned in the U.S. military’s Guantánamo 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. 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 his. 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 the two former CIA contractors to provide evidence for use in a criminal probe in Poland over that country’s role in his abuse. Zubaydah had argued that the contractors’ testimony would provide Polish prosecutors with insights into his torture.

The contractors, Mitchell and Jessen, helped design the government’s harsh interrogation program and personally waterboarded Zubaydah more than 60 times, Mitchell said in testimony in 2020.

The court’s decision Thursday is the latest twist in the years-long, zig-zagging court case.

Initially, a federal district judge had sided with Zubaydah, granting his 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, although the judge found that some of the information Zubaydah sought was not privileged.

In particular, the district 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 “meaningful discovery cannot proceed in this matter without disclosing information that the Government 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 the 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.” It also found that the privilege did not apply to information that was in the public domain.

The 9th Circuit ruling prompted the Trump administration in December to petition the Supreme Court for appeal, which the Biden administration maintained. The government had argued that 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 Supreme Court’s Thursday ruling reversed the 9th Circuit decision and returned the case to that court with instructions to dismiss Zubaydah’s request.