(WASHINGTON) — A U.S. Supreme Court case about state secrets and brutal CIA black-site interrogations after 9/11 took an abrupt turn Wednesday when a trio of justices demanded answers from the Biden administration about why the plaintiff — Al-Qaeda suspect Abu Zubaydah — is still held without charges in a military prison at Guantanamo Bay, Cuba, even though the war in Afghanistan has concluded.
“I don’t understand why he’s still there after 14 years,” said a clearly exasperated Justice Stephen Breyer.
The controversial wartime detention of alleged terrorist combatants was not the immediate focus of the case but was raised after more than an hour of oral arguments by Breyer and Justices Neil Gorsuch and Sonia Sotomayor.
The justices had all been wrestling with how to balance the government’s need to keep secret the foreign location of Zubaydah’s interrogation — in an effort to protect national security interests — and the detainee’s need to obtain testimony from two former CIA contractors about what happened when he was in their custody.
Zubaydah is pursuing a claim against Polish officials in Polish court for their alleged complicity in his harsh treatment at a CIA black site in the country, as outlined in a U.S. Senate report, and wants on-the-record testimony about what happened there. The U.S. government has never formally confirmed, nor denied, the existence of a site in Poland and contends testimony from the contractors could compromise secrets.
Justice Gorsuch suggested one “off-ramp,” or solution, to the entire case could be allowing Zubaydah to speak for himself about how he was treated, especially since many details have already been declassified in a 2014 Senate Intelligence Committee report.
Zubaydah, who was captured in Pakistan in 2002, was waterboarded 83 times, spent 11 days in a coffin-size confinement box and was subjected to “walling, attention grasps, slapping, facial holds, stress positions and sleep deprivation,” according the report.
“Why not make the witness [Zubaydah] available? What is the government’s objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?” Gorsuch asked acting Solicitor General Brian Fletcher, representing the Biden administration.
“I understand there are all sorts of rules and protective orders,” he continued, “I’d just really appreciate a straight answer to this: will the government make Petitioner [Zubaydah] available to testify as to his treatment during these dates?”
Fletcher, apparently caught off guard, explained that he could not offer an answer without first consulting with the Defense Department. He pledged to comply with the justices’ request. Under terms of his detention, Zubaydah is allowed to communicate only with his legal team.
“Well, gosh,” replied Gorsuch, “this case has been litigated for years and all the way up to the United States Supreme Court, and you haven’t considered whether that’s an off-ramp that — that the government could provide?”
The exchange was a remarkable moment that united justices from across the ideological spectrum.
Justice Sotomayor joined Gorsuch’s argument, saying, “We want a clear answer. Are you going to permit him to testify, yes or no?”
Justice Brett Kavanaugh, who was participating virtually in the argument because of a COVID-19 diagnosis last week, attempted to throw the government a lifeline. “Is the US still engaged in hostilities under the AUMF against Al-Qaeda?” he asked.
“That is the government’s position, that notwithstanding withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with Al Qaeda and therefore that detention under law of order remains proper,” Fletcher replied.
It is unclear whether the terms of his detention could or would be modified to allow him to testify publicly about his treatment in CIA custody.
The government insists any official testimony that implicates Poland as the location of a CIA black site would breach the trust of our allies and harm future intelligence agreements.
Zubaydah says his pursuit of a case in Polish court could benefit from an eyewitness account of what happened to him, even though many details are already in the public domain. “I want to shine a light on what happened,” said his attorney David Klein.
A majority of the justices appeared inclined to show deference to the government’s national security concerns about formally confirming Poland as a black site location, but they were also skeptical of a sweeping assertion of state secrets privilege that prevents Zubaydah from providing his own account in a court of law.
The justices are expected to hand down a decision in the case by the end of June 2022.
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