Justices weigh request for information on CIA’s post-9/11 torture program

The Supreme Court on Wednesday heard arguments over a Guantanamo Bay detainee’s request for information about his alleged torture at the hands of CIA contractors in Poland following the Sept. 11 attacks. 

The dispute pitted Abu Zubaydah’s pursuit of evidence about his treatment in a so-called CIA black site against the U.S. government’s effort to block its disclosure. 

The Biden administration on Wednesday argued that the state secrets privilege, a legal doctrine that lets the government conceal certain information to protect national security, should bar the request. 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 administration said.

“I think everyone acknowledges the importance of trust in covert relationships,” Brian Fletcher, a Justice Department lawyer who argued the government’s case, told the justices. 

“[The contractors] were integral to the program, they’d be testifying under oath about information that they’ve learned in the CIA and is subject to confidentiality requirements, and they’d be doing so in a proceeding designed to investigate and prosecute alleged former allies abroad,” he said. “That would be viewed as a serious breach of trust.”

The argument was the first of two clashes the justices will hear this term dealing with the U.S. government’s authority to keep under wraps information linked to highly controversial post-9/11 measures. 

The legal saga over Zubaydah, who is imprisoned in the U.S. military’s Guantanamo 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 Zubaydah’s. 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 two former CIA contractors to provide evidence for use in a criminal probe in Poland over that country’s role in his abuse.

The contractors, James Mitchell and John Jessen, were key architects of the U.S. government’s so-called enhanced interrogation techniques, or torture program, and personally waterboarded Zubaydah more than 60 times, Mitchell said in testimony last year.

Zubaydah’s attorney, David Klein, told the justices Wednesday that the contractors’ testimony would provide Polish prosecutors with insights into his client’s abuse.

“We’re looking for eyewitness testimony,” Klein said. “For the Polish prosecutor this site is a black box. He knows where it is. He knows when it was there. He can’t look inside it. I want to shine a light inside it, to understand what was happening there.”

Several justices on Wednesday questioned why Zubaydah did not testify about his treatment in CIA custody rather than ask the court to compel the testimony of the contractors, which might effectively be seen as an official acknowledgement of the torture program by the U.S. government.

Klein said Zubaydah was being held incommunicado as a condition of his detention at Guantanamo Bay. 

Justice Neil Gorsuch later put the question to the government’s attorney directly.

“Why not make the witness 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.

Fletcher, the Justice Department attorney, disputed the characterization of Zubaydah as being held incommunicado and said Zubaydah’s “communications are subject to security screening for classified information and other security risks.”

Under further questioning from Gorsuch, Fletcher said the Justice Department would provide the court with more direct response over whether the U.S. government would allow Zubaydah to testify in the Polish criminal proceeding.

The district court originally granted Zubaydah’s request for documents and testimony from the contractors. After the U.S. government intervened and asserted the state secrets privilege, the district court quashed the subpoenas entirely, though the judge found that some of the information Zubaydah sought was not privileged.

In particular, the district court 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 “[m]eaningful 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 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.”

The 9th Circuit ruling prompted the Trump administration in December to petition the Supreme Court for appeal, which the Biden administration has maintained.

A decision in the case, U.S. v. Zubaydah, is expected by June.

Updated at 12:45 p.m.