WASHINGTON. On Thursday, the Supreme Court stopped attempts by a detainee in Guantanamo Bay to obtain information from two former CIA officers who tortured him, ruling that the investigation would lead to unacceptable disclosure of state secrets.
Judge Stephen G. Breuer, in a letter to a heavily divided court, said the main question was whether the information sought by the detainee known as Abu Zubaydah would confirm the location of a secret CIA facility widely known to be in Poland. .
The judges divided 6 by 3 on the question of whether the case could be continued. Dissenting, Judge Neil M. Gorsuch, joined by Judge Sonia Sotomayor, said the government sought to avoid “further embarrassment for past wrongdoings.”
“It is hard to face the facts,” he wrote. “We already know that our government treated Zubaydah harshly – more than 80 sessions of water torture, hundreds of hours of live funerals and what it calls “rectal rehydration.” Further evidence in the same vein may lie in government vaults. But no matter how awkward these facts are, there is no state secret here.
“The duty of this court is the rule of law and the pursuit of truth,” Judge Gorsuch wrote. “We must not let shame obscure our vision.”
Judge Breuer, on the other hand, insisted that the issue at hand was limited. “Obviously, the court does not condone either terrorism or torture,” he wrote, “but in this case we are required to resolve only a narrow evidentiary dispute.”
He acknowledged that the location of the black object was recognized by an international tribunal and the former president of Poland. But he wrote that official confirmation by the United States government of a place of torture is another matter.
“Certainly, the confirmation by a former CIA insider of confidential cooperation between the CIA and a foreign intelligence service could damage the covert CIA relations with foreign authorities,” he wrote. “Confirmation by such an insider is different in nature from speculation in the press or even foreign courts because it leaves little to no doubt about the veracity of the confirmed information.”
Mr. Zubaida tried to subpoena the contractors, James E. Mitchell and Bruce Jessen, in connection with a Polish criminal investigation. The investigation was prompted by a ruling by the European Court of Human Rights that he was tortured in 2002 and 2003 at secret CIA facilities, including in Poland.
When United States v. Hussein, no. 20-827, was debated in October, David F. Klein, Mr. Zubaydah’s lawyer, said he was not seeking evidence about the location of the black object. “I’m not going to ask, ‘Did this happen in Poland?'” he said.
Rather, according to Mr. Klein, he was looking for information about the treatment of his client.
“What happened in Abu Zubaida’s cell between December 2002 and September 2003?” he asked, giving the dates his client was believed to have been in Poland. How was Abu Zubaida fed? What was his state of health? What was his camera like? And yes, he was tortured?
Judge Breuer wrote that questions such as these “will inevitably confirm or deny whether the CIA operated a detention facility located in Poland.”
In a concurring opinion supporting Judge Breyer’s bottom line but not his reasoning, Judge Clarence Thomas, joined by Judge Samuel A. Alito, Jr., wrote that the executive was entitled to even more respect than the majority accorded it.
Judge Elena Kagan, partly disagreeing with the case, said she agreed that the location of the black site should be protected, but said the case could nonetheless proceed.
“I would allow Zubaydah to amend his requests to remove all references to Poland,” she wrote, “so that he can get a statement about his detention – in whatever country it takes place.”
In his dissent, Judge Gorsuch, who defended the Bush administration’s detention policy as a Justice Department official in 2005 and 2006, said there was no point in barring testimonies about the location of the facility. “We must not ignore as judges what we know as truth as citizens,” he wrote.
“The location of the CIA detention facility has been acknowledged by the former President of Poland, investigated by the Council of Europe and proven ‘beyond reasonable doubt’ by the European Court of Human Rights,” he wrote. “Undoubtedly, these revelations could harm national security interests. But nothing in the case file suggests that requiring the government to accept what the world already knows to be true would create a reasonable risk of further harm to national security.”
Mr. Zubaida, whose real name was Zayn al-Abidin Muhammad Hussein, was captured in Pakistan in March 2002 and was initially believed to be a high-ranking member of al-Qaida. A 2014 Senate Select Committee on Intelligence report stated that “the CIA later concluded that Abu Zubaida was not a member of al-Qaeda.”
He was the first prisoner held by the CIA after the September 11, 2001 attacks to be subjected to so-called enhanced interrogation techniques, which were based on a list of sentences compiled for use on him by Dr. Mitchell and Dr. Jessen. both psychologists.
Dr. Mitchell testified that he and Dr. Jessen, who had experience in an Air Force program that trained pilots to resist torture, were hired by the CIA to advise on the interrogation of Mr. Zubaida. Finally, in the summer of 2002, they were instructed to perform these techniques on him.
A federal judge granted the government’s motion to block the subpoena, saying “to continue the investigation would pose an unacceptable risk of exposing state secrets.”
But a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that it may be possible to separate information protected by the state secret privilege, which prohibits disclosure of information that could endanger national security, from other material. .
The entire Ninth Circuit refused to review the panel’s decision due to dissent by 12 judges, who said the decision was riddled with “serious legal errors” and posed a “serious threat to our national security.”