As we settle into the third decade since the 9/11 attacks, and the US’s brutal and counter-productive response to it — the establishment of the prison at Guantánamo Bay, and a global program of kidnapping, rendition and torture in CIA “black sites” — the US government is still furiously engaged in efforts to hide the evidence of what it did to whom, and where, even though much of that information is in the public domain, and has been for many years.
A case in point is a recent Supreme Court ruling in the case of Abu Zubaydah, for whom the post-9/11 torture program was first developed, in the mistaken belief — which the US government has since walked back from — that he was a major player in Al-Qaeda. Zubaydah, a stateless Palestinian, whose real name is Zain al-Abidin Muhammad Husayn, was seized in a house raid in Pakistan on March 28, 2002, and was taken to the CIA’s first black site, in Thailand. He was then moved to further “black sites” in Poland, in Guantánamo itself, and in Morocco and Lithuania, before ending up back at Guantánamo in September 2006, with 13 other “high-value detainees,” where he has been held ever since without charge or trial.
The case before the Supreme Court didn’t involve the question of whether, after 20 years, Abu Zubaydah should be released, as one of a number of “forever prisoners” who have never been charged, although that is a perfectly valid question — and one that, in the last year, prompted 99 lawmakers to write to President Biden to urge him to release everyone still held at Guantánamo who hasn’t been charged, a total of 26 of the 38 men still held, including Abu Zubaydah.
Instead, the case focused on a request for the CIA contractors who developed the torture program — James Mitchell and Bruce Jessen — to be questioned about what specifically happened to Abu Zubaydah during his imprisonment in Poland, from December 2002 to September 2003, as part of an ongoing Polish investigation.
This was not an unreasonable request, and yet, in response, the US government invoked the “state secrets privilege,” which, as the Court described it, “permits the Government to prevent disclosure of information when that disclosure would harm national security interests.” Justice Department lawyers argued that the Court should recognize that the location of the site must remain secret, and that therefore Abu Zubaydah’s request should be denied.
Shamefully, seven of the nine Justices agreed — although there were several partial dissents. However, Justice Gorsuch, a Conservative nominated by Donald Trump, vigorously disagreed. In a withering dissent, in which he was joined by Justice Sotomayor (nominated by President Obama), he castigated the majority supporting the government’s claim about “state secrets” — and the government for invoking it.
Justice Gorsuch’s dissent
As Justice Gorsuch described it, “Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret — and today the Court acquiesces in that request. 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.”
Gorsuch then ran through what was released about Abu Zubaydah’s treatment in the Senate Intelligence Committee’s groundbreaking report about the CIA torture program, whose unclassified summary was released in December 2014, describing his torture in detail, and how he was moved to “Detention Site Blue” (Poland) in December 2002, and, “After a stay there and, it seems, years of further transfers among other black sites … was transferred to the government’s detention center in Guantánamo Bay in 2006.”
The Senate report referred to the CIA “black sites” only by code names, but, as Justice Gorsuch also explained, copious evidence exists to demonstrate that “Detention Site Blue” was in Poland:
As far back as 2007, the Council of Europe issued a lengthy report finding that the CIA held Zubaydah at a black site in Poland after his capture. In 2012, Aleksander Kwasniewski, the President of Poland from 1995 to 2005, told reporters that the CIA site was established “with [his] knowledge.” In 2014, the European Court of Human Rights found “beyond reasonable doubt” that Zubaydah was detained in Poland from December 2002 until September 2003. In support of its conclusion, the ECHR cited evidence spanning over 100 pages, including declassified flight records, Polish governmental records, and eyewitness testimony. Many other public sources have likewise documented that Zubaydah was transported from Detention Site Green to Detention Site Blue in Poland in December 2002 — and that he remained there until September 2003.
Gorsuch then explained how “[w]e know even more from Mitchell and Jessen themselves,” as they “have spoken and written extensively — without governmental objection — about their activities,” and how, “In 2017, as part of a lawsuit brought by other former CIA detainees, the government allowed Mitchell and Jessen to testify how they conceived the idea of waterboarding detainees, how they asked the CIA to discontinue the use of enhanced interrogation techniques with Zubaydah, and how headquarters refused.” He also explained how, “In 2020, the pair testified with governmental permission once more, this time in military commission hearings at Guantánamo Bay. Over eight days, covering 2,000 pages of testimony, Mitchell explained how Zubaydah was waterboarded and kept awake for 126 consecutive hours, along with other details about the CIA’s techniques. Jessen provided similar testimony.”
Even so, Justice Gorsuch acknowledged that “Zubaydah’s story remains incomplete,” adding, “While we know that the CIA held Zubaydah at Detention Site Blue from December 2002 until September 2003, and while we know that the site was in Poland, what happened to him there remains unclear.” His lawyers, he proceeded to explain, have stated that “the details of Zubaydah’s treatment during this singular period are not yet publicly documented,” and that Mitchell and Jessen’s testimony is needed because “Polish prosecutors are seeking to unravel that part of the story and determine whether criminal charges are appropriate in that country.”
After running through the history of the case, in the District Court and the Court of Appeals, Justice Gorsuch noted that, “As it arrives before us, then, the central question in this case concerns the request for information about ‘what happened inside Abu Zubaydah’s cell between December 2002 and September 2003.’ It is this information — about Zubaydah’s interrogation, treatment, and conditions of confinement at the hands of the CIA — that Zubaydah’s lawyers say they need most. Nor does anyone suggest this request implicates a state secret. The government does not (and cannot) claim that its custody of Zubaydah at a black site remains a state secret: That much was declassified and documented in the Senate Report years ago. The government has conceded, too, that the interrogation techniques Mitchell and Jessen employed and Zubaydah’s conditions of confinement and treatment within his cell during that period are ‘no longer classified.’ At a minimum, Zubaydah’s lawyers argue, all this means he should be allowed discovery from Mitchell and Jessen about his interrogations, treatment, and conditions of confinement from December 2002 until September 2003, with safeguards to protect against the disclosure of the site’s location and the involvement of foreign nationals.”
Justice Gorsuch then tackled the Executive’s demand for “utmost deference” to “its judgment that Zubaydah’s suit should be dismissed,” running through the history of the “state secrets privilege,” and its abuse by the Executive branch, before returning to the Court’s shameful decision to show “utmost deference,” rather than insisting that the government be required to explain to a lower court, in camera, why its haughty blanket invocation of the “state secrets privilege” is justifiable.
As he explained, “The plurality confuses appropriate deference to the Executive’s predictive judgments about foreign affairs with inappropriate deference to the Executive’s concerns about its own mishaps, misstatements, and mistakes. In the process, the plurality abdicates judicial responsibility to use ordinary tools of litigation management in favor of the Executive’s wish to brush this case out the door. We do no honor to the rule of law in acquiescing to that impulse.”
He added, “The government worries about confirming the location of its detention site, but it has not shown how doing so would harm national security in light of how well documented that fact already is. Worse, the government has not even shown how this lawsuit would require it to confirm the location of its detention site. We do not have in this case a question about how far to probe the government’s privilege claim; we have not probed that claim at all. We have replaced independent inquiry with a rubber stamp.”
His concluding paragraph lays bare the significance of the Court’s failure to dismiss uncalled-for demands of “utmost deference” from a government that, after 20 years, is still seeking, in a completely unjustifiable manner, to hide what it did to avoid further embarrassment.
As he explained, “In the end, only one argument for dismissing this case at its outset begins to make sense. It has nothing to do with speculation that government agents might accidentally blurt out the word ‘Poland.’ It has nothing to do with the fiction that Zubaydah is free to testify about his experiences as he wishes. It has nothing to do with fears about courts being unable to apply familiar tools to disaggregate discovery regarding some issues (location, foreign nationals) from others (interrogation techniques, treatment, and conditions of confinement). Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds. Perhaps at one level this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally — more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls ‘rectal rehydration.’ Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.”
“Eventually, the truth will be known”
Although the Court’s ruling means that Abu Zubaydah is back to square one in seeking to compel Mitchell and Jessen to testify about what they did to him in Poland, Joseph Margulies, one of Abu Zubaydah’s long-standing attorneys, has no doubt that, as he explained in an article for Just Security, “eventually, the truth will be known.” He noted how Justice Breyer openly described Abu Zubaydah’s treatment as torture, and how “no member of the Court balked at Justice Breyer’s language, not even Justices Thomas and Alito,” who showed the most deference to the government, and noted how significant this was — “bracingly refreshing,” as he described it — because the prior hearing in the case, in the Ninth Circuit Court of Appeals, “was the first time an appellate court had ever described the so-called ‘enhanced interrogation techniques’ as torture, and even that elicited a rebuke” from some of the judges.
Mostly, however, Margulies was full of praise for Justice Gorsuch’s dissent. “In language that will live for the ages,” he wrote, “he castigated the government for its shameful determination to shrink from its past and conceal its sins,” and “thought it preposterous that a fact everyone knows could be a ‘state secret.’”
“But more than that,” Margulies added, “one senses he believes it is beneath the dignity of a mature democracy to refuse responsibility for its moral and legal lapses.”
As he also explained, although “[m]any observers expressed surprise that this message should come from one of the Court’s most conservative members,” he “was not surprised.” As he put it, “There is a space where conservative and liberal voices join. It is the belief that government service is a privilege, but only when government is honorable. When elected leaders betray their allegiance to the law and abandon their faith in the cleansing power of the truth, they must find no quarter in the Court.”
In conclusion, he added his hope that “this message is not lost on the Biden Administration as it weighs the fate of Abu Zubaydah, The Forever Prisoner.”