High court sides with government in Gitmo state secrets case

The Supreme Court sided with the government Thursday and dismissed a case involving a Guantanamo Bay detainee captured after the Sept. 11 attacks and tortured by the CIA abroad who has sought information about his treatment. The United States insisted that the information Abu Zubaydah sought must remain secret even though much has been widely reported.

Zubaydah, who was seized in Pakistan in 2002, was once thought to be a high-ranking member of the al-Qaida terrorist group that carried out the 2001 attacks. He was tortured while being held at so-called CIA black sites abroad before being transferred to Guantanamo in 2006.

Zubaydah was seeking to get the testimony of two former CIA contractors as part of an investigation into his treatment in Poland, where it has been widely reported he was once held. But six justices agreed his case should be thrown out.

Justice Stephen Breyer wrote for the majority that the government had argued “Zubaydah’s discovery request could force former CIA contractors to confirm the location of the detention site and that confirmation would itself significantly harm national security interests.”

“In our view, the Government has provided sufficient support for its claim of harm to warrant application” of the so-called state secrets privilege, he said.

Many details about Zubaydah’s treatment have been reported, including that he was held in Thailand and Poland. The U.S. has allowed the disclosure of some information about his treatment. According to a 2014 Senate report, among other things Zubaydah was waterboarded more than 80 times and spent over 11 days in a coffin-size confinement box. Such techniques are now widely viewed as torture.

The U.S. has stopped short of acknowledging the locations of the black sites set up after 9/11 to gather intelligence about terrorist plots against Americans. The government has cited national security and its commitments to foreign partners.

Conservative Justice Neil Gorsuch, writing in a dissent for himself and liberal Justice Sonia Sotomayor, said Zubaydah’s detention in Poland is no secret. Nothing in the case “suggests that requiring the government to acknowledge what the world already knows to be true” would endanger national security, he wrote. “What was once a secret can, with the passage of time, become old news.”

Gorsuch noted that the events about which Zubaydah was seeking information had taken place two decades ago and 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 wrote.

Justice Elena Kagan agreed with the government that the former CIA contractors should be blocked from testifying about the location where Zubaydah was detained. But Kagan said a lower court could protect “classified information about location while giving Zubaydah access to unclassified information about detention conditions and interrogation methods.” She said she would have allowed that process to go forward and not have dismissed the case.

Zubaydah’s lawyer, Joseph Margulies, said in an email that he was studying the decision. Margulies had sought testimony from former CIA contractors James Mitchell and John “Bruce” Jessen, who are considered the architects of the CIA’s interrogation program. The two have testified before in other situations, including hearings at Guantanamo. Mitchell even wrote a book.

Still, the Biden administration, like the Trump administration before it, opposed Zubaydah getting their testimony.

A federal court initially ruled that Mitchell and Jessen shouldn’t be required to provide any information. But an appeals court ruled 2-1 that the lower court made a mistake in ruling out questioning entirely before attempting to separate what can and cannot be disclosed. The Supreme Court reversed that ruling and said the case should be dismissed.

Still, Zubaydah may have gotten something out of the lawsuit. During arguments in the case in October, Gorsuch pressed a government lawyer as to why Zubaydah himself could not provide information to Polish officials about his own treatment.

The administration later said in a letter to the court that it would allow Zubaydah to send a declaration that could be given to Polish officials. Breyer wrote that ability might further diminish his need for information about his treatment.

Gorsuch, however, said that “offer seems little more than an offer to let Zubaydah say whatever the government chooses to allow him to say.” He noted that the government said it would reserve the right to subject whatever Zubaydah produces to a “security review.”

In addition, “No one seems confident that Zubaydah remains mentally competent to testify about his treatment decades ago,” Gorsuch wrote. Zubydah’s lawyers had said in responding to the government that they would need to meet with him to determine “whether and to what extent, after years of torture and solitary confinement, he can still reliably reconstruct” the details of his treatment.

 

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