More than 20 years after the 9/11 terrorist attacks, the Supreme Court seemed receptive Wednesday to claims from the Biden administration that it can shield information pertaining to the detention of Abu Zubaydah, a former associate of Osama bin Laden who was subject to enhanced interrogation techniques in a CIA detention center abroad and is currently held at Guantanamo Bay.
Several justices noted that while some information lawyers for Zubaydah seek – pertaining to where he was confined abroad and the details of his interrogation – has been made public in other proceedings, the US government has an interest in protecting its foreign partners and not breaching their trust by revealing details related to Zubaydah’s confinement.
The case highlights continuing terrorism concerns and examines the role courts play balancing national security interests against calls for greater transparency and government accountability. Near the end of Wednesday’s argument, however, three justices pressed the government on an issue not squarely before them in the case: whether the Biden administration would allow Zubadyah himself to be deposed in the case.
Zubaydah was captured in Pakistan in March 2002 and now his lawyers are seeking to subpoena two CIA contractors, James Mitchell and John Bruce Jessen, who worked on the CIA program. The lawyers want to use the information in criminal proceedings in Poland in order to hold Polish officials accountable for their complicity in what Zubaydah says was his unlawful detention and torture in a CIA facility in Stare Kiejkuty, Poland.
In court, the Biden administration, like the Trump administration, invoked the so-called “state secrets” privilege, a legal doctrine available to the government to protect information from discovery in court that it says could threaten national security.
While a district court ruled in favor of the government, the 9th US Circuit Court of Appeals rejected its blanket assertion of the state secrets privilege over some of the information in the case. In doing so, it overruled the judgment of then-CIA Director Mike Pompeo regarding the potential harm to national security. The court noted that the fact that the CIA had operated a detention facility in Poland, and details surrounding Zubaydah’s torture was no longer a state secret in part because it had been disclosed in other legal proceedings as well as a congressional report. Disclosure of that information, the court said, would not cause grave danger to national security.
At the Supreme Court Wednesday, acting Solicitor General Brian Fletcher told the justices that compelling the government to release the details would harm “covert intelligence partnerships” that depend upon “our partners’ trust that we will keep those relationships confidential.”
He said the contractors’ subpoenas should be blocked because the men would be testifying in a proceeding “designed to investigate and prosecute our alleged former allies abroad.”
The federal appeals court should have deferred to the CIA’s expertise in the matter and not make its own assessment of national security harms, Fletcher said. The government has already declassified a significant amount of information, including details of Zubaydah’s treatment and the use of enhanced interrogation techniques. But it determined that certain categories of information, including the identities of its foreign intelligence partners and the location of its CIA detention facilities should not be declassified in order to protect national security. A Senate Intelligence Committee report later detailed that Zubaydah experienced at least 83 waterboard applications.
David Klein, a lawyer for Zubaydah, said the information was necessary to better understand the conditions in his client’s cell and how he was tortured.
“We are not talking about a secret anymore,” Klein said. “We are talking about a governmental wish not to assist this Polish investigation.”
The justices probed the level of deference courts owe to the government when it comes to state secrets, but they also raised questions about the fact that the information would be used not in a US proceeding, but in a foreign court.
Although Justice Elena Kagan said a claim of state secrets could be “farcical” at times when the information was in the public realm – at another point she nodded to the need to protect relationships with allies.
Chief Justice John Roberts also pointed out the “breach of faith with our allies and friends around the world.”
Justice Clarence Thomas pushed Klein on the fact that a lot of the information had already been disclosed. “Why do you need additional testimony?” he asked.
But as they grappled with the case Justice Stephen Breyer brought up a separate issue. He asked the government, “Why don’t you ask Zubaydah?”
Justice Neil Gorsuch also asked Fletcher point blank: “Why not make the witness available?” Gorsuch suggested if the government did so, it would no longer be required to make any kind of direct admission.
Fletcher, who appeared surprised by the question, responded that Zubaydah, is subject to the same restrictions that apply to similar detainees at Guantanamo. His communications are “subject to security screening for classified information and other security risks.”
That prompted Breyer to add, “I don’t understand why he’s still there after 14 years,”
Fletcher said the government would submit a “direct answer” to the question.
Sotomayor also jumped in. “We want a clear answer, are you going to permit him to testify as to what happened to him? “she asked. “Yes or no.”
“We’d be happy to respond,” Fletcher said.