The Supreme Court said Thursday that the US government can – in the name of national security – shield the testimony of two former government contractors from a terrorism suspect who seeks to use the information in a criminal proceeding abroad.
Abu Zubaydah, who the government says is a former associate of Osama bin Laden, was subject to “enhanced interrogation techniques” in a CIA detention center abroad and is now being held in Guantanamo Bay.
His lawyers want to use the information to hold Polish officials accountable for what Zubaydah says was his unlawful detention and torture in a CIA facility in Stare Kiejkuty, Poland.
In ruling against Zubaydah, Justice Stephen Breyer noted that the “states secrets privilege” permits the government to prevent disclosure of information “when that disclosure would harm national security interests.”
“It stands to reason that a former CIA insider’s confirmation of confidential cooperation between the CIA and a foreign intelligence service could damage the CIA’s clandestine relationships with foreign authorities,” Breyer, the court’s senior liberal justice, said.
Six justices said that the case should be dismissed. Although Justice Elena Kagan agreed with much of the majority’s analysis, she would have sent the dispute back down to the lower court to allow the process to go forward.
Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, dissented and suggested that the government wanted the suit to be dismissed to impede the Polish investigation and avoid “further embarrassment for past misdeeds.”
“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,’” Breyer said.
“But as embarrassing as these facts may be, there is no state secret here,” he stressed, adding that the court’s duty is to “the rule of law and the search for truth.”
The court’s opinion could restrict access to materials, discovery or testimony in future cases that the government claims should be protected by a so-called “states secret” privilege meant to protect national security.
“Today’s ruling will make it much harder, going forward, for victims of government misconduct that occurs in secret to obtain evidence helping to prove that the conduct was unlawful,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
“Although this case, specifically, is a narrow dispute about specific evidence concerning the CIA’s alleged torture of Abu Zubaydah in Poland, it’s likely to have far broader and more troubling ramifications going forward.”
The Biden administration argued that it could block the testimony of the former government contractors even though some of the information Zubaydah seeks is already in the public realm.
The case highlighted continuing terrorism concerns and examined the role courts play balancing national security interests against calls for greater transparency and government accountability.
Zubaydah was captured in Pakistan in March 2002 and his lawyers sought to subpoena two CIA contractors, James Mitchell and John Bruce Jessen, who worked on the CIA program.
In court, the Biden administration, like the Trump administration before it, 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.
Though 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, Brian Fletcher, a government lawyer, 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.”
This story has been updated with additional details Thursday.