WASHINGTON — The Supreme Court heard the government’s plea on Wednesday to prevent Central Intelligence Agency contractors from testifying about the brutal interrogation program they oversaw at a “black site” in Poland.
Some judges have offered an alternative: Could the government allow Abu Zubaydah, the detainee who claims to have been tortured, to testify instead?
The question, which the government lawyer was unable to answer immediately, put a dramatic end to an argument that several judges said was riddled with legal fictions, including that the location of ‘a black site was secret or that the United States continued to be at war in Afghanistan despite the withdrawal of all American forces in August.
Wednesday’s case is one of many legal fallout from the September 11, 2001 terrorist attacks, unorthodox legal positions, and intelligence tactics adopted by the United States in response. Zayn al-Abidin Muhammad Husayn, whose nom de guerre is Abu Zubaydah, was captured in Pakistan in March 2002. According to the European Court of Human Rights, he was then taken to black sites in Thailand and Poland .
The CIA transferred him to the Guantanamo military prison in September 2006, following a United States Supreme Court ruling that the Geneva Convention’s minimum standards of humane treatment applied to all American inmates. He remains among 39 detainees at Guantanamo and has not been charged with a crime.
In 2010, Zubaydah’s lawyers filed a lawsuit in Poland, alleging that the Polish authorities were complicit in his torture. This litigation eventually led to the United States, where Mr. Zubaydah sought depositions from James Mitchell and Bruce Jessen, CIA contractors who devised an interrogation regime that included waterboarding, crushing walls and “rectal rehydration”.
MM. Mitchell and Jessen have already testified about the interrogation program, and Mr. Mitchell has written a book called “Enhanced Interrogation.” The US government, however, opposed the depositions, saying the men’s testimony could reveal a state secret: not torture, which is described in declassified CIA documents and a Senate Intelligence Committee report, but the presence of the black site in Poland.
Since the location of the black site is so widely known, Judge Elena Kagan asked if it was a state secret. “At some point it gets a little ridiculous” to make such an argument, she said.
Government attorney Acting Solicitor General Brian Fletcher told the CIA the question was not whether the information was secret, but rather whether its disclosure in the context of the Zubaydah case could harm to national security. He suggested that the CIA’s contacts in foreign intelligence services could be upset if Messrs. Mitchell and Jessen were scheduled to testify, although Polish authorities acknowledged their collaboration with the American interrogation program.
In asserting the privilege of state secrets in 2017, then CIA Director Mike Pompeo “explained that the agency’s relationship with its foreign intelligence partners is really a generational relationship” that depends on. ” assurance that we will maintain confidentiality even if other parts of the foreign government later take a different point of view, ”Mr. Fletcher said.
Mr Zubaydah’s lawyer David Klein told judges they would only ask Messrs. Mitchell and Jessen what had been done to Mr. Zubaydah, not where it had been done. “I don’t intend to ask, ‘Did this happen in Poland? “The Polish prosecutor already has information on this subject and does not need an American discovery on the subject,” he declared.
Justice Clarence Thomas asked why the depositions were necessary, since the facts were not really secret. “It seems you are looking for more information to link it to Poland,” he said.
Judge Stephen Breyer suggested that Mr. Klein might get information about what happened at another witness’s black site. “Why don’t you ask Mr. Zubaydah? Why doesn’t he testify? asked Judge Breyer. “Isn’t he your client?” His name is on this thing.
“Because he is being held incommunicado” at Guantanamo, Klein said.
Judge Breyer recalled the 2004 court ruling in Hamdi v. Rumsfeld, when he approved the detention of prisoners during “active combat operations against Taliban fighters [that] are apparently underway in Afghanistan.
“Well, they’re not anymore,” Justice Breyer said. “So why is he here?” “
“It’s a question for the government,” Klein said.
When Mr. Fletcher intervened for his rebuttal, Judge Neil Gorsuch followed through. “Why not make the witness available?” ” He asked. “What is the government’s objection to the witness giving evidence of his own treatment and not demanding any admission from the government of any kind?”
“Without the government invoking a state secret for the testimony,” added Judge Sonia Sotomayor.
Mr Fletcher said the possibility for Mr Zubaydah to testify had never been raised before in the context of the litigation. But in light of Judge Gorsuch’s question, “we would be happy to respond,” he said.
Judge Brett Kavanaugh, who last week tested positive for Covid-19 and participated by phone, had one final question. “Is the United States still engaged in hostilities” that Congress authorized following the September 11 attacks? He asked.
“This is the government’s position, despite the withdrawal of troops from Afghanistan,” Fletcher said. “We continue to be engaged in hostilities with Al Qaeda and therefore this detention under the law of war remains appropriate. “
A ruling in the US case against Abu Zubaydah is expected before July.
Write to Jess Bravin at [email protected]
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