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SCOTUS Lets “State Secrets” Privilege Bar CIA Contractor Testimony About Torture Already Publicly Known

by Mark Wilson

Saying that “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege,” the U.S. Supreme Court agreed with Department of Justice (DOJ) lawyers on March 3, 2022, blocking CIA contractors from testifying about brutal torture that a terror suspect suffered at a secret agency prison in Poland — even though it has been the subject of publicly available reports, books and movies.

The suspect, Abu Zubaydah, was shot and captured by U.S. forces in Pakistan in 2002, when American officials believed that Zubaydah was a close associate of Osama bin Laden — a charge that University of San Francisco political philosopher and writer Rebecca Gordon calls false. Nonetheless he was subject to the CIA’s “extraordinary rendition” program and confined at a secret site in Poland, where he became the first known victim of a brutal “information extraction” program.

Strapped to a board, water was poured into his mouth and nose to simulate drowning, a torture technique known as “waterboarding” that Zubaydah was subjected to 83 times in one month, according to the Senate Select Committee on Intelligence. He was also hung naked from hooks in the ceiling, buried alive in a tiny coffin for 11 days, slapped and thrown against a wall, deprived of sleep for 11 consecutive days, force-fed through his anus in another technique known as “rectal rehydration,” and beaten so badly that he lost an eye.

Once that torture failed to bear any informative fruit, Zubaydah was moved to the U.S. detention camp at Guantanamo Bay, Cuba, in 2006, where he has remained ever since. He was never charged or given any opportunity to speak about what happened to him.

In 2010, Zubaydah’s lawyers filed criminal complaints in Poland and the European Court of Human Rights, seeking to expose the torture he suffered. When a Polish prosecutor asked Zubaydah to submit evidence, his lawyers filed an ex parte application for discovery in federal court for the Eastern District of Washington, seeking testimony from CIA contractors James Mitchell and John “Bruce” Jessen — who designed the interrogation system used on Zubaydah — under a federal law that authorizes testimony needed by a “foreign or international tribunal.”

Mitchell and Jessen did not object, but DOJ — by then under the administration of former Pres. Donald J. Trump (R) — intervened, invoking the state secrets privilege. The district court dismissed the case on that basis.

The U.S. Court of Appeals for the Ninth Circuit reversed, however, holding that the state secrets privilege did not apply to information that was no longer secret. Trump administration lawyers appealed, arguing that U.S. authorities have never admitted to operating secret prisons in Poland — even though a former Polish president previously confirmed the existence of the CIA’s “black” sites in his country.

Led by Justice Stephen Breyer, the Supreme Court’s majority agreed with the government, concluding it could “significantly harm national security interests” if the CIA contractors testified that the U.S. confined and tortured people in Poland, “even if that information has already been made public through unofficial sources.”

Three justices dissented, including Justices Elena Kagan and Neil Gorsuch, who would remand the case to the Ninth Circuit to rely on “familiar judicial tools” like code names to prevent “inadvertent disclosure” of protected information. Gorsuch, joined by Justice Sonia Sotomayor, also declared the case was about shame, not secrets.

 “We know already that our government treated Zubaydah brutally,” Gorsuch wrote. “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.” See: United States v. Zubaydah, 142 S. Ct. 959 (2022).

The decision was decried as “wrong and dangerous” by the American Civil Liberties Union’s National Security Project. “U.S. courts are the only place in the world where everyone must pretend not to know basic facts about the CIA’s torture program,” declared ACLU attorney Dror Ladin. “It is long past time to stop letting the CIA hide its crimes behind absurd claims of secrecy and national security harm.”

Since a majority of the justices suggested that Zubaydah’s torture was not a state secret, even if the location of the torture was, Cornell law professor Joseph Maguilies, who represented Zubaydah, said the legal team was “weighing our options in light of that recognition.” 

Additional source: Los Angeles Times

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Related legal case

United States v. Zubaydah