The Supreme Court on Wednesday seemed ready to reject a Guantanamo Bay detainee's request to subpoena two ex-CIA contractors who performed enhanced interrogations at a CIA black site in Poland.
Lawyers for Abu Zubaydah are fighting the government’s attempt to quash their subpoenas by invoking the state secrets privilege, as many details of Zubaydah’s detention in Poland, which included enhanced interrogation, are already public. But a majority of the Court appeared to credit the government’s fear that the contractors’ testimony will undermine U.S. relationships with overseas partners.
Wednesday’s case raises problems for President Joe Biden, who purported to end "forever wars" in the Middle East. The Justice Department told the Court Wednesday that the government is still engaged in hostilities with al Qaeda and its allies under the 2001 Authorization for the Use of Military Force, the withdrawal from Afghanistan notwithstanding. And the administration is following its predecessors in withholding crucial details of the CIA’s extraordinary rendition and enhanced interrogation programs.
The federal government has acknowledged Zubaydah was subject to enhanced interrogations. Nonetheless, senior officials in three successive administrations have refused to identify the foreign intelligence partners involved or reveal the location of clandestine facilities in Poland.
"It is critical that the CIA preserve the confidentiality of its liaison relationships in order to demonstrate to partner governments that the CIA can be trusted to maintain the secrecy of these agreements," then-CIA director Mike Pompeo wrote in a legal filing at an earlier phase of Wednesday’s case.
Zubaydah is a Palestinian national who was captured in Pakistan in 2002. At the time, U.S. intelligence believed he was a senior al Qaeda officer specializing in logistics and interrogation resistance techniques. One of the first detainees in the extraordinary rendition program, his lawyers say he was held at black sites in Thailand and Poland. In filings before the High Court, they said he was waterboarded and suspended naked from the ceiling dozens of times before he was finally sent to Guantanamo Bay. A 2014 report from the Senate Select Committee on Intelligence raised doubts about his al Qaeda affiliation.
Zubaydah is seeking authorization for his subpoenas under a provision of federal law that allows discovery "for use in a proceeding in a foreign or international tribunal," in this instance an ongoing Polish probe. The government invoked the state secrets privilege to quash the subpoenas. But a three-judge panel of the Ninth U.S. Circuit Court of Appeals said limited discovery should proceed because many facts about Zubaydah’s detention and the CIA’s activities in Poland have already been established.
Lawyers for Zubaydah also emphasized the particulars they seek relate only to his case.
"I want to ask simple questions like, how was Abu Zubaydah fed? What was his medical condition? What was his cell like? And, yes, was he tortured?" said David Klein, a lawyer who represents the detainee before the High Court.
Justices resisted the idea that the contractors’ testimony would be harmless given how much is known about Zubaydah’s case. The chief justice and Justices Clarence Thomas and Amy Coney Barrett pressed Klein to identify what the contractors will add besides the location of overseas black sites and the identities of Polish nationals involved.
"If you don't need them to establish the existence of the site in Poland and you don't need them to establish what happened to him … what do you need them for? To show that it happened in Poland, right?" Barrett asked Klein.
Justice Department lawyer Brian Fletcher added that Zubaydah’s argument and the Ninth Circuit’s decision effectively punishes the government for being transparent in the past.
"This line of argument tries to leverage the government's past disclosures," Fletcher told the Court. "And I think that’s a dangerous thing to do."
In prior cases involving the extraordinary rendition program, courts have used code words to discuss sensitive information without revealing locations or identities. Fletcher said the option isn’t available here.
"You can't take the location out of this proceeding because the whole point of the proceeding is to get evidence for a Polish investigation," Fletcher said. "The evidence wouldn't be relevant unless it had occurred in Poland."
Justices Stephen Breyer and Neil Gorsuch raised the possibility that Zubaydah himself could testify, instead of the contractors. Breyer grilled Klein as to why Zubaydah is still detained at Guantanamo. And Gorsuch pressed Fletcher to inform the Court at some future date whether the government will allow Zubaydah to give a deposition describing his treatment overseas.
A decision in the case, No. 20-827 U.S. v. Zubaydah, is expected by summer 2022.