The Supreme Court on Thursday denied a Guantanamo Bay detainee's bid to subpoena two CIA contractors who allegedly interrogated him at a CIA black site in Poland.
The High Court sided with government officials who warned that Abu Zubaydah's inquiry would compromise U.S. intelligence relationships around the world. Justice Stephen Breyer delivered the Court's decision, which was 6-3. Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, wrote a blistering dissent that accused the Court of shielding the government from "embarrassment for past misdeeds." Justice Elena Kagan wrote a solo dissent.
Thursday's case highlights the difficulties President Joe Biden faces as he purports to move the United States beyond the two-decade War on Terror. Top Biden officials are following their predecessors in withholding key details about Bush-era detention policies and shielding foreign intelligence partners. The president's Supreme Court nominee, Judge Ketanji Brown Jackson, may face questions about her advocacy on behalf of terror suspects at her confirmation hearings in March.
Zubaydah's lawyers sought subpoenas for testimony and documents about the contractors' activities at an alleged facility in Poland. They filed the request under a provision of federal law that allows for discovery "for use in a foreign proceeding," in this case a Polish investigation into CIA activities in that country. The Ninth U.S. Circuit Court of Appeals ruled for Zubaydah and said he could gather information as to the location of the overseas facility where he was held and the techniques used to interrogate him. The federal government appealed to the Supreme Court, saying the location of the site is a protected state secret.
The government must show a "reasonable danger" of harm to national security will result from the disclosure of protected information to prevail on a state secrets claim under the Supreme Court's precedents.
The Court said the government made that showing Thursday, citing a court filing from then-CIA director Mike Pompeo. The director said it will be hard to enlist assistance from foreign intelligence agencies if their cooperation and activities might one day be formally acknowledged by the federal government or its agents.
"In a word, to confirm publicly the existence of a CIA site in Country A, can diminish the extent to which the intelligence services of Countries A, B, C, D, etc., will prove willing to cooperate with our own intelligence services in the future," Breyer wrote of Pompeo's declaration.
The Court acknowledged that many details about Zubaydah's detention are in the public record and that select Polish officials have acknowledged the CIA operated on Polish soil during the War on Terror. But Breyer said testimony from the interrogators would amount to an official confirmation from the U.S. government. And Zubaydah hasn't established that the black site's location is necessary to his lawsuit, Breyer added, such that he could defeat the government's exercise of privilege.
"At oral argument, [Zubaydah] suggested that he did not seek confirmation of the detention site's Polish location so much as he sought information about what had happened there," Breyer wrote.
In a wide-ranging 30-page dissent, Gorsuch argued that the lower courts could carefully supervise testimony and document production from the two contractors and separate relevant evidence from sensitive information behind closed doors. He also said the government hasn't proven a "reasonable danger" to national security because press accounts and investigators in Congress and Europe have developed a thorough account of Zubaydah's detention.
"What was once a secret can, with the passage of time, become old news," Gorsuch wrote.
The justice's dissent included a harsh assessment of the government's conduct in the Zubaydah case. The censure was somewhat surprising because Gorsuch served in a senior position in the George W. Bush Justice Department, where he helped the administration craft litigation positions in detention cases and negotiated with congressional leaders on detainee legislation, according to a New York Times report.
"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,'" Gorsuch wrote. "Further evidence along the same lines may lie in the government's vaults. 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."
Zubaydah, who is still detained at Guantanamo, was captured by Pakistani forces in 2002. U.S. intelligence officials believe he was a senior al Qaeda officer with knowledge of forthcoming attacks and expertise in logistics and resisting interrogation techniques. He was, allegedly, one of the first detainees in the extraordinary rendition program. His lawyers claim he was held at CIA black sites in Thailand and Poland before arriving at the U.S. naval installation in Cuba.
The case is No. 20-827 U.S. v. Zubaydah.
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