A surprising proposition to the Supreme Court in a torture case

WASHINGTON – Twenty years after the September 11 attacks, the Supreme Court on Wednesday found itself struggling to resolve two issues related to that period: torture and government secrecy. Before the judges arrived for the day, the proceedings had taken a surprising turn.

The fundamental question for the judges was whether the government could invoke national security to block testimony from two CIA contractors who were instrumental in the brutal interrogations of the detainee known as Abu Zubaydah, who has been drowned more than 60 times and is being held without charge at Guantanamo Bay.

Abu Zubaydah sought to subpoena the contractors in connection with a Polish criminal investigation. The investigation was prompted by a ruling by the European Court of Human Rights that he was tortured in 2002 and 2003 at secret CIA-operated sites, including one in Poland.

The United States government has invoked the doctrine of state secrets to prevent entrepreneurs from testifying in an apparent effort to avoid formally admitting what is common knowledge: that Poland was host to one of the so-called black sites.

Three judges proposed an unprecedented solution: why not let Abu Zubaydah himself testify in the framework of the Polish investigation? By allowing him to describe what he had endured, the judges suggested, the court could sidestep the question of whether the government should allow CIA contractors to appear.

“Why doesn’t he testify? Judge Stephen G. Breyer asked Abu Zubaydah’s attorney. “He was there. Why doesn’t he say that is what happened?

Lawyer David F. Klein said it was not possible. “He was held incommunicado at Guantanamo,” Klein said of his client.

In the final minutes of oral argument, Judge Neil M. Gorsuch urged the government lawyer to allow Abu Zubaydah to testify.

“Why not make the witness available?” Justice Gorsuch asked Brian H. Fletcher, the Acting Solicitor General of the United States. “What is the government’s objection to the witness testifying about his own treatment?” “

Judge Sonia Sotomayor continued on this point. “Are you going to let him testify about what happened to him?” she asked.

Mr. Fletcher would not give a direct answer. “I am not prepared to make representations for the United States, especially on national security issues,” he said.

But he vowed to give the court a more thoughtful response, presumably in a letter, after consulting with other government officials.

Judge Gorsuch seemed exasperated by the government’s position.

“This case has been argued for years and up to the Supreme Court of the United States,” he said, “and you haven’t considered if that’s an exit ramp the government could provide. who would avoid the need for any of this? “

Judge Brett M. Kavanaugh, participating in the argument from a distance after testing positive for coronavirus last week, asked the final question, and it was an even more fundamental question. This was the statute of the 2001 law which approved the war against those responsible for the September 11 attacks, the authorization to use military force, or AUMF.

“Is the United States still engaged in hostilities for the purposes of the AUMF against Al Qaeda and associated terrorist organizations? He asked, inquiring whether the United States still has a base to detain Abu Zubaydah.

Mr. Fletcher said yes. “It is the government’s position,” he said, “that despite the withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with Al-Qaeda and therefore that detention under the law of war remains appropriate.

Much of Wednesday’s argument was devoted to whether the government could use the doctrine of state secrets to prevent CIA contractors James E. Mitchell and Bruce Jessen from testifying about the torture of Abu Zubaydah, whose real name is Zayn al-Abidin. Muhammad Hussein.

He was the first prisoner held by the CIA after the 9/11 attacks to undergo so-called improved interrogation techniques, based on a list of suggestions developed for him by psychologists Dr Mitchell and Dr Jessen. It is not disputed that Abu Zubaydah was tortured at one or more black sites, and the judges frequently used the word “torture” to describe what he had endured.

Mr Fletcher said Abu Zubaydah’s treatment was no secret, but his location was. “Our country’s secret intelligence partnerships depend on the confidence of our partners that we will keep these relationships confidential,” he said.

That trust would be shattered, he said, by confirming or denying the existence of a suspected CIA installation in Poland.

This gave rise to a semantic conundrum. Was it possible to allow entrepreneurs to testify on what had happened but not on where?

Chief Justice John G. Roberts said it seemed entrepreneurs could talk about a lot more than the venue.

Mr. Fletcher disagreed. “You cannot remove the place of this procedure because the purpose of the procedure is to obtain evidence for a Polish investigation,” he said.

Mr Klein, an attorney for Abu Zubaydah, said he did not ask for testimony on Poland because a prosecutor already had the relevant information. Rather, Klein said, he sought to provide the prosecutor with information about his client’s treatment by asking the contractors a series of questions.

“What happened in Abu Zubaydah’s cell between December 2002 and September 2003? he asked, giving the dates when his client would be detained in Poland. “How was Abu Zubaydah fed? What was his state of health? How was his cell? And, yes, was he tortured?

Justice Elena Kagan outlined what she suggested was a flaw in Mr. Klein’s argument.

The government “admitted that Abu Zubaydah was tortured, but, due to allies’ relations with the cooperating intelligence services, they will not say where it happened,” she said. “And you’re here saying, I need to know when that happened, and to know when that happened, the government would basically say where it happened as well.”

Abu Zubaydah, a Palestinian, was captured in Pakistan in March 2002 and was initially considered a high-level member of Al Qaeda. A 2014 report from the Special Senate Intelligence Committee stated that “the CIA later concluded that Abu Zubaydah was not a member of Al Qaeda.”