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The Supreme Court heard oral arguments on Wednesday on whether the US government can be compelled to disclose information about the alleged torture of a detainee suspected of being an Al Qaeda agent, or whether certain details need to be remain protected as state secrets.
Zayn al-Abidin Muhammad Husayn, commonly known as Abu Zubaydah, is currently being held in Guantanamo Bay, Cuba, while Polish authorities investigate the circumstances of his arrest and detention. His attorneys have requested a subpoena for testimony and documents from former CIA contractors who conducted “enhanced interrogation” on a “black site.” But while the federal government claims it cannot release certain information due to the risk of revealing state secrets, Judge Neil Gorsuch asked why he couldn’t just ask Abu Zubaydah himself.
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“Why not make the witness available?” Gorsuch asked as Acting Solicitor General Brian Fletcher was about to begin his rebuttal towards the end of the morning’s arguments. “What is the government’s objection to the witness giving evidence of his own treatment, and not requiring any admission from the government of any kind?”
Fletcher said that because Abu Zubaydah is being held at Guantanamo, he is subject to various communication limitations and security checks like everyone else there.
“That doesn’t really answer my question, I don’t think so,” Gorsuch said. “I ask much more directly: will the government make the petitioner available to testify on this subject?
Fletcher said they would be open to it, “on the same terms as anything else.”
FILE – This undated file photo provided by United States Central Command shows Abu Zubaydah, date and location unknown. The Supreme Court has heard arguments over the government’s ability to keep what it says are state secrets from a man tortured by the CIA after 9/11 and now being held at the Guantanamo Bay detention center. (US Central Command via AP, file)
(US Central Command via AP, file)
This prompted Judge Stephen Breyer to say that he does not understand why Abu Zubaydah is still being held after 14 years, but that a request for an exception could perhaps be made in this situation.
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“You want to ask what happened? Ask him what happened. And maybe it is special,” he suggested.
Fletcher again stated that Abu Zubaydah was subject to protection orders while in detention. Gorsuch said he was aware of this, but wanted a clear answer to his question.
“Will the government make the petitioner available to testify about his treatment during these dates?” “
Fletcher said he could not currently say yes because the request was not made. Gorsuch asked in disbelief how, after years of litigation all the way to the Supreme Court, no one considered making a request that could have solved the problem. Fletcher said any testimony from Abu Zubaydah would still be subject to privilege.
The information in question concerns the treatment to which Abu Zubaydah was subjected at one point in time. The US government has not confirmed certain details, saying it will reveal state secrets. But the European Court of Human Rights found in 2015 that he had been detained in Poland at one point, which was also reported by Polish journalists and officials. According to the decision of the Ninth Circuit Court of Appeal which authorized certain disclosures, it is “not disputed” that Abu Zubaydah was subjected to interrogation techniques, including waterboarding, placed in a box of the size of a coffin and deprived of sleep.
While information on Abu Zubaydah’s treatment has been reported by “[n]from many sources, ”according to the Ninth Circuit, the United States has not confirmed this and refuses to relay information on how it has treated Abu Zubaydah.
Given the amount of information already known about the situation, there were several questions about what exactly Abu Zubaydah’s lawyers wanted from the United States. government concerns but does not solve the problem.
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Abu Zubaydah’s attorney David Franklin Klein then said they just needed information on how he was treated, including how he was fed, what condition he was in and what condition he was in. he had been tortured or not. Klein later added that they had to place the treatment within a specific time frame.
The pleadings were conducted in person in the Supreme Court building, unlike the two previous terms in which pleadings were conducted by teleconference. Judge Brett Kavanaugh did participate by phone, however, as he is in quarantine after testing positive for coronavirus.
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