“Will the government make Petitioner available to testify as to his treatment during these dates?” asked Gorsuch, who was seconded at oral argument in the case by Justice Sonia Sotomayor. Justice Stephen G. Breyer already had raised the idea of letting the “eyewitness” testify to what happened in Poland. Additionally, Breyer raised another issue: Why is the prisoner, who goes by the nom de guerre Abu Zubaida, or Abu Zubaydah, still being held at Guantánamo Bay, one of 39 remaining detainees?
Acting solicitor general Brian H. Fletcher appeared taken aback by the question of Abu Zubaida testifying, saying the authority to make such an offer was above his pay grade.
“Because this is not an issue that has been in this litigation up until now, I’m not prepared to make representations for the United States especially on matters of national security,” Fletcher said. But he promised to get the court an answer.
It was one way out of a complicated case that several justices freely said puzzled them: whether the government can claim a state-secret privilege to information that has been widely reported in the media and acknowledged in an official congressional report.
The government still contends Abu Zubaida is a terrorism suspect and was a close ally of Osama bin Laden. But he denied ever being an al-Qaeda leader, and it seems clear now he was not nearly the prize the U.S. thought when he was captured in 2002.
What is known is that he was held at so-called “black sites” in Thailand and Poland and extensively tortured: he was subjected 83 times to waterboarding, a technique that leads victims to believe they are drowning. He lost an eye. He has testified that he was told by doctors he nearly died four times.
He and his lawyer are seeking information for prosecutors in Poland who are investigating whether any of that happened in their country. Abu Zubaida’s lawyer wants to question two CIA contractors, James Mitchell and John “Bruce” Jessen, about the “enhanced interrogation tactics” that were used.
A district judge dismissed the case, but a divided U.S. Court of Appeals for the 9th Circuit said the judge did not do enough to untangle information that could be revealed and that which the government legitimately could withhold.
As one judge put it, before there can be a state secret there must be something that remains secret.
At the Supreme Court, the justices asked Fletcher how the government could invoke the state secrets privilege, which the court first recognized in the 1950s, on information already known.
But on the other hand, they wanted Abu Zubaida’s representative at the court, David F. Klein, to explain why he needed to give the Polish investigators more than he already had.
Fletcher said information previously released about the CIA’s program was carefully negotiated between the executive and legislative branches, and the location of detention sites and what went on there were not part of that. Those sites were established, he said, with the promise that they would not be officially revealed by the United States.
“Our nation’s covert intelligence partnerships depend on our partners’ trust that we will keep those relationships confidential,” Fletcher said.
He noted Abu Zubaida and his attorney Joseph Margulies seek the information not to vindicate any rights under U.S. law but to “send evidence abroad to a foreign investigation whose very purpose is to reveal and prosecute the alleged involvement of Polish officials in covert CIA activities.”
But Justice Elena Kagan noted the “farcical” aspect of talking about Poland without acknowledging the facts Abu Zubaida wants to get on the record. “Maybe we should rename it or something. It’s not a state secrets privilege anymore,” she said.
Breyer questioned whether courts simply had to accept government decisions over the disclosure of information. Former CIA director Mike Pompeo invoked the privilege over what was sought in this case.
“Does the court have no way of getting such information?” he asked.
Breyer also had a broader concern about Abu Zubaida’s confinement at Guantánamo Bay: “Why is he there?”
Klein replied his client has not been charged in 20 years of captivity, and “there has been a habeas proceeding pending in D.C. for the last 14 years.”
For his part, Klein said he did not need to ask the CIA contractors specifically whether there was a detention site in Poland.
“The Polish prosecutor already has information about that and doesn’t need U.S. discovery on the topic,” Klein said. “What he does need to know is what happened inside Abu Zubaydah’s cell between December 2002 and September 2003. So 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?”
But Sotomayor said the United States has already denied an official request from Poland for such information. What would make the detainee the right person to obtain it and turn it over, she asked.
Chief Justice John G. Roberts Jr. said courts owe deference on questions of national security to those charged with protecting it.
“As you’ve put it, it’s no secret at all,” Roberts said to Klein. “But you don’t have the United States government acknowledging that. And the United States government says this is critically important because our friends, allies, intelligence sources around the world have to believe that we keep our word, and our word was, this is secret.”
The case is United States v. Abu Zubaydah.