Supreme Court skeptical of Guantanamo detainee's request seeking details on CIA 'black sites'

• Abu Zubaydah was apprehended in 2002, thought to be part of al-Qaida.
• In 2010, Zubaydah filed a criminal complaint in Poland, wanting officials held responsible for his detention.
• His Supreme Court case hinges on state secrets privilege.

WASHINGTON – A Supreme Court case questioning whether a Guantanamo Bay detainee may subpoena two former CIA contractors involved with his detention at a "black site" took an unexpected turn during oral arguments Wednesday toward broader questions about the 19-year-old military prison in Cuba.

Abu Zubaydah, who has been held at Guantanamo since 2006, wants to subpoena the former CIA contractors who developed the program of waterboarding, sleep deprivation and other techniques used by President George W. Bush's administration in overseas facilities following the 2001 terrorist attacks. The Biden administration says the information Zubaydah seeks would reveal state secrets. 

Several of the conservative justices signaled they were skeptical of Zubaydah's argument, and quizzed his attorney to explain what he hoped to achieve with the testimony. But a number of justices also pressed the government on allowing Zubaydah to testify as part of a Polish inquiry into the CIA program in that country.      

After more than an hour of argument, and just as an attorney for the Biden administration was preparing to close his presentation with a brief rebuttal, Associate Justice Neil Gorsuch launched into a series of questions on whether the Biden administration would allow Zubaydah to testify – and if not, why not. 

"Why not make the witness available? Gorsuch asked. "I'd just really appreciate a straight answer to this: Will the government make petitioner available to testify as to his treatment during these dates?"

That prompted Associate Justice Stephen Breyer to raise a more fundamental question of "why he's still there after 14 years."

Associate Justice Sonia Sotomayor jumped in next.

"We want a clear answer: Are you going to permit him to testify as to what happened to him (on) those dates without invoking a state secret or other privilege?" she asked. "Yes or no?"

The exchange was unusual and touched on questions that, while not directly at stake in the case, are simmering just below its surface. Zubaydah's attorneys say prosecutors in Poland who are investigating the CIA program had sought Zubaydah's testimony but said the U.S. government refused to let him testify. The government's attorney, Brian Fletcher, told Gorsuch he would consult with the administration.

"I cannot offer that now because that's a request that has not been made," Fletcher said. 

Learn more:What to know about the Supreme Court and what to expect in its new term

How state secrets may play into the case 

Partly at issue in the case is whether the government may assert the state's secrets privilege – and withhold evidence in court – over information that is no longer a secret. Zubaydah's lawyers say the existence of the CIA's former overseas prisons is well known, and they point to a Senate Intelligence Committee report in 2014 that concluded "CIA detainees were tortured." One of the contractors Zubaydah wants to subpoena, James Mitchell, published a book about his experiences five years ago. 

But two presidential administrations have asserted those revelations are not the same thing as official word from the government. An official confirmation, the administration says, could undermine the nation's ability to secure cooperation from foreign governments in the future if their leaders fear those arrangements would later be disclosed.

"This looks like a breach of trust if it goes forward," Fletcher told the court.  

The point Gorsuch, Breyer  and some of the others were making was that allowing Zubaydah to testify could resolve the legal issue at the heart of his challenge to the state secrets privilege, providing what Gorsuch called an "off ramp." Zubaydah's testimony would provide the evidence sought by the Polish inquiry but it would not require a formal confirmation by the United States of the black sites or the interrogation program that many have condemned as torture. 

Associate Justice Brett Kavanaugh, taking part in the arguments remotely after a positive COVID-19 test last week, asked whether the United States was still "engaged in hostilities" against Al Qaeda under the authorized use of force approved by Congress in 2001. The question is an important one because the government says it draws its authority to operate the Guantanamo facility from that authorization. 

"That is the government's position, that notwithstanding withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with Al Qaeda and therefore that detention under law of order remains proper."

The court's liberal wing appeared the most skeptical of the government's argument but several of them also joined the conservatives in questioning Zubaydah's lawyer, David Klein, to make clear what he hoped would be revealed by the subpoenas. Klein said that Zubaydah didn't intend to question the former CIA contractors about where the interrogation took place but rather what, specifically, happened.   

Zubaydah was picked up by Pakistani authorities working with the CIA in 2002 and was believed to be a high-level member of al-Qaida. The Senate Intelligence Committee found the CIA "significantly overstated" Zubaydah's role in al-Qaida. Zubaydah, the first detainee in the CIA program, was subjected to waterboarding and noise and sleep deprivation, according to the committee report and court documents. He also spent hundreds of hours in a "confinement box," which officials have described as "coffin-sized."

In 2015, the European Court on Human Rights found Zubaydah was detained at a CIA site in Poland and said it was "inconceivable" he was not also tortured there.  

After a federal district court quashed the subpoenas because of the risk that government secrets could be revealed, the California-based U.S. Court of Appeals for the 9th Circuit ordered that the sensitive details be segregated from other information that potentially could be released. The 2-to-1 majority wrote that it agreed much of the information should be kept secret but ruled the district court erred by protecting all of it. 

"The rationale behind the state secrets privilege is to protect legitimate government interests, not to shield the government from uncomfortable facts that may be disclosed or discussed in litigation," Judge Richard Paez wrote in the 9th Circuit ruling in 2019. 

Zubaydah filed a criminal complaint in Poland in 2010, seeking to hold officials responsible for their role in his detention. His request for the subpoenas is tied to that case and his effort to establish the details of the facility – precisely the kind of information that the U.S. government says would undermine national security.

The most on-point Supreme Court case dealing with state secrets was decided in 1953, during the Korean War, when the widows of three civilians killed in a B-29 bomber crash sued the government for damages. The Air Force sought to withhold information about the crash and the Supreme Court reversed a lower court ruling that had required the government to provide the official accident report.  

President Joe Biden's administration announced over the summer that it was restarting the process of releasing Guantanamo Bay prisoners that had been suspended by President Donald Trump. The military announced in July that it had transferred Abdul Latif Nasir to the Kingdom of Morocco.