The Supreme Court on Thursday rejected a terrorism detainee’s claim that allowing two former CIA contractors to cooperate with an investigation of his torture overseas by the U.S. would not violate official secrets.
The decision came in a lawsuit filed on behalf of Abu Zubaydah, who was transferred to the custody of the Defense Department in 2006 and moved to the US military base at Guantanamo Bay, Cuba, where he remains.
Zubaydah sought to find out more about his treatment, including where he was held and what was done to him before he arrived in Cuba. The CIA captured him in Pakistan 20 years ago, believing he was a high-ranking figure in al Qaeda — a notion the CIA later concluded was wrong, according to a U.S. Senate Intelligence Committee study.
His lawyers said he was held at several secret locations overseas, known as black sites, where during interrogations he was repeatedly waterboarded, slapped and slammed into walls, crammed into a small box, and deprived of sleep for days at a time.
A European court concluded that one of those black sites was in Poland. To help pursue legal claims against current or former Polish officials who he says were complicit in his detention and treatment at a black site in Poland, he sought access to two former CIA contractors, James Mitchell and John Jessen, who devised and helped carry out the torture program.
But both the Trump and Biden administrations moved to block Abu Zubaydah’s efforts to get their testimony, arguing that some information about his treatment remains a state secret, including the names of the countries where CIA black sites were located.
The Supreme Court agreed, by a vote of 7-2.
“The Government here has provided a reasonable explanation of why Mitchell and Jessen’s confirmation or denial of the information Zubaydah seeks could significantly harm national security interests, even if that information has already been made public through unofficial sources,” said Justice Stephen Breyer, writing for the majority.
“The Court condones neither terrorism nor torture, but in this case we are required to decide only a narrow evidentiary dispute.”
Justice Elena Kagan agreed that the state secrets privilege prevents Abu Zubaydah from pursuing his current request, but she said the case should have been sent back to the lower courts to examine whether his request could be narrowed.
Former CIA Director Mike Pompeo said in a court declaration that the agency sought help from foreign governments with a pledge “to keep any clandestine cooperation with the CIA a secret.” Maintaining the confidentiality is critical to the CIA’s ability “to convince foreign intelligence services to work with us.”
Abu Zubaydah’s lawyer, David Klein, had argued that the location of the CIA’s black sites is no longer a secret. The European Court of Human Rights determined that he was moved to Poland in December 2002 and held there for nine months, citing an interview with Poland’s former president, who said officials agreed to let the CIA operate there but denied knowing about any torture.
The Supreme Court’s two dissenters, Neil Gorsuch and Sonia Sotomayor, agreed.
“There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” Gorsuch wrote.
“This case takes us well past that point," he continued. "Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them."
“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 added. "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.”