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Can the US shield a ‘state secret’ that’s not a secret? Supreme Court to decide

A guard tower outside the US Military's Prison in Guantanamo Bay, Cuba. (Thomas Watkins/AFP via Getty Images/TNS)

The Supreme Court heard arguments Wednesday in an unusual “state secrets” case as to whether the U.S. government can prevent court testimony that describes the CIA’s brutal treatment of alleged terrorists captured in Pakistan after the Sept. 11 attacks.

This is hardly a secret. Justice Department lawyers agreed it is “public knowledge” that certain “high value” prisoners were held at “black sites” overseas and subjected to so-called enhanced interrogation techniques. Many of these techniques were widely seen as torture.

A former president of Poland even acknowledged the existence of the CIA site there in news interviews. But the Department of Justice lawyers urged the high court to invoke the “state secrets privilege” to block two former CIA contractors from telling Polish prosecutors what happened at the sites, since U.S. officials have refused to confirm their existence.

Acting U.S. Solicitor General Brian Fletcher said it would be a “serious breach of trust” between two allies if the U.S. courts cooperated in confirming the black site was in Poland. He said judges should defer to U.S. officials on matters of national security.

The case of U.S. vs. Abu Zubaydah is a test of how far the high court will go to shield the executive branch — past and present — from accountability in the courts for possible abuses and wrongdoing. In this instance, however, it is a Polish court looking into the allegations of torture.

Some justices wondered how this could be decided as a matter of state secrets.

“At a certain point, it becomes a bit farcical … if everybody knows” the supposed secret, said Justice Elena Kagan. “Maybe we should rename it or something. It’s not a state secrets privilege anymore.”

Abu Zubaydah was shot and captured in Pakistan in 2002, and U.S. officials wrongly believed for a time that he was he was a close associate of Osama bin Laden who could reveal the next plot to attack this country. When he revealed little, he became the CIA’s first victim of its brutal post-9/11 methods for seeking to extract information.

For 83 times in one month, he was strapped to a board while water was poured into his mouth and nose, according to the Senate Select Committee on Intelligence. The aim was to simulate drowning. He was hung naked from hooks on the ceiling, spent 11 days in a tiny coffin, was slapped, thrown against a wall and deprived of sleep for 11 consecutive days. He lost an eye and since 2006 has been locked up at the U.S. military prison at Guantanamo Bay, Cuba, facing no charges but given no opportunity to speak about what happened to him.

The worst moment for the Justice Department lawyer came near the end when Justice Neil M. Gorsuch pressed him to explain why Abu Zubaydah has been denied that right.

“Why not make the witness available?” he asked. “What is the government’s objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?”

In response to Gorsuch, Fletcher said the Guantanamo prisoner could speak about the conditions of his confinement there but not about “classified information” and other matters.

“I’d just really appreciate a straight answer to this,” Gorsuch said. “Will the government make the petitioner available to testify as to his treatment during these dates?”

Fletcher said he could not say. “I cannot offer that now because that’s a request that has not been made.”

Gorsuch said he should check further and submit an answer to the court.

The state secrets privilege is not written in the Constitution or federal law, but the Supreme Court invoked it in 1953 to shield military secrets from being revealed in a lawsuit over the crash of an Air Force plane that was carrying secret electronic equipment. The widows of three men who died had asked to see the accident report. Decades later it was released, and it showed the crash was caused by a fire in one engine and revealed nothing about secret equipment.

The case before the court began in 2010 when lawyers for Abu Zubaydah filed criminal complaints in Poland and before the European Court of Human Rights seeking to expose what happened to him. When a Polish prosecutor asked the Guantanamo prisoner to submit evidence, U.S. officials said he was being held “incommunicado for the remainder of his life.”

His attorneys then went to a federal judge in Washington state, relying on a law that authorizes testimony that is needed by a “foreign or international tribunal,” and sought testimony from the two CIA contractors, James Mitchell and Bruce Jessen, who designed the system of interrogations. The two men did not object, but the Justice Department intervened and invoked the state secrets privilege. The judge dismissed Abu Zubaydah’s case on that basis, but the 9th U.S. Circuit Court of Appeals disagreed in a 2-1 decision and revived the suit.

That his lawyers had to go to a U.S. federal judge to get the testimony drew the attention of several justices. They questioned the need for such judges to take testimony from former CIA contractors, which in turn would be used in a Polish court.

In December, lawyers for the outgoing Trump administration urged the Supreme Court to take up the case. They said judges should defer to the government and should not second-guess the executive branch when it asserts national security is at stake.

Baher Azmy, legal director for the nonprofit Center for Constitutional Rights, said it seemed strange to call this a dispute over national security secrets.

“This case has a Soviet-style ‘show trial’ quality to it,” he said. “They are seeking to dismiss a case because it could reveal secrets that we all know. And they want to make Abu Zubaydah functionally disappear because his story reveals government incompetence, torture and lies.”

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