The Supreme Court ruled Thursday that the government may invoke the “state secrets” privilege to block former U.S. contractors from testifying about the now well-known waterboarding and torture of prisoners held at CIA sites in Poland.
By a 6-3 vote, the justices said the U.S. government can claim a privilege of secrecy even if there is no secret.
“We agree with the government that sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege,” Justice Stephen G. Breyer said for the court in U.S. vs. Abu Zubaydah. He said it could “significantly harm national security interests” if the former CIA contractors testified that prisoners were held and tortured in Poland, “even if that information has already been made public through unofficial sources.”
In dissent, Justice Neil M. Gorsuch said the case was not about secrets but the government’s wish to “avoid further embarrassment for past misdeeds. 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.’ 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.”
In 1953, the high court first said the government may shut down a lawsuit or shield certain documents from courts in order to protect military secrets. But that doctrine has expanded over time. Moreover, the government argues it deserves the “utmost deference” whenever it claims national security may be at risk if a court case proceeds.
Zubaydah’s case was unusual because the events were long past and the facts were well-known. The key facts “have long been declassified,” Gorsuch wrote. “Official reports have been published, written and movies made about them.”
But six justices said the former CIA contractors may not testify about what happened to Abu Zubaydah because they could confirm the CIA black sites were in Poland. A former Polish president had confirmed that, but U.S. officials have not done so. Justice Sonia Sotomayor joined Gorsuch in dissent, while Justice Elena Kagan said the case should be allowed to proceed by excluding testimony about Poland.
An attorney for the ACLU’s National Security Project called the court’s decision “wrong and dangerous. U.S. courts are the only place in the world where everyone must pretend not to know basic facts about the CIA’s torture program. It is long past time to stop letting the CIA hide its crimes behind absurd claims of secrecy and national security harm,” attorney Dror Ladin said.
Cornell law professor Joseph Maguilies, who represented Zubaydah, said a majority of the justices suggested his treatment was not a state secret, even though the location was. “We are weighing our options in light of that recognition,” he said.
Still pending before the court is a state secrets case that arose in Orange County, California. The justices will decide whether several Muslim men may proceed with a suit against the FBI for the secret surveillance of their mosques in the years after the 9/11 attacks. Government attorneys said the suit must be dismissed because the basis for the surveillance is a secret.
Abu Zubaydah was shot and captured in Pakistan in 2002, and at the time, U.S. officials wrongly believed 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.
He was strapped to a board 83 times in a month 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.
In 2010, lawyers for 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 John “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 held the state secrets privilege should not be interpreted so broadly as to forbid all testimony.
Lawyers for the outgoing Trump administration appealed and argued the case should be dismissed based on the state secrets privilege. They said U.S. authorities had not admitted that the CIA had secret prisons in Poland.
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