GITMO Detainee’s Search for Black Site Info Blocked by State Secrets Privilege

WASHINGTON — The federal government’s national security interests pre-empt a Guantanamo Bay detainee’s right to compel testimony from two CIA contractors that he says will prove he was tortured while in U.S. custody, a divided Supreme Court ruled on Thursday.

Writing for the majority, Justice Stephen Breyer took pains to state that the ruling only pertained to specific discovery requests detainee Abu Zubaydah made in the underlying lawsuit, and was not a judgment of his guilt or innocence of terrorist activity or his treatment while in custody.

“Obviously the court condones neither terrorism nor torture, but in this case we are required to decide only a narrow evidentiary dispute,” Breyer wrote.

The ruling, however, has broad implications because it allows the government to withhold information about its use of alleged “black sites” in foreign countries to hold and question alleged enemy combatants in the wake of the Sept. 11, 2001, terrorist attacks.

Zubaydah  was captured by the Pakistani government in March 2002, and transferred to a detention site in an unknown country. There, Zubaydah says, he was subjected to “enhanced interrogation” techniques such as waterboarding.

He was later transferred to a second detention site that he believes was in Poland. He was sent to the Guantanamo Bay detention center in 2006, and he remains there today.

Zubaydah filed the underlying criminal complaint in Poland in 2010, in a bid to hold Polish nationals accountable for mistreatment he says he received at a CIA site located in the country.

In the years since the lawsuit was filed, the U.S. has repeatedly denied requests from Polish prosecutors for information that might verify Zubaydah’s claims.

Specifically, Zubaydah sought information from contractors James Mitchell and John Jessen, who designed and implemented the post-Sept. 11 interrogation program, that he hoped would shed light on his treatment while at the site in 2002 and 2003.

The CIA contends an official confirmation from contractors would damage the CIA’s clandestine relationships with foreign authorities. 

The Supreme Court agreed, concluding that any discovery — even of publicly verifiable facts — would directly confirm or deny the existence of a CIA detention site in Poland, and as a result, such an inquiry would pose a danger to national security interests. 

“In a word, to confirm publicly the existence of a CIA site in country A, can diminish the extent to which the intelligence services of countries A, B, C, D, etc., will prove willing to cooperate with our own intelligence services in the future,” Breyer wrote.

But even the majority had differing opinions on various aspects of the case. Though six justices ruled that Zubaydah’s discovery request should be thrown out, only Chief Justice John Roberts joined Breyer’s opinion in full.

Justices Brett Kavanaugh, Amy Coney Barrett, Elena Kagan, Samuel Alito Jr. and Clarence Thomas all declined to join in portions of the opinion.

Thomas wrote a concurring opinion that Alito joined; Kavanaugh wrote a concurring opinion that Barret joined; and Kagan filed an opinion that concurred in part and dissented in part.

Justice Neil Gorsuch filed a dissenting opinion in which Justice Sonia Sotomayor joined.

In that dissent, Gorsuch suggested the government wanted the case to go away to avoid “further embarrassment for past misdeeds.”

“Perhaps at one level this is easy enough to understand,” he continued. “The facts are hard to face. 

“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 wrote. “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.”

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