WASHINGTON — The Supreme Court on Wednesday seemed skeptical of requiring the government to divulge what it says is secret information being sought by a Guantanamo Bay detainee. But in a surprising turn, several justices also raised questions about the man’s rights.
The case the high court was wrestling with involves Abu Zubaydah, who was captured in Pakistan in 2002 following 9/11 and thought at the time to be a high-ranking member of al-Qaida. Zubaydah and his lawyer want to question two former CIA contractors about Zubaydah’s time at a secret CIA facility in Poland where they say he was held and tortured. The information would be used as part of a criminal investigation in Poland.
Zubaydah’s treatment at the hands of the CIA has become public through a variety of sources including the media and a congressional report. But the federal government has stopped short of acknowledging the locations of so-called CIA black sites set up after 9/11 to gather intelligence about terrorist plots against Americans. The government has cited national security and commitments to the United States’ foreign partners.
A number of the justices asked Zubaydah’s lawyer why, if so much information is public about Zubaydah’s time at CIA black sites in Thailand and Poland, he needs the testimony of the former CIA contractors. “What do you need them for?” Justice Amy Coney Barrett asked at one point.
At the end of the argument, however, Justice Neil Gorsuch raised a different solution: why not let Zubaydah provide information to Polish officials about his own treatment? Gorsuch and Justice Sonia Sotomayor told government lawyer Brian H. Fletcher they want a clear answer about whether the Biden administration would allow that.
Fletcher said Zubaydah is not being held “incommunicado,” though his communications are screened for classified information. He suggested he would get Gorsuch and Sotomayor an answer.
Sotomayor and Gorsuch weren’t the only ones expressing concerns about Zubaydah. Justice Stephen Breyer, for his part, questioned his continued detention at Guantanamo, which the Biden administration has said it will close. “I don’t understand why he’s still there,” Breyer said at one point.
The Supreme Court last addressed the detention of Guantanamo prisoners in 2008, ruling they have a right to challenge their detention in U.S. courts. Most of the 39 men still held there have never been charged with a crime.
Zubaydah was the first person in the CIA’s new detention and interrogation program following 9/11. He spent four years at CIA black sites before being transferred to Guantanamo Bay in 2006. According to a 2014 Senate report on the CIA program, among other things Zubaydah was waterboarded more than 80 times and spent over 11 days in a coffin-size confinement box. The extreme interrogation techniques used as part of the program are now widely viewed as torture.
Zubaydah is seeking information from former CIA contractors James Mitchell and John “Bruce” Jessen, who are considered the architects of the CIA’s interrogation program.
Zubaydah and his attorneys note that Mitchell and Jessen have testified twice before in other situations, including hearings at Guantanamo, and that Mitchell wrote a book about his experience. They say they want nonprivileged information from the men such as the details of Zubaydah’s “torture in Poland, his medical treatment, and the conditions of his confinement.”
The Biden administration, like the Trump administration before it, says the information should not be disclosed.
A federal court initially ruled that Mitchell and Jessen shouldn’t be required to provide any information. But an appeals court ruled 2-1 that the lower court made a mistake in ruling out questioning entirely before attempting to separate what can and can’t be disclosed.
The government says in its briefs before the Supreme Court that Zubaydah was “an associate and longtime terrorist ally of Osama bin Laden.” Zubaydah’s lawyers say the CIA was mistaken in believing he was a high-ranking member of al-Qaida.