The Supreme Court will decide whether a longtime Guantanamo Bay detainee interrogated at CIA black sites around the world should gain access to information about the two men who waterboarded him in the wake of the Sept. 11, 2001, attacks.
Abu Zubaydah, an alleged al Qaeda member and associate of Osama bin Laden who was captured in Pakistan in March 2002, has been held at the U.S. naval base in Cuba since 2006 after having been interrogated at a number of secret CIA locations around the world, including one widely believed to have been in Poland. The Saudi-born terrorist, now 50 years old, sought subpoenas against James Mitchell, a former clinical psychologist at the Air Force survival school, and fellow psychologist, Dr. John “Bruce” Jessen, who worked as CIA contractors to design the agency’s “enhanced interrogation program,” considered by some to be torture, and to help implement it, including waterboarding Zubaydah.
A district court initially sided with the U.S. government in blocking Zubaydah’s legal efforts, but an appeals court partially sided with him, and the Supreme Court announced Monday it would hear the case after the Trump and Biden Justice Departments asked it to intervene, arguing national security would be placed at risk.
Zubaydah obtained a judgment largely in his favor in the European Court of Human Rights in 2015, which detailed allegations that he was held at black sites in Thailand in 2002 and transferred to Poland in late 2002, where he was held into mid-2003, before being sent to other black sites. The Guantanamo detainee sought to use the U.S. courts to gain more information about his detention which, if successful, could affect the long-awaited trial against Khalid Sheikh Mohammed and other al Qaeda members believed to be responsible for the planning of the terrorist attacks that killed 3,000 people.
Judge Justin Quackenbush, nominated to the U.S. District Court for the Eastern District of Washington by President Jimmy Carter in 1980, quashed Zubaydah’s subpoenas against Mitchell and Jessen in February 2018. “Proceeding with discovery would present an unacceptable risk of disclosing state secrets … Upholding the state secrets privilege serves the interests of national security, an important and compelling interest,” he said in the ruling.
But Judge Richard Paez, nominated by President Bill Clinton in 2000, penned a September 2019 opinion for a 9th Circuit Court of Appeals panel, arguing the subpoenas could be legitimate.
“We agree with the district court that certain information requested is not privileged because it is not a state secret that would pose an exceptionally grave risk to national security,” Paez said, adding, “We conclude, however, that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information.”
Circuit Judge Ronald Gould, nominated by Clinton in 1999, dissented, arguing, “The majority jeopardizes critical national security concerns in the hope that the district court will be able to segregate secret information from public information that could be discovered” and that “in this case, I would defer to the view of” former Secretary of State Mike Pompeo.
Pompeo argued in March 2017, when he was still CIA director, that “the TOP SECRET information implicated in discovery … is based primarily on the need for the CIA to keep its commitment or duty of confidentiality to its officers, agents, assets, and foreign liaison officers who assisted the CIA in program-related activities.” He added: “If the Agency breaks its promises of confidentiality, the people and organizations we rely upon to accomplish our mission will be less likely to trust us.”
Mitchell testified during pretrial proceedings at Guantanamo Bay, portraying his decision to work as a CIA contractor as a patriotic duty, but he said he grew disillusioned as CIA higher-ups pushed him to keep waterboarding Zubaydah. He said he was asked to observe interrogations of Zubaydah in April 2002 and to design a new program two months later, and by August that year, he and Mitchell said they were convinced Zubaydah was cooperating.
In a detainee profile, the U.S. government describes Zubaydah as the leader of a “mujahadeen facilitation network” who “took a more active role in attack preparations by sending operatives” to al Qaeda after 9/11. The Democratic-led Senate Intelligence Committee’s interrogation report from 2014 described Zubaydah as “completely unresponsive, with bubbles rising through his open, full mouth” after one waterboarding session.
The full appeals court declined to overturn the appeals panel’s subpoena decision in July 2020, with Paez arguing, “Good grief, the President of Poland publicly acknowledged in 2012 that, during his presidency, Abu Zubaydah was detained in Poland by the CIA.”
But Judge Daniel Bress and 11 others dissented, with the 2019 Trump nominee contending, “The majority’s decision is premised on grave legal errors, conflicts with governing precedent, and poses a serious risk to our national security … The majority opinion treats information that is core state secrets material as fair game in discovery … and it discounted the government’s valid national security concerns.”
The Trump Justice Department, including then-acting Solicitor General Jeffrey Wall, described Zubaydah as “an associate and longtime terrorist ally of Osama bin Laden.” The DOJ filed a petition for a writ of certiorari with the Supreme Court in 2020, arguing in December that “the Ninth Circuit’s multiple errors in this case derive largely from one source: the court’s failure to afford deference to the judgment of the CIA Director regarding the risk of harm to the national security.” Wall wrote that “it blinks reality to believe, as the panel majority apparently did, that the CIA’s foreign intelligence partners would not be deterred from cooperating if their clandestine relationships with the CIA were revealed by former CIA contractors.”
Zubaydah’s lawyer, Joseph Margulies, argued to the Supreme Court in February that, among other harsh techniques used against Zubaydah, “on 83 different occasions in a single month of 2002, he was strapped to an inclined board with his head lower than his feet while CIA contractors poured water up his nose and down his throat, bringing him within sight of death.” He also claimed it was “categorically false” to say his client was an ally and associate of bin Laden. Zubaydah’s attorney argued that “this case presents a particularly poor vehicle for altering, clarifying, or extending the Court’s state-secrets precedents.”
But the Biden Justice Department, led in its filings by acting Solicitor General Elizabeth Prelogar, backed up the Trump DOJ position trying to block Zubaydah, arguing in March that “the Ninth Circuit’s decision reflects a fundamentally misguided approach to national-security litigation that poses significant risks to the Nation’s intelligence capabilities.”
A Biden DOJ footnote also said, “The government’s factual return in Abu Zubaydah’s pending habeas action provides ample evidence — including from his own six-volume diary — demonstrating his terrorist activities and connection with al Qaeda and bin Laden.”
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