Thursday, October 7, 2021

An odd State Secret judgement is at the Supreme Court

I find this odd. Below I will pull a couple of beginning paragraphs from the Brief from the Center on National Security at Fordham Law (literally across the street from us), But here are the basics, Abu Zubaydah was thought to be a high-ranking al-Qaeda member when he was capture in 2002 (19 years ago).

To get information out of him, he was sent to a "black site" in Poland where he was tortured, including being waterboarded 83 times. All of this has been acknowledged unofficially over a decade ago in both Poland and the US Press.. But in a  current trial in Poland, the United States refuses to acknowledge this, claiming state secrets. An interesting question arises therefore: can the United States claim state secrets when the item is no longer secret. It is an interesting case about government culpability. 

Current Supreme Court Justices (albeit the liberals + John Roberts) seem to punt on this, but did question why Abu Zubaydah himself isn't allowed to testify. He could, they postulated, testify only what happened to him, but not about the site.

It is interesting. The first two paragraphs below, the rest after the jump.


The Supreme Court on Wednesday seemed skeptical of requiring the U.S. government to divulge what it says is secret information being sought by a Guantanamo Bay detainee. But several justices also raised questions about the rights of the detainee, Abu Zubaydah, who was tortured by the CIA abroad and has been detained for nearly two decades. Zubaydah was thought to be a high-ranking member of al-Qaeda when he was captured in Pakistan in 2002, but the CIA later concluded this notion was wrong. Zubaydah and his lawyer want to question two former CIA contractors about his detention and alleged torture at a secret CIA facility in Poland as part of an ongoing Polish investigation into his time there. A federal judge in California in 2017 blocked Zubaydah from questioning the former CIA contractors. The U.S. Court of Appeals for the 9th Circuit remanded that ruling in 2019, saying some of the information was no longer secret, prompting the government to appeal.

The fact that Zubaydah was held at so-called CIA black sites in both Thailand and Poland has been widely reported, and the U.S. government has allowed the disclosure of information about how he was treated. But the government has stopped short of acknowledging the locations of the black sites set up after 9/11, citing national security and its commitments to foreign partners. Zubaydah’s lawyer, David Klein, told the court that the location of the CIA’s black sites is no longer a secret, and that he is not planning to ask the former contractors to confirm the location.

Several justices on Wednesday questioned why Zubaydah shouldn’t get access to at least some testimony from the former CIA contractors. “It seems to me there may be a lot that they can talk about” that has “nothing to do with the actual location at which events occurred,” Chief Justice John Roberts said. But other justices also asked Zubaydah’s lawyer why, if so much information is public, the testimony of the former CIA contractors is necessary. “Why do you need additional testimony?” Justice Clarence Thomas asked. At the end of the argument, however, Justice Neil Gorsuch proposed letting Zubaydah provide information to Polish officials about his own treatment. “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?” Gorsuch said.

Gorsuch and Justice Sonia Sotomayor told government lawyer Brian H. Fletcher they want an answer about whether the Biden administration would allow that. “We want a clear answer, are you going to permit him to testify as to what happened to him [on] those dates without invoking a state secret or other privilege? Yes or no,” Sotomayor said. Fletcher suggested he would provide an answer in a court filing at a later date. But he also said Zubaydah is not being held “incommunicado,” as his lawyers contend. The court will issue a decision by the end of June. Associated Press, New York Times, Washington Post 

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