A Muslim terrorist’s lawyer asked the Supreme Court to allow his client to depose two former Central Intelligence Agency contractors about waterboarding at CIA black sites in connection with a Polish criminal investigation into that nation’s involvement in the CIA’s clandestine detention and interrogation program.
Zayn al-Abidin Muhammad Husayn, 50, also known by his nom de guerre, Abu Zubaydah, was “an associate and longtime terrorist ally of Osama bin Laden,” according to the government.
Respondent Zubaydah is “the first high-value terrorist captured after the 9/11 attacks,” according to the American Enterprise Institute (AEI). According to the Office of the Director of National Intelligence, “Although he never pledged bay’ah [loyalty] to Usama bin Ladin, Abu Zubaydah functioned as a full member of al-Qa’ida and was a trusted associate of al-Qa’ida’s senior leaders.”
He is being held at the U.S. detention center at Guantanamo Bay Naval Base in Cuba. The government has refused to make the high-profile detainee available to provide evidence about his alleged torture by the CIA to assist the Polish investigation, asserting that doing so could undermine U.S. national security.
The case is United States v. Zubaydah, court file 20-827.
At oral arguments on Oct. 6, Acting Solicitor General Brian H. Fletcher appeared for the government; attorney David F. Klein appeared for the respondent. Justice Brett Kavanaugh, who has been diagnosed with COVID-19, participated in the in-person hearing by telephone.
Klein summed up his client’s position for the justices.
“What he does need to know is what happened inside Abu Zubaydah’s cell between September 2002 and September 2003, so I want to ask simple questions, like how was Abu Zubaydah fed? What was his medical condition? What was his cell like? And yes, was he tortured?”
Replying to Justice Elena Kagan, Fletcher said the government’s decisions concerning U.S. security must be respected.
“Predictive national security judgments, I think, deserve deference no matter how great the showing of necessity.”
The CIA captured Zubaydah in Pakistan in 2002 and detained him until 2003 as an enemy combatant in Poland. The U.S. Court of Appeals for the 9th Circuit found that two now-former CIA contractors, James Elmer Mitchell and John Jessen, exposed him to “enhanced interrogation techniques,” which the European Court on Human Rights held constituted torture. He was later sent to Guantanamo, Ballotpedia summarizes.
In 2017, Zubaydah figured in a Polish criminal investigation into CIA practices. He asked a U.S. district court to force the U.S. government to produce evidence provided by Mitchell and Jessen but the government argued against this, saying some of the documents contained state secrets and were privileged. The district court ruled for Zubaydah, finding the government was worrying about a hypothetical and could bring the issue up later in the proceedings.
When the two ex-contractors were subpoenaed, the government tried to cancel the subpoenas, citing U.S. v. Reynolds (1953), in which the Supreme Court laid out criteria under which courts may block the revelation of state secrets and dismiss cases if U.S. national security interests are deemed to be at stake. The district court threw out the subpoenas, and the 9th Circuit agreed with it that the government’s state secrets privilege applied to some of the requested information. But the circuit court found that the district court made a mistake by striking the subpoenas in their totality instead of allowing limited discovery and access to information not considered privileged.
Justices pressed Fletcher about the government’s decision to keep Zubaydah out of the courtroom.
Referring to Zubaydah, Justice Neil Gorsuch asked, “Why not make the witness available?”
“What is the government’s objection to the witness testifying in his own treatment and not requiring any addition from the government of any kind?”
Justice Stephen Breyer questioned why the detainee is still being held at Guantanamo.
“I don’t understand why he is still there,” he said.
Fletcher told the court larger issues are at stake.
“Our nation’s covert intelligence partnerships depend on our partners’ trust that we will keep those relationships confidential. Respondents seek discovery that would compel a breach of that trust by confirming or denying the existence of an alleged CIA facility in Poland … not to vindicate any rights under U.S. law but instead in a discretionary … application aimed at sending evidence abroad to a foreign investigation whose very purpose is to reveal and prosecute the alleged involvement of Polish officials in covert CIA activities.
“The CIA director explained why that compelled disclosure would seriously harm the national security,” Fletcher said. “The 9th Circuit should have afforded deference to that expert judgment.”