The Supreme Court ruled Thursday that the government’s national security interests can block a Guantanamo Bay detainee’s effort to get testimony from two CIA contractors about operations allegedly in Poland where he says he was detained and tortured.
The ruling allows the government to officially keep secret some of the most basic information about the government’s use of so-called black sites to detain enemy combatants in foreign countries in the initial years responding to the Sept. 11, 2001, terrorist attacks.
The court split along how the justices should approach the case, which centered on whether a discovery request meant the contractors would confirm or deny whether there was a black site in Poland. The United States hasn’t done so, and neither has Poland, though information about that has come from public sources, such as a Senate report that spoke of “Detention Site Blue” in lieu of “Poland” more than 60 times, the Supreme Court’s ruling states.
The CIA contends an official confirmation from contractors would damage the CIA’s clandestine relationships with foreign authorities. The U.S. government intervened in this case under the state secrets privilege, which can stop disclosure of information that would harm national security if it were revealed.
Justice Stephen G. Breyer, writing for the court, pointed out that the case was about only specific discovery requests in Abu Zubaydah’s case, not a judgment of his alleged terrorist activities or treatment at the hands of the government.
“Obviously the Court condones neither terrorism nor torture, but in this case we are required to decide only a narrow evidentiary dispute,” Breyer wrote.
But Justice Neil M. Gorsuch, in a dissent joined by Justice Sonia Sotomayor, took a wider view and would have kept the discovery going in the case in some way. Gorsuch wrote that it seems the government really wants this suit dismissed because it hopes to impede a Polish criminal investigation and avoid or delay “further embarrassment for past misdeeds.”
The facts are hard to face, Gorsuch wrote, that the government did more than 80 waterboarding sessions on Zubaydah, hundreds of hours of live burial and what it calls “rectal rehydration.”
“But as embarrassing as these facts may be, there is no state secret here,” Gorsuch wrote. “This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.”
The decision was fractured, with justices joining some but not all parts of the court’s ruling, and most writing separately to detail their views.
Zubaydah sought to get information from contractors James Mitchell and John Jessen, who designed and implemented the post-Sept. 11 interrogation program, about his treatment in 2002 and 2003 at the site, the Supreme Court ruling states. It was for use in a Polish investigation.
The Supreme Court concluded that any discovery would directly confirm or deny the existence of a CIA detention site in Poland, and there is a “reasonable danger” that could harm national security interests. Six justices ruled that the current discovery request be thrown out.
The decision points to then-CIA Director Mike Pompeo’s declaration that it has not confirmed or denied the accuracy of public speculation about its cooperation with Poland despite the passage of time, changes in public opinion or media reports.
“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.
Nothing in the evidentiary record casts doubt on the conclusion that the government met its burden to show that the state secrets privilege should apply, Breyer wrote.
After the Sept. 11, 2001, attacks, the government considered Zubaydah a senior al Qaeda lieutenant who had knowledge of future attacks against the United States, the Supreme Court opinion states.
He was captured by Pakistani government officials in March 2002, transferred to a detention site that some sources allege was in Thailand, where he was subjected to what the government then called “enhanced interrogation” techniques such as waterboarding, but that the government in 2014 described as torture.
The CIA transferred Zubaydah to a different detention site that he believes was in Poland in December 2002, and then to Guantanamo Bay detention center in 2006, where he remains detained, at this point, indefinitely.
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