Hussayn Zubaydah has been a prisoner of the United States. An al Qaeda militant he has never been charged with a crime. In 2018 In 2010, Zubaydah filed a criminal complaint in Poland, seeking to hold accountable any Polish nationals involved in his alleged mistreatment at the CIA site ostensibly located in that country. The United States denied multiple requests by Polish prosecutors for information related to Zubaydah’s claim on the ground that providing such information would threaten national security. Zubaydah filed a discovery application pursuant to 28 U. S. C. §1782, which permits district courts to order production of testimony or documents “for use in a proceeding in a foreign . . . tribunal.”
The United States no longer claims him to have been a planner of the 9/11/2002 assault.
20-827_United States v. Husayn, AKA ZUBAYDAH -SCOTUS
Iby Karen Greenberg
Fordham Law - Center for National Security Studies
Supreme Court Rules CIA Black Sites Are State Secrets |
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The Supreme Court on Thursday rejected a request by a detainee at Guantánamo Bay to obtain information from two former CIA contractors involved in torturing him. In a 6-3 ruling, the court found that the government could assert the state-secrets privilege to prevent two contractors from being questioned in a Polish criminal investigation about their role in interrogating and torturing Abu Zubaydah because it would jeopardize U.S. national security. Zubaydah, who was initially thought be a high-level member of al-Qaeda, was captured in 2002 in Pakistan and has been held by the United States since then without charges. He has spent more than 15 years detained at Guantanamo.
Zubaydah sought to subpoena the contractors, James E. Mitchell and Bruce Jessen, to find out more about his treatment, including where he was held and what was done to him before he arrived in Cuba. The Polish investigation was prompted by a determination by the European Court of Human Rights that Zubaydah had been tortured in 2002 and 2003 at secret sites operated by the CIA, including one in Poland. David Klein, a lawyer for Zubaydah, said the information was necessary to better understand the conditions in his client’s cell and how he was tortured. “We are not talking about a secret anymore,” Klein said. “We are talking about a governmental wish not to assist this Polish investigation.”
Justice Stephen Breyer, writing for the majority, said the main question was whether the information sought by the detainee would confirm the location of a CIA black site, which is widely known to have been in Poland. The contractors’ testimony “would be tantamount to a disclosure from the CIA itself,” Breyer wrote in the ruling. “For these reasons, we conclude that in this case the state secrets privilege applies to the existence (or nonexistence) of a CIA facility in Poland.” The court's opinion could restrict access to materials, discovery, or testimony in future cases that the government claims should be protected by the state secrets privilege.
In a dissent, Justice Neil Gorsuch wrote that much of what the government claims to be a state secret is already widely known. “There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” Gorsuch wrote. He added, “As embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.” Justice Sonia Sotomayor concurred. Justice Breyer, on the other hand, insisted that the question at issue was a limited one. “Obviously, the court condones neither terrorism nor torture,” he wrote, “but in this case we are required to decide only a narrow evidentiary dispute.” Reuters, New York Times, CNN, NBC News, The Hill, ABC News, CBS News, Al Jazeera |
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