At the U.S. Supreme Court on Wednesday, the justices sharply questioned the federal government's lawyer about the refusal to allow a Guantanamo Bay detainee to testify about his own torture at a so-called CIA black site in Poland.
The unexpectedly tense argument over torture in the aftermath of the 9/11 attack came in the case of Abu Zubaydah, a Guantanamo detainee who has never been charged with a crime, though he has been in U.S. custody for 20 years.
The question before the court was whether the government — first the Obama, then the Trump and now the Biden administration — could block testimony from the contractors who supervised Zubaydah's torture. And ultimately, some of the justices focused on allowing testimony from Zabaydah himself.
Zubaydah was the first prisoner held by the CIA to undergo extensive torture reportedly at black sites in Thailand and Poland, before being transferred to Guantanamo in 2006. A Senate Intelligence Committee report subsequently documented that he was subjected to years of horrific treatment, including being waterboarded 83 times in just 20 days, though eventually it turned out that he was not the top al-Qaida operative that the CIA thought he was.
Now Zubaydah has subpoenaed the government contractors who supervised his questioning. They have testified twice before in other litigation, and one wrote a book about it. But this time, the government is seeking to block their testimony on grounds of national security.
The problem in Wednesday's argument was that this national security secret is no secret at all. In fact the justices, and lawyers, mentioned Poland 103 times during the 70-minute argument. And many of the justices seemed torn between deferring to the executive branch to protect state secrets, on the one hand, and on the other, aiding an absurd fiction.
Acting Solicitor General Brian Fletcher began by rejecting the idea of using code words to conceal the location of the black sites. After all, he noted, Zubaydah's subpoenas are aimed at providing further information for a Polish prosecutor who has re-opened an inquiry into the matter.
David Klein, the lawyer representing Zubaydah, initially had a harder time.
"The fact that he was tortured by these contractors in Poland, that's not a state secret?" Justice Amy Coney Barrett asked.
"I would say that's correct," he replied. "Because the very fact of torture, the so-called enhanced interrogation techniques are not a secret. They are declassified by the government." Klein noted that Poland's former president had also acknowledged that he approved it.
But Chief Justice John Roberts didn't seem to buy that argument.
"But you don't have the United States government acknowledging that," he said. "The United States government says this is critically important because our friends, allies, intelligence sources around the world have to believe that we keep our word, and our word was this is — this is secret."
Justice Stephen Breyer interjected to ask why lawyer Klein didn't just have his client testify. After all, he knows what happened to him. He was there.
Klein replied: "Abu Zubaydah cannot testify" because he has been held "incommunicado" at Guantanamo.
The argument took a dramatic turn when Klein sat down and the government's lawyer, Fletcher, rose to make a rebuttal argument. But he got just five words out of his mouth when Justice Neil Gorsuch launched a grenade.
"Why not make the witness available?" he asked. "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?"
But again and again Fletcher demurred, refusing to commit to the government making Zubaydah available to testify. Finally, an exasperated Gorsuch did the best he could to stick it to Fletcher.
"Will the government at least commit to informing this court whether it will or will not allow the petitioner to testify as to his treatment during these dates?" he asked.
Fletcher said only that he understood the question and the government would respond.
It's hard to imagine the court won't ultimately side with the government in the case, but by the end of the argument, it didn't look like a slam dunk.