The Supreme Court ruled Thursday that the federal government can shield former government contractors from testifying about the torture of a post-9/11 detainee. The decision likely will make it harder for victims to expose secret government misconduct in the future.
Abu Zubaydah was the first prisoner held by the CIA to undergo what, at the time, was euphemistically called "enhanced interrogation." During one 20-day period, he was waterboarded 83 times, 24 hours a day. During that period, the suspected terrorist was also slammed against walls, put in a coffin-like box for hours at a time to simulate live burial, and subjected to something the government called "rectal rehydration."
In the end, the two CIA contractors who supervised Zubaydah's interrogation concluded that they had the wrong man. He was not a high-level al-Qaida operative, as the CIA had thought.
Disclosures about the torture
All of this has been publicly documented by a lengthy Senate Intelligence Committee report, the European Court of Human Rights, widespread press reports and disclosures by the two CIA contractors who supervised his torture. In fact, the CIA did allow the now-former contractors to write and speak extensively — and even testify in limited circumstances — about the "enhanced interrogation" program.
But when lawyers for Zubaydah subpoenaed them, the U.S. government blocked the move by invoking the so-called "state secrets" privilege, a doctrine created by the Supreme Court in 1953 that allows the government to shield evidence harmful to national security.
In this case, both the Trump and Biden administrations argued that even though the information about the torture program is widely known, confirming the existence of CIA black sites in Poland would jeopardize the U.S. government's relationship with foreign intelligence services.
A fractured opinion
On Thursday, the Supreme Court ruled in favor of the government, in a very fractured opinion. The vote was 7-to-2, but with four separate opinions on the majority side and a furious dissent. Justice Stephen Breyer wrote the majority decision, setting out narrow grounds for siding with the government. But, he added, "we do not decide here whether a different ... request filed by Zubaydah might" avoid the pitfalls of this particular case. Indeed, at oral argument, the government refused to say whether it would allow Zubaydah, now detained at Guantanamo Bay, to testify himself about his interrogation.
Only Chief Justice John Roberts joined Breyer's opinion in its entirely. Justice Clarence Thomas agreed only on the end result and refuted the idea that judges should play any role in reviewing secret material. Justices Brett Kavanaugh and Amy Coney Barrett also filed a separate concurring opinion. And Justice Elena Kagan wrote that while she largely agreed with Breyer's analysis, she would not have dismissed the case, but would have allowed the lower court to see if there were other ways of avoiding disclosure of secret material.
Justice Neil Gorsuch, in an angry dissent joined by liberal Justice Sonia Sotomayor, emphasized a long history of the government invoking national security to "shroud major abuses." Here, the government really wants to "avoid further embarrassment for past misdeeds," Gorsuch concluded. "But 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."
'No accountability for the U.S. program'
Joseph Margulies, Zubaydah's lawyer, sought to put the best gloss on Thursday's decision. "We are pleased the Supreme Court confirmed that the United States Government tortured Abu Zubaydah," he said in an email to NPR. He said that even with Thursday's opinion, he believes that there remains a pathway "to finally uncover the truth."
Josh Colangelo-Bryan, a lawyer who represents other Guantanamo Bay detainees, was more critical. "The opinion also is an excellent reminder that there has been no accountability for the U.S. program that subjected people to torture, something particularly worth remembering while the U.S. rightly condemns Russia for violating international law next door in Ukraine," he said in a statement.
The man at the center of Thursday's case, Abu Zabaydah, has been in custody now for nearly 20 years. Since 2006, he has been at the U.S. base at Guantanamo Bay in Cuba and remains there despite having been cleared for release.
There are just 39 prisoners left at Guantanamo, where the price tag is $13 million a year for each prisoner. Twenty have been cleared for release, 12 have been charged in 9/11-related cases and the remainder have not been charged but are considered too dangerous to release.