A Supreme Court opinion authored by retiring Justice Stephen Breyer shot down the efforts by a longtime Guantanamo Bay detainee interrogated at CIA black sites around the world to gain access to information about the two men who waterboarded him in the wake of the 9/11 terrorist attacks.
Abu Zubaydah, an alleged al Qaeda member and associate of Osama bin Laden who was captured in Pakistan in March 2002, has been held at the U.S. naval base in Cuba since 2006 after having been interrogated at a number of secret CIA locations around the world, including one widely believed to have been in Poland. The Saudi-born terrorist, now 50 years old, sought subpoenas against James Mitchell, a former clinical psychologist at the Air Force survival school, and fellow psychologist Dr. John “Bruce” Jessen, who worked as CIA contractors to design the agency’s “enhanced interrogation program,” considered by some to be torture, and to help implement it, including by waterboarding Zubaydah.
Breyer issued the 7-2 majority opinion reversing a 9th U.S. Circuit Court of Appeals ruling and denying Zubaydah’s request.
“Because any response to Zubaydah’s subpoenas allowed by the Ninth Circuit’s decision will have the effect of confirmation or denial (by the Government or its former contractors) of the existence of a CIA facility in Poland, the primary question for us must be whether the existence (or non-existence) of a CIA detention facility in Poland falls within the scope of the state secrets privilege,” Breyer wrote. “We conclude that it does.”
A district court initially sided with the U.S. government in blocking Zubaydah’s legal efforts, but an appeals court partially sided with him, and the Supreme Court announced last April it would hear the case after the Trump and Biden Justice Departments asked it to intervene, arguing national security would be placed at risk.
“The state secrets privilege permits the Government to prevent disclosure of information when that disclosure would harm national security interests,” Breyer wrote, adding, “Obviously, the Court condones neither terrorism nor torture, but in this case, we are required to decide only a narrow evidentiary dispute.”
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Justice Neil Gorsuch wrote a lengthy dissent from the majority opinion.
Zubaydah obtained a judgment largely in his favor in the European Court of Human Rights in 2015, which detailed allegations that he was held at black sites in Thailand in 2002 and transferred to Poland in late 2002, where he was held into mid-2003, before being sent to other black sites. The Guantanamo detainee sought to use the U.S. courts to gain more information about his detention which, if successful, could have affected the yet-to-happen trial against Khalid Sheikh Mohammed and other al Qaeda members believed to be responsible for the planning of the terrorist attacks that killed 3,000 people.
Pompeo argued in March 2017, when he was the CIA director, that “the TOP SECRET information implicated in discovery … is based primarily on the need for the CIA to keep its commitment or duty of confidentiality to its officers, agents, assets, and foreign liaison officers who assisted the CIA in program-related activities.”
Mitchell testified during pretrial proceedings in 2020 at Guantanamo Bay, portraying his decision to work as a CIA contractor as a patriotic duty, but he said he grew disillusioned as CIA higher-ups pushed him to keep waterboarding Zubaydah. He said he was asked to observe interrogations of Zubaydah in April 2002 and to design a new program two months later, and by August that year, he and Mitchell said they were convinced Zubaydah was cooperating.
In a detainee profile, the U.S. government describes Zubaydah as the leader of a “mujahadeen facilitation network” who “took a more active role in attack preparations by sending operatives” to al Qaeda after 9/11. The Democratic-led Senate Intelligence Committee’s interrogation report from 2014 described Zubaydah as “completely unresponsive, with bubbles rising through his open, full mouth” after one waterboarding session.
The Trump Justice Department described Zubaydah as “an associate and longtime terrorist ally of Osama bin Laden.” The DOJ filed a petition for a writ of certiorari with the Supreme Court in 2020, arguing that December that “the Ninth Circuit’s multiple errors in this case derive largely from one source: the court’s failure to afford deference to the judgment of the CIA Director regarding the risk of harm to the national security.”
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Zubaydah’s lawyer, Joseph Margulies, argued to the Supreme Court in February that, among other harsh techniques used against Zubaydah, “on 83 different occasions in a single month of 2002, he was strapped to an inclined board with his head lower than his feet while CIA contractors poured water up his nose and down his throat, bringing him within sight of death.”
The Biden Justice Department, led in its filings by acting Solicitor General Elizabeth Prelogar, backed up the Trump DOJ position trying to block Zubaydah, arguing in March last year that “the Ninth Circuit’s decision reflects a fundamentally misguided approach to national-security litigation that poses significant risks to the Nation’s intelligence capabilities.”
