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State Secrets and the Blinding of Justice
The Supreme Court's rejection of Abu Zubaydah's plea is another black mark on American justice
With its decision on March 3 blocking a Guantánamo detainee’s petition to question CIA contractors about his torture at an agency “black site” 20 years ago, the Supreme Court added another miserable chapter to the long history of cover-ups related to its criminal treatment of terrorist suspects.
The long discredited legal process at Guantánamo has become so snarled in procedural and constitutional knots that talks are underway now between the government and defense lawyers to swap out death penalty trials in exchange for guilty pleas and life terms in a federal penitentiary or Guantánamo. In 2011 Congress blocked the Obama administration from trying the detainees in stateside federal courts.
Lawyers for Abu Zubaydah, a Saudi-born Palestinian refugee captured in Pakistan and held without charges or trial in Guantánamo since 2006, had sought the testimony of James Mitchell and John “Bruce” Jessen, two former CIA contract psychologists who devised the agency’s so-called “enhanced interrogation techniques,” or EITs. The Guantánamo techniques were based on the same abusive interrogation practices employed at the CIA black sites, Afghanistan, and eventually Abu Ghraib, the notorious Iraqi prison where detainees were photographed in humiliating and degrading poses.
The Biden administration argued that the information Zubaydah sought would reveal “state secrets” that could harm U.S. national security. With this ruling, American and even foreign courts have been blocked from learning officially confirmed facts about the state-sponsored torture the CIA was engaged in.
The court rebuffed Zubaydah’s petition on a 7-2 vote, with Associate Justice Stephen Breyer writing for the majority.
“In our view,” he said, “the government has provided sufficient support for its claim of harm to warrant application of the privilege." Previously, in 2019, the U.S. Court of Appeals for the 9th Circuit had sided with Zubaydah, now 51, rejecting the government‘s claims of potential harm to national security.
Justice Neil Gorsuch blasted the majority decision, writing that the government should come to terms with what it did to Zubaydah, whom the U.S. mistakenly labelled a high level al-Qaeda terrorist and tortured for days with waterboarding, sleep deprivation, rectal penetrations and more. A report by the Senate Intelligence Committee in 2014 found the CIA "significantly overstated" Zubaydah's role in al-Qaeda.
“The facts are hard to face,” Gorsuch wrote in a dissent joined by Justice Sonia Sotomayor, suggesting that the dismissal of the truth was to avoid “further embarrassment for past misdeeds.” He added: “We know already that our government treated Zubaydah brutally—more than 80 waterboardings, hundreds of hours of live burial and what it calls ‘rectal hydration’. Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here.” It was the court’s duty, Gorsuch said, to follow “the rule of law and the search for the truth. We should not let shame obscure our vision.”
The court’s decision was even more baffling because the information about Abu Zubaydah’s torture has already been declassified and is within the public domain. Zubaydah remains at Guantánamo Bay, one of those the New York Times labeled “forever prisoners.” The label struck: Abu Zubaydah’s case was also singled out in last year’s HBO documentary, The Forever Prisoner. Further details of his torture and those involved in it are the subject of a book scheduled for release next month, The Forever Prisoner: The Full and Searing Account of the CIA’s Most Controversial Covert Program, by Cathy Scott-Clark and Adrian Levy.
“There comes a point where we should not be ignorant as judges of what we know to be true as citizens…” Gorsuch said. “This case takes us well past that point.” The judge was clearly deeply agitated by his colleagues’ decision rebuffing Zubaydah’s plea.
“Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them,” he wrote.
“Still, the government seeks to have this suit dismissed on the ground it implicates a state secret—and today the court acquiesces in that request. Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret.”
Some may regard this as a victory for the government, in that it allows the CIA to shape the information to suit its own agenda. But the long term implications for the rule of law and today’s battle between the forces of democracy and autocracy in America are devastating: The decision allows the CIA to shape national policy, rather than support it, by using the state secrets privilege to manage perceptions and control the narrative of the courts, which is an abrogation of the rule of law that the U.S. promotes and is supposed to practice.
In his first State of the Union address, President Biden condemned Vladimir Putin’s aggression against Ukraine and described it as a battle between democracy and autocracy, proclaiming, “In the battle between democracy and autocracy, democracies are rising to the moment, and the world is clearly choosing the side of peace and security.”
Of course, we are not an autocracy—not yet, at least. But President Biden can underscore his self-proclaimed commitment to truth and rejection of autocracy by following through on his words with action. He should use his executive authority to order the disclosure of all information about the torture program, starting with the declassification of the Senate Intelligence Committee’s full report on the same (taking care to protect the identity of CIA officers and sources). He should make closing the Guantánamo Bay prison a national priority, as recommended by the Center for Ethics and the Rule of Law at the Annenberg Public Policy Center at the University of Pennsylvania, and “mandate that any evidence derived from illegal activity, including cruel, or degrading treatment, or the use of interrogational practices prohibited by U.S. law, be excluded from all stages of military tribunal proceedings and for all purposes, except as evidence of the illegal activity.”
Without truth, without fair and transparent trials, there can be no closure for the families and friends of those who died on the USS Cole or during the horrific events of September 11, 2001. All of America deserves better.
SpyTalk Editor-in-chief Jeff Stein contributed to this piece.
An earlier version of this story called Abu Zubaydah a Saudi citizen. He is a Saudi-born Palestinian refugee.