The U.S. Supreme Court on Wednesday will wrestle with the limits of the government state secrets privilege in a high-stakes case brought by the first al-Qaida suspect detained and harshly interrogated at a CIA “black site” after Sept. 11, 2001.
Abu Zubaydah, who was captured in Pakistan in 2002, was waterboarded 83 times, spent 11 days in a coffin-size confinement box and was subjected to “walling, attention grasps, slapping, facial holds, stress positions and sleep deprivation,” according to a declassified 2014 Senate Intelligence Committee report.
He wants the U.S. government to publicly confirm that Poland was one of the locations of his interrogation and allow depositions of two CIA contractors involved with his treatment through the agency’s controversial rendition, detention and interrogation program, also known as the “torture program.”
Zubaydah and his legal team said the information is critical to a case they are pursuing overseas against Polish government officials for alleged complicity in his treatment.
The Biden administration said in court documents that revealing the information would “cause exceptionally grave damage to the national security.”
“We have a confrontation in this case between openness and secrecy — major principles that have so corrosively confronted one another during this entire era of modern American history,” said University of Chicago law professor and legal historian Farah Peterson.
Zubaydah, 50, has been detained at the U.S. military prison in Guantanamo Bay, Cuba, without charge since 2006. For years, the government asserted that he was a plotter in the 9/11 attacks, but officials later acknowledged that he was not tied to the operation, according to the 2014 report.
Today, the Biden administration calls Zubaydah “an associate and longtime terrorist ally of Osama bin Laden.” His attorneys insist “none of these allegations has support in any CIA record.”
While many details of Zubaydah’s treatment in U.S. custody have been public for years — published in declassified congressional documents, media reports and other outside investigations — the American government has never formally confirmed, nor denied, the existence of a black site in Poland or that Zubaydah was held there for five months between 2002 and 2003.
The European Court of Human Rights, independent investigations by international advocacy groups and several former top Polish officials have each pointed to the existence of a CIA site in Poland and alleged that Zubaydah was held there.
“It’s [about] protecting whether the [U.S.] government has any official confirmation of what foreign country does, or does not, cooperate with them,” said Beth Brinkmann, a former deputy assistant attorney general for the Obama administration, at a recent event at William & Mary Law School. “There’s an interesting government interest in the government saying something and confirming something.”
“It might have a chilling effect on other countries being willing to cooperate with us if they know it might come out,” added Andrew Pincus, a Yale Law School professor, at the same event.
Zubaydah’s attorneys argue that because so many details of the CIA program are widely known, the government’s blanket assertion of the state secrets privilege is too broad and illegal.
“The two former CIA contractors who devised and implemented the torture program … have twice testified under oath about what they saw, heard and did at various black sites, including what they did to Abu Zubaydah and some of what they observed at the black site at issue in this litigation,” they wrote in court documents. “It is undisputed that this testimony contains no state secrets.”
Lower courts have split over the subpoenas for evidence in Zubaydah’s case. A federal district court sided with the government, but the Ninth Circuit U.S. Court of Appeals reversed the decision.
“The district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information,” the panel wrote.
The Supreme Court will now parse whether sensitive information already in the public domain can be still subject to the state secrets privilege and to what extent information from government contractors may be protected for national security concerns.
A decision in favor of Zubaydah could help him expose more information about the now-defunct, secretive CIA program and advance his case against Polish officials overseas. A decision siding with the U.S. government could bolster the power of the state secrets privilege and limit future attempts at exposure of classified information related to national security.
The CIA did not immediately respond to ABC News’ request for comment on the case.
“The arc of the moral universe has been twisted and bent over the last 20 years, with justice sadly eluding both the families of the 9/11 dead and the accused, who were, like Mr. Zubaydah, tortured at government black sites,” said Adele Welty, the mother of New York City firefighter Timothy Welty, who was killed in the attack. “In the interest of justice so long denied, we implore the government to separate properly classified information from unclassified and release all relevant documents.
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