WASHINGTON, DC — October 7, 2021 — It has been just over 20 years since the Sept. 11 attacks killed nearly 3,000 people in the worst terrorist attack in modern history. On Wednesday, the Supreme Court will hear oral argument in yet another legal battle arising from the government’s response to the attacks – specifically, the government’s efforts to block the disclosure of information about its torture program at CIA “black sites.”
In United States v. Zubaydah, the government argues that the information is protected by the “state secrets privilege,” a doctrine that allows the government to withhold information in litigation when disclosing it would compromise national security. A federal appeals court disagreed, reasoning that something can be a “state secret” only if it is a secret – which, the court of appeals concluded, much of the information at issue in this case is not.
Zayn al-Abidin Muhammad Husayn, known as Abu Zubaydah, is a Palestinian who was mistakenly believed to be a high-level member of al-Qaeda when he was captured in Pakistan in 2002. For four years, the government moved him among so-called black sites operated by the CIA overseas – including, by all accounts, one in Poland. During that time, he was subjected to so-called “enhanced interrogation” techniques that included waterboarding (more than 80 times), sleep deprivation, and over 11 days in a coffin-sized box. In 2006, the government transferred Abu Zubaydah to the military prison at Guantanamo Bay, Cuba, where he remains to this day.
In 2017, Abu Zubaydah and his lawyers asked a federal judge in Washington state for an order allowing his lawyers to depose and seek documents from two former CIA contractors, James Elmer Mitchell and John Jessen, as part of a criminal investigation in Poland, where Zubaydah says Mitchell and Jessen had supervised his interrogation. The judge initially granted the request for a subpoena, but he later changed his mind and quashed the subpoena after the U.S. government intervened and, in a declaration by then-CIA director Mike Pompeo, asserted the state secrets privilege.
The U.S. Court of Appeals for the 9th Circuit reversed. The court of appeals agreed that the government had properly asserted the state secrets privilege to shield “much” of the information at issue. But the solution, the court of appeals concluded, is not to quash the entire subpoena, but instead to try to “disentangle non-privileged from privileged information.” Over the objections of 12 judges, the full court of appeals declined to rehear the case.
The Trump administration went to the Supreme Court in December 2020, asking the justices to weigh in; they agreed to do so in April 2021, and the Biden administration has continued to pursue the appeal.
In its brief on the merits, the federal government stressed that it has already declassified a lot of information regarding the CIA’s detainee program, including “the details of Abu Zubaydah’s treatment while in CIA custody, which included the use of enhanced interrogation techniques.” But it has concluded that the disclosure of some information, such as the locations of “black sites” and the identities of the countries with which the CIA worked, “could not be declassified without risking undue harm to the national security” – even if other sources, including the European Court of Human Rights, have publicly discussed that information. After the Sept. 11 attacks, the government explained, some foreign countries had agreed to cooperate with the CIA as long as the CIA kept those relationships secret. If CIA personnel or contractors, like Mitchell and Jessen, were to publicly confirm the relationships, it would create “a breach of the trust” between the CIA and the foreign governments and would “likely” lead to “serious negative consequences” for the U.S. intelligence community, because foreign governments would be less likely to help the CIA in the future, the government argued.
The 9th Circuit compounded its mistake, the government suggested, when it concluded the disclosure would not result in any harm because Mitchell and Jensen are contractors, rather than CIA employees, so that any information they provided would not come from the “United States.” Mitchell and Jensen obtained the information at issue only because they worked for the CIA, the government emphasized, so their responses would furnish exactly the confirmation or denial that Abu Zubaydah is seeking. And the government can still invoke the privilege even when other sources may have already reported that Poland was the site of a CIA detention facility, the government added.
Even putting aside the state secrets privilege, the government continued, the district court correctly denied Abu Zubyadah’s request for discovery. All of the factors that the Supreme Court’s cases have outlined to guide federal courts in making these kinds of decisions point to denial, the government contended. In particular, the government told the justices, Abu Zubaydah’s efforts to obtain information from Mitchell and Jessen is simply an effort to circumvent limitations in federal law and a U.S. treaty with Poland, which prevent him from being able to obtain the information directly from the CIA.
For his part, Abu Zubaydah agreed that courts should generally defer to the executive branch’s conclusion that disclosing secret information would harm national security. But, he cautioned, that deference does not extend to the question of whether the information itself is secret, or what courts should do when a litigant is seeking both privileged and nonprivileged information. In this case, Abu Zubaydah emphasized, the court of appeals upheld “most” of the government’s privilege claim; it simply ruled that some of the information that Abu Zubaydah seeks was not privileged, including information regarding the conditions in which Abu Zubaydah was held and details about his interrogation.
The reality bears out the lower court’s distinction, Abu Zubaydah contended. He is not seeking confirmation that there was a CIA black site in Poland. Instead, he is seeking information that could help Polish prosecutors to determine “whether a crime was committed under Polish law, such as the details of Abu Zubaydah’s torture in Poland, his medical treatment, and the conditions of his confinement.” The government has already declassified this information; indeed, Mitchell and Jessen have already testified about these details in other proceedings. And in any event, allowing Mitchell and Jessen to testify wouldn’t officially confirm anything, he wrote, because they are CIA contractors and therefore can’t speak for the government. Moreover, Abu Zubaydah has no other access to this information – he is being held incommunicado indefinitely, he stressed, so neither he nor his attorneys can testify about the conditions of his confinement.
Abu Zubaydah urged the court to reject the government’s fall-back argument that, putting aside the claim that the information is shielded by the state secrets privilege, the district court still should have rejected his discovery request anyway. That contention is not properly before the court, Abu Zubaydah posited, because the government did not broach it in its petition for review. However, Abu Zubaydah noted, the district court initially granted Abu Zubaydah’s discovery request based on the same factors that the government now says weigh against him. It agreed to dismiss the request only after the government invoked the state secrets privilege.
The justices are slated to hear another case involving the state secrets privilege, FBI v. Fazaga, next month. Decisions in both cases are likely to follow sometime next year.
This article was originally published at Howe on the Court.