AP Photo/J. Scott Applewhite
- The Supreme Court heard arguments on Wednesday on a high-profile case involving a request from a Guantanamo Bay prisoner.
- The detainee, Abu Zubaydah, seeks further information from the government on his CIA-backed torture.
- The government, however, argued not to release the information, claiming an executive privilege called "state secrets."
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Three Supreme Court justices on Wednesday pressed the US government on whether it would allow a high-profile Guantanamo Bay prisoner to testify about his CIA-sponsored torture following the September 11, 2001 attacks.
The justices' questioning came as the court heard arguments on the case, United States v. Zubaydah, which concerns a request from the Guantanamo Bay prisoner, Abu Zubaydah, for further information from the government. Specifically, Zubaydah and his lawyers want testimony from two CIA contractors who supervised his torture, widely believed to have taken place in Poland.
The Biden administration argued that the government should not be required to release more information, claiming an executive privilege called "state secrets." That rule, established in a 1953 landmark Supreme Court case, United States v. Reynolds, allows the government to decline submitting information to the court to protect national security interests.
The government's lawyer, Acting Solicitor General Brian Fletcher, said on Wednesday that the US should not provide more disclosure in order to maintain trust with its foreign intelligence partnerships and keep those relationships confidential.
But the end of the arguments took a turn when Republican-appointed Justice Neil Gorsuch and Democratic-appointed Justices Stephen Breyer and Sonia Sotomayor asked Fletcher why the government can't bring Zubaydah, who's been held in Guantanamo Bay since 2006 without charges, to testify himself about his torture.
Fletcher said he did not have an answer, but told the court that he would follow up on the matter. Zubaydah's lawyer, David Klein, claimed that the detainee cannot testify himself, citing government orders that he should "remain incommunicado."
The case dates back to the US government's 9/11 response, when the CIA set up a program to gather intelligence from suspected terrorists at secret detentions, or so-called black sites, in foreign countries.
Abu Zubaydah was the first terrorist suspect subjected to the program - which the CIA called "enhanced interrogation techniques" - at a black site that evidence overwhelmingly suggests was in Poland. A 2014 Senate investigation concluded that the methods, including waterboarding and confinement in a box, were torture. The CIA also disproved Zubaydah's suspected links to al-Qaeda, according to the report.
"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," Zubaydah's lawyers wrote to the court. "He was handcuffed and repeatedly slammed into walls, and suspended naked from hooks in the ceiling for hours at a time. He was forced to remain awake for eleven consecutive days, and doused again and again with cold water when he collapsed into sleep. He was forced into a tall, narrow box the size of a coffin, and crammed into another box that would nearly fit under a chair, where he was left for hours."
Zubaydah, who is of Palestinian descent, had ties to a militant training camp in Afghanistan and was arrested by Pakistan and turned over to the US in 2002.
Zubaydah and his lawyers are asking the government for more disclosure on his treatment and for the two CIA contractors who supervised his torture to provide more evidence. They say the additional information will help a criminal complaint they're pursuing in Poland to hold Polish officials accountable for alleged complicity in Zubaydah's torture.
Although Zubaydah's torture has been widely reported, the government has blocked his legal team's efforts seeking more evidence, arguing that they've already declassified enough information.
A district court declined Zubaydah's case, upholding state-secrets privilege. But a federal appeals court reversed the ruling, siding with Zubaydah. The Supreme Court will review that decision and hand down a ruling by the end of June.