WASHINGTON – Several Supreme Court justices appeared skeptical on Wednesday Claim of a terrorist prisoner that the collaboration of two former CIA contractors in an investigation into his torture by the United States abroad would not violate official secrets.
But at least three judges suggested that the best testimony might come from inmate Abu Zubaydah, himself. He was transferred to the custody of the Department of Defense in 2006 and transferred to the US military base at Guantanamo Bay in Cuba, where he is staying.
Judges Stephen Breyer, Neil Gorsuch, and Sonia Sotomayor asked acting Attorney General Brian Fletcher why the government will not allow the prisoner to provide Polish investigators with his own testimony examining his legal claims against current or former Polish officials, whom he says that they were complicit in his detention and treatment at the secret interrogation center there.
“Why not ask Abu Zubaydah? He was there,” said Breyer.
Gorsuch tried to pin Fletcher down towards the end of the argument. “I ask much more directly, will the government make it available?”
“We want a clear answer,” said Sotomayor.
Fletcher said he was not empowered to make that decision alone.
Zubaydah wants to know more about his treatment, including where he was held and what was done to him. The CIA captured him 19 years ago in Pakistan because they believed he was a high-ranking figure in al-Qaeda – an idea that the CIA later believed was wrong, according to a Study by the Senate Intelligence Committee.
His lawyers said he was held in several secret locations abroad known as black places, where he was repeatedly boarded, beaten and smashed against walls, crammed into a small box and deprived of sleep for days during interrogation.
A European court concluded that one of these black pages was in Poland. In order to enforce his legal claims, Zubaydah now wants access to two former CIA contractors who designed and carried out the US torture program.
Fletcher told the court during a hearing on Wednesday that it would harm US national security to allow them to answer Zubaydah’s questions. “Our allies would see this as a serious breach of trust,” given the US government’s assurances that their cooperation will never be disclosed.
Both the Trump and Biden administrations blocked Zubaydah’s efforts to obtain their testimony, arguing that some information about his treatment remained a state secret, including the names of the countries where black CIA sites were located.
Judge Elena Kagan seemed unimpressed. “It gets a little weird at a certain point, doesn’t it?” She asked. “It is no longer a privilege of state secrets.”
Mike Pompeo, a former former CIA director and secretary of state in the Trump administration, said in a court statement that intelligence has sought help from foreign governments, pledging “to keep any clandestine cooperation with the CIA secret”. Maintaining confidentiality is critical to the CIA’s ability to “convince foreign intelligence agencies to work with us,” he said.
Even if the two former contractors didn’t mention Poland by name, “you can’t take Poland out of the equation because it’s all about getting evidence of a Polish trial,” Fletcher said.
Zubaydah’s attorney, David Klein, told the court that the location of the CIA’s black pages was no longer a secret. The European Court of Human Rights ruled that he was transferred to Poland in December 2002 and detained there for nine months, citing an interview with Poland’s former presidentwho said officials agreed to allow the CIA to operate there but denied knowing about torture.
Even so, Klein said he wasn’t asking the former contractors to confirm the location. “I’m not going to ask if it happened in Poland? Abu Zubaydah needs to know what happened in this cell.”
Access to the former CIA contractors is no official confirmation of where the black sites are, Klein said, “because the witnesses are not agents of the government and cannot speak on their behalf.”
A federal judge in California stopped Zubaydah from questioning the former CIA contractors, but the US Court of Appeals for the 9th District said some of the information was no longer secret and ordered the judge to look back at the screening. The government then appealed.
The court wants to decide by the end of June.