While Zubaydah is pressing for testimony from former CIA contractors James Mitchell and John Jessen that could aid a Polish investigation into his treatment in that country, Justice Neil Gorsuch suggested he had happened upon what he viewed as a simpler answer: have Zubaydah himself testify about what happened to him during his detention in Poland.
“Why not make the witness available?” Gorsuch asked the attorney representing the U.S. government, acting Solicitor General Brian Fletcher.
Fletcher said Zubdaydah could testify through an affidavit or some other means, but the lawyer cautioned that his statements could be sanitized of classified information, which is the same basis the government is using to block the demand for Mitchell and Jessen’s testimony.
“We would allow him to communicate about this subject on the same terms” as other so-called high-value detainees at Guantanamo, Fletcher said, including the classification review.
That didn’t satisfy Gorsuch. “I’d really appreciate a straight answer to this,” replied the justice, a nominee of President Donald Trump.
Fletcher said he didn’t have the authority to address such a potential compromise on the fly, a response that further irked Gorsuch.
“This case has been litigated for years, all the way to the U.S. Supreme Court, and you have never considered whether that’s an off-ramp the government can provide that would obviate the need for any of this?” Gorsuch asked incredulously.
The justice’s line of inquiry got an unusual endorsement from Justice Sonia Sotomayor, an appointee of President Barack Obama who is considered by many to be the current court’s most liberal justice. “We want a clear answer,” she insisted.
The tag-teaming prompted Justice Samuel Alito, nominated by President George W. Bush, to jump in to defend Fletcher by suggesting that the Justice Department lawyer wasn’t empowered to address potential testimony from Zubaydah. Fletcher ultimately agreed to advise the court by letter of the government’s stance.
Sotomayor also floated a technical dodge of her own for the case, suggesting that the U.S. government’s decision to turn down Poland’s formal request for legal assistance under a treaty definitively resolved the issue and foreclosed Zubaydah’s request.
Technicalities abounded in the case, as Zubaydah’s attorney David Klein insisted that his client wasn’t looking to force Mitchell and Jessen to specify that mistreatment of the prisoner happened in Poland but instead the dates of the alleged abuse. However, other information obtained by Polish prosecutors has already established that Zubaydah was at a so-called black site in Poland at those times, Klein said.
“The subtlety of all this is somehow escaping me,” Alito declared at one point.
“The where and the when are already known, but not the what,” said Klein. “We’re looking for eyewitness testimony. … We want to shine a light on it.”
While much of the litigation in U.S. courts in the case has turned on whether the government can invoke the state secrets privilege to block any response to Poland, Klein said the publication of a Senate Intelligence Committee report in 2014 and testimony by the two psychologist contractors in military commission proceedings laid bare the CIA’s tactics. The Senate report detailed that Zubaydah had been waterboarded — subjected to a form of simulated drowning — 83 times.
Justice Elena Kagan, another Obama appointee, said to Fletcher that the government’s insistence on using the state secrets privilege to not confirm things that are common knowledge was becoming hard to swallow.
“At a certain point, it becomes a little bit farcical, this assertion of privilege, doesn’t it?” she asked. “Maybe we should rename it.”
Klein said even debating the issue as one of “state secrets” was off the mark.
“We’re not talking about a secret anymore. We’re talking about a governmental wish not to assist this Polish investigation,” he said.
However, Fletcher argued that the courts should defer to executive branch officials, as long as they’ve taken account of public disclosures such as statements by officials in other countries. The Biden Justice Department attorney urged the justices to accede to former CIA Director Mike Pompeo’s judgment in Zubaydah’s case that effectively confirming Poland’s cooperation with the CIA black site program would undermine the CIA’s ability to get allies to offer assistance in the future.
At one point, Chief Justice John Roberts suggested that if Mitchell and Jessen were ordered not to mention any places, they still might be able to shed light on exactly what happened to Zubaydah.
“It seems to me there may be a lot they could talk about that doesn’t have to do with the actual location at which events occurred,” he said.
The arguments in Zubaydah’s case also revealed something that could have consequences for other detainees and for war powers debates in Congress: Justice Stephen Breyer has strong doubts about whether the U.S. has legal authority to hold the alleged al Qaeda leader and the 38 other prisoners still at Guantanamo.
On at least two occasions, Breyer said he couldn’t fathom why Zubaydah was being held at Guantanamo even though the U.S. pulled its troops from Afghanistan in August.
“Why is he there?” Breyer asked. “I don’t understand why he’s still there after 14 years.”
Klein and Fletcher said Zubaydah has a habeas corpus petition pending in federal court in Washington, but no ruling has been issued.
At the tail end of the argument, Justice Brett Kavanaugh, a Trump nominee, chimed in, getting Fletcher to state the Biden administration’s position that the detention of Zubaydah and most of the others at Guantanamo is justified under Congress’s 2001 Authorization for Use of Military Force because the U.S. is still in active hostilities with al Qaeda.
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