Supreme Court Wrestles with State-Secrets Privilege in Zubaydah Case

A woman walks past the Supreme Court building in Washington, D.C., May 17, 2021. (Jonathan Ernst/Reuters)

The best course here is for the Court to just decide the case that has been presented, rather than explore ways not to decide it.

In a column last week, I noted that the so-called War on Terror was back in the Supreme Court after a long hiatus. The more interesting aspect of the oral argument United States v. Zubaydah, to my mind, was Justice Kavanaugh’s, in effect, calling the Biden administration on the president’s false claim to have ended the “Forever War”: Buzzed by the justice, DOJ’s acting solicitor general Brian Fletcher conceded the administration’s position that the war is still going on — which it must be if, for example, the administration’s continuing detention of enemy combatants and attacks on al-Qaeda targets is to be legally valid.

But the underlying case is also interesting, and I said I’d address it in a separate post.

Abu Zubaydah (the nom de jihad of Zayn al-Abidin Muhammad Husayn) was a high-ranking aide to al-Qaeda emir Osama bin Laden. He is believed to have been complicit in the 9/11 plot, among other terrorist schemes. He was captured in Afghanistan in 2002 and subjected to enhanced interrogation, including over five dozen waterboarding sessions, in the ensuing four years before being lodged at Guantanamo Bay, where he remains detained. In that four-year period, he was transferred to overseas “black sites” that the CIA was operating, with the cooperation of some foreign-intelligence services.

In 2014, the European Court of Human Rights concluded that, in 2002 and 2003, Zubaydah had been interrogated in Poland at at least one CIA black site and in a manner that constituted torture. It ordered the Polish government to pay the jihadist €100,000. (I continue to believe that the application of waterboarding and other enhanced tactics, whatever their much-debated intelligence value, did not constitute torture as a matter of American law, but that is neither here nor there for present purposes).

European and Polish authorities continue to investigate the matter, in particular the suspected participation of Polish intelligence operatives, but have had difficulty acquiring related documents and testimony — there have been extensive legal proceedings and publication of materials, but much remains classified. Zubaydah filed a lawsuit to try to force testimony and production of documents from two CIA contractors, James Elmer Mitchell and John Jessen, who have previously been identified and who have testified in other proceedings about their roles in enhanced interrogation.

That is what the case before the Supreme Court is about.

The United States has asserted the “state secrets” privilege in refusing to acknowledge the existence of a black site in Poland, as well as the identity of foreign-intelligence collaborators and the nature of their assistance. While the privilege is not popular, a) it is vital if the U.S. is going to have cooperation from foreign-intelligence services and sources (which is essential to protecting the country from foreign threats to our security); and b) it was properly invoked here — even if much of the information has already become public, the government (and particularly its intelligence services) must not publicly acknowledge information or assistance received from foreign actors based on U.S. promises of confidentiality.

As Rich and I discussed on our TMR podcast, the trajectory of the oral argument in the Court last week suggests that the justices will uphold the state-secrets privilege invocation (although it must be noted that noises made during argument are no guarantee of the outcome of a case). But coverage about the case has centered on a suggestion made by Justice Neil Gorsuch, which would theoretically sidestep the need for a ruling.

Zubaydah’s counsel claimed — implausibly, in my view — that the terrorist was not really trying to get a formal U.S. government acknowledgement of what happened, but just wanted to fix the “torture” in a particular time frame (which would allow Polish investigators to connect it to Poland). If that is the case, Gorsuch asked, why couldn’t the government just allow Zubaydah to testify “as to his treatment during those dates”? Gorsuch got testy when it emerged that the Justice Department had never considered that possibility, largely because Zubaydah had never asked. At SCOTUSblog, Amy Howe quotes him: “This case has been litigated for years and all the way up to the United States Supreme Court, and you haven’t considered whether that’s an off-ramp that the government could provide that would obviate the need for any of this?”

Fletcher said the government would look into it and advise the Court. Justice Sonia Sotomayor, the Court’s most extreme progressive who rarely agrees with the conservative Gorsuch, admonished Fletcher that “we want a clear answer” on whether Zubaydah will be permitted to testify. It is shortsighted, however, to believe that Gorsuch has come up with a workable solution that no one thought of lo these many years.

To begin with, Zubaydah is a terrorist who is believed to have been instrumental in many al-Qaeda mass-murder plots. The government could not permit him to testify without giving him immunity from prosecution, since his testimony would obviously open him up to cross-examination about his background and activities. (Of course, it is likely that the light any prosecution would inevitably shine on Zubaydah’s interrogation goes a long way toward explaining why the U.S. has never charged him with a crime, in either military or civilian court — and why the habeas corpus position he filed to challenge his detention has been languishing in federal court for 14 years. It must thus be conceded that the terrorist might not be indicted even if he were to make testimonial admissions that put him in criminal jeopardy.)

More basically, there is no reason to believe that Zubaydah’s account, even if credible, would be enlightening. While he was being subjected to enhanced interrogation, our government would not have kept him informed about locations and the passage of time, and he would not have been at liberty to write it all down. Even if he offered to testify, and our government immunized him to let that happen, it is highly unlikely that his account would be useful to establishing where he was on particular dates over 18 years ago.

The best course here is for the Court to just decide the case that has been presented, rather than explore ways not to decide it. Clearly, the Justice Department does not want to put the Court in a hard spot of upholding the unpopular invocation of the state-secrets privilege. It has done so only because a) there is no better option, and b) there is already enough public information available for Polish authorities to competently investigate the actions of Polish officials if they choose to press the matter.