Opinion from a Libertarian ViewPoint

Supreme Court: Torture at CIA Black Site Is ‘State Secret’ In a scathing dissent, Neil Gorsuch accused the government of seeking dismissal of Abu Zubaydah’s petition to avoid “further embarrassment for past misdeeds.

Posted by M. C. on March 14, 2022

By Marjorie Cohn

Abu Zubaydah, whom the CIA once mistakenly alleged was a top Al-Qaeda leader, was waterboarded 80-plus times, subjected to assault in the form of forced rectal exams, and exposed to live burials in coffins for hundreds of hours. Zubaydah sobbed, twitched and hyperventilated. During one waterboarding session, he became completely unresponsive, with bubbles coming out of his mouth. “He became so compliant that he would prepare for waterboarding at the snap of a finger,” Neil Gorsuch wrote in his 30-page dissent in United States v. Zubaydah.

On March 3, in a 6-3 decision, the Supreme Court dismissed Zubaydah’s petition requesting the testimony of psychologists James Mitchell and John Jessen, whom the CIA hired to orchestrate his torture at a secret CIA prison (“CIA black site”) in Poland from December 2002 until September 2003. Zubaydah was transferred to other CIA black sites before being sent to Guantánamo in 2006, where he remains today with no charges against him.

Abu Zubaydah in pre-2008 photo. (DoD, Wikimedia Commons)

Zubaydah sought information: (1) to confirm that the CIA black site in question was located in Poland; (2) about his torture there; and (3) about the involvement of Polish officials. First the Trump administration — now the Biden administration — claim that confirming the location of the CIA black site in Poland is a “state secret” that would significantly harm U.S. national security interests. Zubaydah needs Mitchell and Jessen’s testimony to document his treatment from December 2002 to 2003 at the CIA black site in Poland for use in the ongoing Polish criminal investigation of Poles complicit in his torture. Those details have not been publicly documented.

Former CIA Director Mike Pompeo wrote in a declaration that although the enhanced interrogation techniques are no longer classified, the location of the CIA black site in question remains a state secret. Pompeo maintained that soliciting information about the involvement of Polish nationals in Zubaydah’s treatment could compromise national security.

But the location of the Polish CIA black site has been publicly acknowledged in several venues. The 683-page report of the Senate Select Committee on Intelligence, published in 2014, detailed the CIA detention and interrogation program, including details about Zubaydah’s torture prior to being sent to the CIA’s black site in Poland. In 2007, the Council of Europe issued a long report that found Zubaydah was held at the Polish CIA black site after his capture in 2002. The former president of Poland told reporters in 2012 that the CIA black site in Poland was established with his knowledge. In 2014, the European Court of Human Rights concluded beyond reasonable doubt that Zubaydah was held in Poland from December 2002 to September 2003.

Moreover, in 2017, the U.S. government allowed Mitchell and Jessen to testify about how they developed the idea of waterboarding, that they asked the CIA to stop using “enhanced interrogation techniques” (aka torture) on Zubaydah, and how the CIA leadership refused. Once again, in 2020, the U.S. government permitted the two psychologists to testify at military commission hearings at Guantánamo about how Zubaydah was waterboarded and kept awake for 120 consecutive hours.

Zubaydah’s attorneys sought to elicit information about Zubaydah’s conditions of confinement and the details of his treatment without risk to any state secrets. They asked that the two psychologists be allowed to testify without confirming the location of the black site or the cooperation of foreign nationals. They offered to use code words to avoid specific reference to Poland or the involvement of Polish officials.

“The Polish prosecutor already has information [that it happened in Poland] and doesn’t need U.S. discovery on the topic,” David Klein, Zubaydah’s attorney, told the court during oral argument. “What he does need to know is what happened inside Abu Zubaydah’s cell between December 2002 and September 2003. So I want to ask simple questions like, how was Abu Zubaydah fed? What was his medical condition? What was his cell like? And, yes, was he tortured?”

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