Supreme Court asks US if Guantanamo detainee can testify about torture in state secrets case

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A view of the United States Supreme Court on June 28, 2021 in Washington, DC.

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Supreme Court justices on Wednesday asked whether the United States would allow a Guantanamo Bay detainee to testify about his allegations of torture and forcible confinement by the CIA, a move that could avoid a dispute over the government’s claim of ” privilege of state secrets ”.

The question arose at the end of the pleadings on the government’s efforts to prevent two former CIA contractors from testifying about the treatment of this detainee, Abu Zubaydah, at a so-called “black site” in Poland.

This undated file photo provided by United States Central Command shows Abu Zubaydah, date and location unknown. The Supreme Court is hearing arguments over the government’s ability to keep what it says are state secrets from a man tortured by the CIA after 9/11 and now being held at the Guantanamo Bay detention center. At the heart of the case heard on Wednesday, it is a question of whether Abu Zubaydah can obtain information relating to his detention.

US Central Command | PA

“Why not make the witness available?” Judge Neil Gorsuch asked Department of Justice prosecutor Brian Fletcher. “What is the government’s objection to the witness giving evidence of his own treatment and not requiring any confession from the government of any kind?”

Fletcher said this issue has not been resolved because the request was not made by Zubaydah’s attorneys, who say Zubaydah was not allowed to speak.

Judges Sonia Sotomayor and Stephen Breyer insisted more.

“We want a clear answer,” Sotomayor said.

“I don’t understand why he’s still here after 14 years,” Breyer added.

Zubaydah was captured in Pakistan in 2002 and has been jailed ever since, being held by the CIA in overseas detention centers without charge.

The United States believed he was a member of Al Qaeda, the terrorist group behind the September 11, 2001 attacks. In a petition to the Supreme Court, the government described Zubaydah as an “associate and ally longtime terrorist of Osama bin Laden “- a claim that Zubaydah’s lawyers have called” categorically false. “

Zubaydah asked a U.S. District Court in 2017 to allow subpoenas to question former CIA contractors James Mitchell and John Jessen about a site in Poland where Zubaydah claims to have been detained and tortured. Their testimony is said to be part of an investigation by the Polish authorities.

The government, invoking the privilege of state secrets, decided to rescind these subpoenas in their entirety. The district court granted the government’s request, but an appeals court disagreed, ruling that all the information requested was not a state secret.

The government appealed the ruling to the Supreme Court, arguing that the lower court’s decision “is gravely flawed and poses significant national security risks.”

In a brief in the Supreme Court, Zubaydah’s lawyers said the United States had banned him from offering his own testimony in the Polish inquiry.

The United States flag flies inside Joint Task Force Guantanamo Camp VI at Naval Base Guantanamo Bay, Cuba, March 22, 2016.

Lucas Jackson | Reuters

Fletcher told court on Wednesday that Zubaydah was not being held “incommunicado” but was subject to the same restrictions as other Guantanamo detainees.

Zubaydah’s lawyers allege that the CIA subjected him to a “relentless regime” of torture spanning several years and in several countries. Their High Court petition describes that he was waterboarded 83 times in a month, hung naked from hooks for hours and crammed into a small box “that would fit neatly under a chair”, among other methods.

The government acknowledges that Zubaydah’s treatment by the CIA “included the use of enhanced interrogation techniques.”

The Supreme Court is due to hear arguments next month in another case involving questions over state secret privilege. This case, FBI v. Fazaga, involves allegations that the FBI infiltrated an informant into a California mosque to track targets on the basis of their religion. Pleadings will take place on November 8.


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