Lawrence Hurley

WASHINGTON, (Reuters) – The U.S. Supreme Court asked Wednesday why they wouldn’t allow a high-ranking al Qaeda suspect to testify against torture by the CIA at Guantanamo bay.

As three of nine justices pressed U.S.Acting Solicitor General Brian Fletcher about the matter, the court heard oral argument in government’s attempt to stop two ex-CIA contractors being interrogated in a criminal investigation in Poland examining Abu Zubaydah’s treatment.

The justices were skeptical of Zubaydah’s attorneys, who was captured in Pakistan in 2002 by a Palestinian national and has been kept in the United States without any charges since, but some seemed to consider Zubaydah as an alternative.

“Why not make this witness available?” Justice Neil Gorsuch of the conservative Justices asked about Zubaydah. What is the government objection to the witness testifying in the witness’s own treatment, and not needing any additional from the government?”

Liberal justices Stephen Breyer, and Sonia Sotomayor appeared to be in agreement. Breyer questioned why Zubaydah is still at Guantanamo.

Breyer stated, “I don’t get why he’s still there.”

Sotomayor said, “We need a clear answer.”

Fletcher indicated that while he couldn’t make any commitments on Zubaydah being able to testify, he would be able to report back to justices. Zubaydah isn’t allowed to testify because of Guantanamo conditions, according to his lawyers.

A lower court ruling by the government that Central Intelligence Agency Contractors James Elmer Mitchell & John Bruce Jessen might be subpoenaed is being appealed. This law allows U.S. federal courts to force a request for evidence or testimony in foreign legal proceedings.

Poland is thought to have been the site of a CIA “black spot” that used brutal interrogation techniques against Zubaydah.

Zubaydah (now 50) has lived 15 years in Guantanamo. According to U.S. government records, Zubaydah was held at Guantanamo for 15 years.

A Justice Department filing stated that he was “an associate terrorist ally of Osama bel Laden”, the leader al Qaeda Islamist militant organization killed in Pakistan in 2011 by U.S. troops.

Zubaydah wants Mitchell and Jessen as witnesses and to provide documentation in connection with the Polish criminal investigation. To prevent their questioning, the U.S. government asserted “state-secrets privilege”, which is used to protect national security.

David Klein, Zubaydah’s lawyer, stated that the existence of a “black spot” in Poland was well-known and is not state secrets. According to Zubaydah’s lawyers, Mitchell and Jessen were able to testify as witnesses about the events they witnessed and heard. They could not mention the exact location. That assertion was refuted by government officials.

Klein stated that the evidence was needed to prove Zubaydah’s torture while he was in Poland.

San Francisco’s 9th U.S. Circuit Court of Appeals ruled, in 2019, that Mitchell or Jessen could be subpoenaed.

Although the U.S. government disclosed Zubaydah’s international detention and interrogation using enhanced interrogation techniques, it did not reveal the exact location. According to the 2015 European Court of Human Rights, Zubaydah has been detained in Poland since 2002 and 2003.

The Supreme Court decision is expected by June 30th.

A 2014 U.S. Senate Report confirmed details of CIA activities and concluded that interrogation techniques used were far more severe than initially disclosed. This report revealed that the CIA had misled both the White House as well as the public regarding the torture used to detainees in the wake of al Qaeda’s 9/11 attacks on the United States. Interrogations were not used to stop terrorist attacks, according to the report.

The United States held hundreds of “enemy combatants”, who were captured abroad, without bringing them to trial. Zubaydah is one of 39 remaining Guantanamo detainees https://www.reuters.com/world/us/first-under-biden-detainee-transferred-out-guantanamo-bay-2021-07-19, according to the Pentagon.

In another case https://www.reuters.com/world/us/us-supreme-court-takes-up-fbi-bid-block-muslim-civil-rights-suit-2021-06-07 involving the state secrets privilege as applied to post-Sept. 11 conduct, the justices on Nov. 8 will hear the federal government’s bid to block a civil rights lawsuit by three Muslim men from California who accused the FBI of illegally conducting surveillance on them.