Lawrence Hurley

WASHINGTON (Reuters] – On Thursday, the U.S. Supreme Court ruled that because of national security concerns, two former CIA contractors can’t be questioned as part of a Polish probe into Abu Zubaydah. He was a high ranking al Qaeda figure and had repeatedly been subject to waterboarding torture.

The Justices decided 6-3 that Central Intelligence Agency contractor James Elmer Mitchell can’t be subpoenaed according to a U.S. Law that allows federal courts in the United States to force a request for witness or evidence in a foreign legal proceeding. Zubaydah (50) is among 39 detainees still held at Guantanamo bay, Cuba, the U.S. naval station.

Because it could jeopardize U.S. security, the court ruled that the government can invoke the so-called “state secrets privilege” in order to stop contractors being interrogated in the Polish criminal investigation into their involvement in Zubaydah’s questioning.

Poland may have been the “black site”, where the CIA applied harsh interrogation tactics against him. According to U.S. government records, Zubaydah was deprived of one eye and subjected himself to waterboarding – a method of simulated drowning – 83 times within a month.

Justice Stephen Breyer stated in his ruling that the testimony of contractors “would be tantamount a disclosure by the CIA itself.”

Breyer said, “For these reasons we conclude that the state secrets privilege in this instance applies to the existence or nonexistence of a CIA Facility in Poland.”

Six justices ruled that Zubaydah should not be allowed to ask for leave. Conservative Neil Gorsuch, and liberals Sonia Sotomayor & Elena Kagan argued that the case should return to the lower courts.

Gorsuch wrote strongly worded oppositional opinions that were joined by Sotomayor, which stated that many of the claims made by the government about being a secret are already well-known.

Gorsuch said, “There’s a point at which we don’t need to be ignorant of what citizens know is true.”

“Ending this suit could shield the government against some additional modest measure embarrassment. Gorsuch said, “But respectfully we shouldn’t pretend it will protect any secret.”

Zubaydah (Palestinian) was taken into custody in Pakistan in 2002. He has been kept by the United States ever since without being charged. Guantanamo is where he has been held for over 15 years.

David Klein was Zubaydah’s attorney. He stated that, even though the court had ruled against him, it allowed him to file an amended request, which would not require the disclosure of the location. Klein explained that this means that he can finally discover the truth about his detention at the hands the CIA in a crucial part.

The Justice Department refused to comment.

Some justices questioned why Zubaydah was not allowed to be interviewed during the October oral arguments. The Justice Department told court later that Zubaydah would send a declaration to the Polish investigator, but it would need to be carefully reviewed. Zubaydah’s lawyers deemed this unacceptable.

Zubaydah, according to a Justice Department filing was “an associate terrorist ally of Osama bel Laden”, the leader of al Qaeda Islamist militant groups that were killed by U.S forces in Pakistan in 2011.

Multiple cases brought against Guantanamo prisoners challenging their detention have been dismissed by the justices. Zubaydah has had her own case pending before lower courts for over a decade.

Although the U.S. government disclosed Zubaydah’s international detention and interrogation using enhanced interrogation techniques, it did not reveal whereabouts. Zubaydah was found in Poland by the European Court of Human Rights in 2002 and 2003.

San Francisco-based 9th U.S. Circuit Court of Appeals ruled 2019 that Mitchell or Jessen could be subpoenaed. The Justice Department then appealed to Supreme Court.

A 2014 U.S. Senate Report confirmed details of CIA activities. It concluded that interrogation techniques used were worse than initially disclosed, and that the White House was misled by the public regarding tortures of prisoners held abroad following al Qaeda’s September 11, 2001 attacks.