WASHINGTON — Twenty years after the September 11 attacks, the Supreme Court on Wednesday found itself struggling to address two issues stemming from that period: torture and government secrecy. Before justice was done for the day, the proceedings had taken a surprising turn.
The basic question for the judges was whether the government could invoke national security to block the testimony of two CIA contractors who were instrumental in the brutal interrogation of a detainee known as Abu Zubaydah, who was killed more than 60 times. was submerged in water and was being held without charge. Guantanamo Bay.
Abu Zubayda sought to summon contractors in connection with the Polish criminal investigation. The investigation was prompted by a determination by the European Court of Human Rights that he was tortured in 2002 and 2003 at secret sites operated by the CIA, including one in Poland.
The United States government invoked the state secret doctrine to prevent contractors from testifying in an apparent attempt to avoid formally accepting common sense: Poland was hosting one of the so-called black sites.
Three judges proposed a new solution: Why was Abu Zubaydah not allowed to testify himself in connection with the Polish investigation? By allowing him to explain what he had suffered, the judges suggested, the court could sidestep the question of whether the government was supposed to allow CIA contractors to appear.
“Why doesn’t he testify?” Justice Stephen G. Breyer asked Abu Zubaydah’s lawyer. “He was there. Why doesn’t he say it happened?”
Lawyer David F. Klein said that was not possible. “He has been placed in Guantanamo incommunicado,” Mr. Klein said of his client.
In the final minutes of the argument, Justice Neil M. Gorsuch urged the government’s counsel to allow Abu Zubeida to testify.
“Why not provide a witness?” Justice Gorsuch asked Brian H. Fletcher, Acting Solicitor General of the United States. “What objection does the government have to the witness testifying for his treatment?”
Justice Sonia Sotomayor pursued this point. “Will you let him testify about what happened to him?” He asked.
Mr Fletcher would not give a direct answer. “I am not particularly prepared to represent the United States on matters of national security,” he said.
But he promised to give the court a more thoughtful response, possibly in a letter, after consulting with other government officials.
Justice Gorsuch seemed annoyed with the government’s position.
“This case has been litigated over the years and all the way up to the Supreme Court of the United States of America,” he said, “and you haven’t considered whether this is an off-ramp that the government can provide that can help anyone. eliminate the need. This?”
Justice Brett M. Kavanaugh, participating in arguments from afar after testing positive for the coronavirus last week, asked the final question, and it was even more fundamental. This relates to the status of a 2001 law that approved going to war against those responsible for the September 11 terrorist attacks, authorization for the use of military force, or AUMF.
“Is the United States still engaged in hostilities for the purposes of the AUMF against Al Qaeda and related terrorist organizations?” He asked, to know whether the United States still had grounds to capture Abu Zubaydah.
Mr. Fletcher said yes. “This is the position of the government,” he said, “that despite the withdrawal of troops from Afghanistan, we continue to engage in hostilities with al Qaeda and therefore the detention is justified under the law of war.”
Much of Wednesday’s argument was devoted to the exploration of whether the government was able to handle CIA contractors, James E. The state may invoke the secret doctrine to prevent Michelle and Bruce from testifying about the torture of Jessen, Abu Zubaydah, whose real name is Zain al-Abidin. Muhammad Hussain.
He was the first prisoner held by the CIA after the September 11 attacks to undergo so-called advanced interrogation techniques, which were based on a list of suggestions prepared for use on him by psychologists, Dr. Mitchell and Dr. Jessen. It is undeniable that Abu Zubaydah was tortured in one or more black places, and the judges often used the word “torture” to describe what he had endured.
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Mr Fletcher said Abu Zubaydah’s cure was no secret but that it was his location. “Our country’s secret intelligence partnership depends on the confidence of our partners that we will keep those relationships confidential,” he said.
By confirming or denying the existence of an alleged CIA facility in Poland, he said, that trust would be broken.
This gave rise to a semantics puzzle. Was it possible to testify from contractors about what had happened but where not?
Chief Justice John G. Roberts said it seems contractors can talk about a lot of other things besides the location of the events.
Mr Fletcher disagreed. “You can’t take the place from this proceeding because the whole point of the proceedings is to get evidence for the Polish investigation,” he said.
Mr Klein, Abu Zubeida’s lawyer, said he did not seek testimony about Poland, as a prosecutor there already had relevant information. Rather, Mr. Klein said, he sought to provide information about his client’s treatment to the prosecutor by asking contractors a series of questions.
“What happened inside Abu Zubeida’s cell between December 2002 and September 2003?” He asked stating the dates during which it was understood that his client was held in Poland. “How was Abu Zubeida fed? What was his medical condition? How was his cell? And, yes, was he tortured?”
Justice Elena Kagan sketched what she suggested was a gap in Mr Klein’s reasoning.
The government “accepted that Abu Zubaydah was tortured, but because of ties with allies of the Allied intelligence services, they would not say where it happened,” she said. “And here’s what you’re saying: I need to know when it happened, and to know when it happened, the government would essentially be saying where it happened.”
Abu Zubeida, a Palestinian, was captured in Pakistan in March 2002 and was initially believed to be a high-level member of Al Qaeda. A 2014 report by the Senate Select Committee on Intelligence stated that “the CIA later concluded that Abu Zubeida was not a member of al Qaeda.”