There’s no reasonable doubt that Zayn al-Abidin Muhammad Husayn, a Palestinian man who is often referred to as “Abu Zubaydah,” was held by the Central Intelligence Agency at a black site in Poland. Nor is there reasonable doubt that he was tortured at this black site.
Nevertheless, the Supreme Court held on Thursday, in United States v. Husayn a.k.a. Zubaydah, that these widely reported facts are “state secrets,” and that the US government may refuse to confirm or deny them.
The upshot of the Zubaydah decision is that the Court prioritized somewhat vague concerns about national security — that foreign governments might lose faith in the United States if the US government reveals “secret” programs that aren’t really secret — over getting to the bottom of a gross human rights violation.
The facts of the Zubaydah case are horrific. Zubaydah was captured in Pakistan in 2002, and American officials incorrectly believed him to be a top al-Qaeda leader. In a vain effort to extract information that he did not possess, Zubaydah was taken to a black site in Thailand and then another in Poland, where he was repeatedly waterboarded, locked in a coffin-sized box for hundreds of hours, deprived of sleep, and forced to remain in “stress positions,” among other similar tactics.
Eventually, in 2006, the CIA concluded that it had made a mistake. Zubaydah, according to the intelligence agency, “was not a member of al Qaeda.” Nevertheless, he remains a prisoner at Guantanamo Bay, Cuba.
The Zubaydah case itself arises out of a Polish investigation into Zubaydah’s treatment. In 2010, Zubaydah’s lawyers and several human rights organizations filed a criminal complaint in Poland, asking for an investigation into Polish officials who may have contributed to Zubaydah’s mistreatment. Though Zubaydah’s complaint initially achieved little, Polish prosecutors reopened the investigation after the European Court of Human Rights determined that “the treatment to which [he] was subjected by the CIA during his detention in Poland ... amount[ed] to torture.”
To aid Poland’s investigation, Zubaydah’s lawyers asked a US court to compel two psychologists and former CIA contractors, James Mitchell and Bruce Jessen, to testify regarding how Zubaydah was treated in Poland. Mitchell and Jessen helped develop the torture techniques used by the CIA — indeed, their company was paid $81 million to devise these techniques and to oversee their use. Zubaydah’s lawyers also sought documents from Mitchell and Jessen related to Zubaydah’s torture.
A federal appeals court pointed to the overwhelming public evidence — including a 712-page unclassified version of the landmark Senate torture report, a ruling by the European Court of Human Rights examining the Polish torture site, and declassified CIA communications — confirming that Zubaydah was, in fact, tortured by the CIA in Poland. The appeals court concluded that at least some of the information sought by the man’s lawyers should be turned over. Although the federal government may sometimes conceal military and other national security secrets under a doctrine known as the “state secrets” privilege, Judge Richard Paez wrote that “in order to be a ‘state secret,’ a fact must first be a ‘secret.’”
Thursday’s Supreme Court decision reverses Paez, concluding that “sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege.”
The crux of the Supreme Court’s decision: Foreign governments need to be able to trust US promises
The Zubaydah case produced a maze of concurring opinions, partial dissents, and full dissents. And the justices divided on fairly unfamiliar lines. Justice Stephen Breyer, a left-leaning Clinton appointee, wrote the Court’s main opinion. Justice Neil Gorsuch, an archconservative Trump appointee, dissented — in an opinion joined by liberal Obama appointee Justice Sonia Sotomayor.
In any event, Gorsuch spends several pages of his dissent laying out the overwhelming weight of evidence confirming that Zubaydah was tortured by the CIA in Poland. Here’s a small excerpt:
As far back as 2007, the Council of Europe issued a lengthy report finding that the CIA held Zubaydah at a black site in Poland after his capture. In 2012, Aleksander Kwasniewski, the President of Poland from 1995 to 2005, told reporters that the CIA site was established “with [his] knowledge.” In 2014, the European Court of Human Rights found “beyond reasonable doubt” that Zubaydah was detained in Poland from December 2002 until September 2003. In support of its conclusion, the ECHR cited evidence spanning over 100 pages, including declassified flight records, Polish governmental records, and eyewitness testimony.
Additionally, a 2014 Senate Intelligence Committee report detailed the CIA’s use of torture. Though the full report is classified, Zubaydah’s name appears 1,343 times in an unclassified executive summary of that report and its accompanying documents.
Despite the weight of all this evidence, the Supreme Court concluded that the federal government can refuse to “confirm or deny whether Poland had cooperated with the CIA.”
To justify this decision, Breyer points to a declaration by former CIA director Michael Pompeo arguing that America’s “‘sensitive’ relationships with other nations are ‘based on mutual trust that the classified existence and nature of the relationship will not be disclosed.’” If the US government confirmed that Zubaydah was tortured in Poland, that would “breach” this trust and threaten the United States’ ability to convince foreign governments to cooperate in the future.
Or, as Justice Elena Kagan argued in a separate opinion concurring with most, but not all, of Breyer’s approach, “official confirmation would conflict with commitments the Government has made to foreign intelligence services to never disclose clandestine relationships,” and foreign governments need to be able to trust the United States’ promises.
The Court — or, at least, its Republican majority — isn’t always so concerned about ensuring the United States keeps its promises to foreign governments. Just last August, the Court effectively forced the Biden administration to resume a controversial program requiring many Central American asylum seekers to remain in Mexico while they pursue their asylum claims in the United States. The Court did so, moreover, despite the fact that the Biden administration told the Mexican government that it would end this program.
Nevertheless, the Zubaydah case concludes with a bloodless, pragmatic assessment of national security interests, even when that assessment requires the Court to turn a blind eye to an atrocity.
It’s unclear just how much this decision will prevent anyone from understanding what happened to Zubaydah in Poland. As Breyer notes, “Zubaydah’s need” for more evidence that he was tortured in Poland “is not great.” His lawyer conceded that “we know where Abu Zubaydah was. We want to establish how he was treated there.” Still, many of the details of his treatment can be found in the Senate Intelligence Committee report and elsewhere.
But the result of Thursday’s opinion is that the Supreme Court — and the US government more broadly — is one of the few entities on the planet that refuses to acknowledge what happened to Zubaydah.