Supreme Court will decide whether waterboarded Gitmo detainee gains insight into CIA black sites
The Supreme Court will decide whether a longtime Guantanamo Bay detainee interrogated at CIA black sites around the world should gain access to information about the two men who waterboarded him in the wake of the Sept. 11, 2001, attacks. Abu Zubaydah, an alleged al Qaeda member and associate of Osama bin Laden who was captured in Pakistan in March 2002, has been held at the U.S. naval base in Cuba since 2006 after having been interrogated at a number of secret CIA locations around the world, including one widely believed to have been in Poland. The Saudi-born terrorist, now 50 years old, sought subpoenas against James Mitchell, a former clinical psychologist at the Air Force survival school, and fellow psychologist, Dr. John "Bruce" Jessen, who worked as CIA contractors to design the agency’s “enhanced interrogation program,” considered by some to be torture, and to help implement it, including waterboarding Zubaydah. A district court initially sided with the U.S. government in blocking Zubaydah’s legal efforts, but an appeals court partially sided with him, and the Supreme Court announced Monday it would hear the case after the Trump and Biden Justice Departments asked it to intervene, arguing national security would be placed at risk. Zubaydah obtained a judgment largely in his favor in the European Court of Human Rights in 2015, which detailed allegations that he was held at black sites in Thailand in 2002 and transferred to Poland in late 2002, where he was held into mid-2003, before being sent to other black sites. The Guantanamo detainee sought to use the U.S. courts to gain more information about his detention which, if successful, could affect the long-awaited trial against Khalid Sheikh Mohammed and other al Qaeda members believed to be responsible for the planning of the terrorist attacks that killed 3,000 people.
Judge Justin Quackenbush, nominated to the U.S. District Court for the Eastern District of Washington by President Jimmy Carter in 1980, quashed Zubaydah’s subpoenas against Mitchell and Jessen in February 2018. “Proceeding with discovery would present an unacceptable risk of disclosing state secrets … Upholding the state secrets privilege serves the interests of national security, an important and compelling interest," he said in the ruling. But Judge Richard Paez, nominated by President Bill Clinton in 2000, penned a September 2019 opinion for a 9th Circuit Court of Appeals panel, arguing the subpoenas could be legitimate. “We agree with the district court that certain information requested is not privileged because it is not a state secret that would pose an exceptionally grave risk to national security," Paez said, adding, "We conclude, however, that the district court erred in quashing the subpoenas in toto rather than attempting to disentangle nonprivileged from privileged information.” Circuit Judge Ronald Gould, nominated by Clinton in 1999, dissented, arguing, “The majority jeopardizes critical national security concerns in the hope that the district court will be able to segregate secret information from public information that could be discovered” and that “in this case, I would defer to the view of” former Secretary of State Mike Pompeo. Pompeo argued in March 2017, when he was still CIA director, that “the TOP SECRET information implicated in discovery … is based primarily on the need for the CIA to keep its commitment or duty of confidentiality to its officers, agents, assets, and foreign liaison officers who assisted the CIA in program-related activities.” He added: “If the Agency breaks its promises of confidentiality, the people and organizations we rely upon to accomplish our mission will be less likely to trust us.”
https://www.washingtonexaminer.com/news/supreme-court-will-decide-whether-waterboarded-gitmo-detainee-gains-insight-into-cia-black-sites
https://www.supremecourt.gov/docket/docketfiles/html/public/20-827.html
https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-146047%22]}
Husayn v. Mitchell
https://casetext.com/case/husayn-v-mitchell
https://www.supremecourt.gov/DocketPDF/20/20-827/164089/20201217194009904_20%20US%20v%20Husayn%20Pet%20Appendix.pdf