Acting Solicitor General Brian H. Fletcher — responding to questions from three justices during oral arguments earlier this month — penned a letter to the court on Friday informing the justices that Zubaydah could provide a declaration in the pending case. But Fletcher stressed that any information could be subject to redaction if the information might “prejudice the security issues of the United States.” He also said the testimony would not resolve the dispute that is currently before the justices concerning the scope of the “state secrets” privilege, a legal doctrine available to the government to protect information that is says could threaten national security.
The unusual letter from Fletcher came after the justices heard oral arguments on October 6 in a case brought by Zubaydah’s American lawyers
who are seeking to subpoena two CIA contractors, James Mitchell and John Bruce Jessen
, who worked on the CIA program. The lawyers want to use the information in criminal proceedings in Poland in order to hold Polish officials accountable for their complicity in what Zubaydah has said was his unlawful detention and torture in a CIA facility in Stare Kiejkuty, Poland.
At oral arguments, the justices seemed receptive to claims from the Biden administration that it could shield information pertaining to Zubaydah’s detention in order to protect foreign partners and not breach their trust. But the arguments took an unusual twist when three justices, Stephen Breyer,
Neil Gorsuch and Sonia Sotomayor, seemed to look for an off ramp in the case. They asked the government why Zubaydah himself couldn’t testify.
Fletcher, who appeared surprised by the question, responded that Zubaydah is subject to the same restrictions that apply to similar detainees at Guantanamo. His communications are “subject to security screening for classified information and other security risks.” But he told the justices the government would be “happy to respond” more formally.
Zubaydah was captured in Pakistan in March 2002.
A district court ruled in favor of the government in the case, but the 9th US Circuit Court of Appeals rejected its blanket assertion of the state secrets privilege over some of the information in the case. In doing so, it overruled the judgment of then-CIA Director Mike Pompeo regarding the potential harm to national security. The court noted that the fact that the CIA had operated a detention facility in Poland, and details surrounding Zubaydah’s torture was no longer a state secret in part because it had been disclosed in other legal proceedings as well as a congressional report. Disclosure of that information, the court said, would not cause grave danger to national security.
During arguments earlier this month, Fletcher told the justices that any attempt to compel the contractors to release the details would harm “covert intelligence partnerships” that depend upon “our partners’ trust that we will keep those relationships confidential.”
He said the contractors’ subpoenas should be blocked because the men would be testifying in a proceeding “designed to investigate and prosecute our alleged former allies abroad.”
The federal appeals court should have deferred to the CIA’s expertise in the matter and not make its own assessment of national security harms, Fletcher said. The government has already declassified a significant amount of information, including details of Zubaydah’s treatment and the use of enhanced interrogation techniques. But it determined that certain categories of information, including the identities of its foreign intelligence partners and the location of its CIA detention facilities, should not be declassified in order to protect national security. A Senate Intelligence Committee report later detailed that Zubaydah experienced at least 83 waterboard applications.
David Klein, a lawyer for Zubaydah, said the information was necessary to better understand the conditions in his client’s cell and how he was tortured.
“We are not talking about a secret anymore,” Klein said. “We are talking about a governmental wish not to assist this Polish investigation.”
The justices probed the level of deference courts owe to the government when it comes to state secrets, but they also raised questions about the fact that the information would be used not in a US proceeding, but in a foreign court.
Although Justice Elena Kagan said a claim of state secrets could be “farcical” at times when the information was in the public realm,
Chief Justice John Roberts also pointed out the “breach of faith with our allies and friends around the world.”
Justice Clarence Thomas pushed Klein on the fact that a lot of the information had already been disclosed. “Why do you need additional testimony?” he asked.
But as they grappled with the case, Breyer brought up the separate issue concerning Zubaydah’s testimony. He asked the government, “Why don’t you ask Zubaydah?”
Gorsuch also asked Fletcher point blank: “Why not make the witness available?” Gorsuch suggested if the government did so, it would no longer be required to make any kind of direct admission.