The US supreme court is set to hear arguments about the government’s ability to keep what it says are “state secrets” from a Palestinian man who endured brutal torture by the CIA following 9/11 and is now held at Guantánamo Bay.
At the center of the case being heard on Wednesday is whether Abu Zubaydah, who was captured in Pakistan in 2002, can get information related to his detention.
Zubaydah and his lawyer want to question two former CIA contractors about Zubaydah’s time at a secret CIA facility in Poland where they say he was held and tortured.
A federal appeals court sided with Zubaydah, and said that though the government maintained that the information should be kept secret, a judge should determine whether any information he is seeking can be disclosed.
The case has its origins in the aftermath of the September 11 attacks when the CIA set up a detention and interrogation program designed to collect intelligence about terrorist plots against Americans.
As part of that program, the agency set up secret prisons, so-called black sites, in other countries and used extreme interrogation techniques now widely viewed as torture.
Zubaydah, the first person in the CIA program, spent four years at CIA black sites before being transferred to Guantánamo Bay in 2006.
He was initially described as an al-Qaida leader, but the agency by 2006 had concluded he had not even been a member of the group. He has, however, been held at Guantánamo ever since, with no prospect of release.
According to a 2014 Senate report on the CIA program, among other things Zubaydah was waterboarded more than 80 times and spent more than 11 days in a coffin-size confinement box.
He is seeking information from former CIA contractors James Mitchell and John “Bruce” Jessen, who are considered the architects of the interrogation program.
Zubaydah wants evidence from them as part of a criminal investigation in Poland into his detention at a black site there.
The US government has never publicly acknowledged a CIA black site in Poland, though the former president of Poland has and its existence has also been widely reported in the media.
Zubaydah and his attorney note that Mitchell and Jessen have testified twice before in other situations, including hearings at Guantánamo, and that Mitchell wrote a book about his experience. They say they want non-privileged information from the men such as the details of Zubaydah’s “torture in Poland, his medical treatment, and the conditions of his confinement”.
The Biden administration, like the Trump administration before it, says the information should not be disclosed because it would do significant harm to national security.
The United States has declassified a significant amount of information about the former CIA program but certain information, including the locations of former CIA detention facilities, cannot be declassified without a risk to national security, the administration says.
A federal court initially ruled that Mitchell and Jessen should not be required to provide any information. But an appeals court ruled 2-1 that the lower court made a mistake in ruling out questioning entirely before attempting to separate what can and cannot be disclosed.
In its briefs before the supreme court the government says Zubaydah was “an associate and longtime terrorist ally of Osama bin Laden”. Zubaydah’s lawyers say the CIA was mistaken in believing he was a high-ranking member of al-Qaida.