Today’s Supreme Court ruling means that lawsuits seeking to bring those responsible for the torture at black sites by the CIA during the first years of their post-9/11 war against terror will not be able to stop the United States from disclosing information regarding the CIA torture of detainees held there.
In a complex, technical ruling, six justices ruled in the federal government’s favor (though there were multiple separate opinions from different justices explaining their reasoning). Justice Elena Kagan supported a part of the ruling but dissented from another. Sonia Sotomayor, Justice Neil Gorsuch, and Sonia Sotomayor were both full dissenters.
It was the following: United States v. Zubaydah,Abu Zubaydah is the focus of the story. He was taken captive in Pakistan in 2002. The U.S. holds him since, believing that he’s a senior Al Qaeda leader planning more terrorist attacks against America. The CIA tortured him extensively and waterboarded him dozens of time. He is currently in Guantanamo bay.
Zubaydah was reportedly taken to a CIA Black Site in Poland during these interrogations. He sued the individuals responsible for torturing him. Since Poland cooperated with CIA, the European Court of Human Rights has already ruled against it. But the CIA, federal government and others have failed to validate or confirm that the black site existed. In the United States, the federal government has attempted to quash subpoenas of two former CIA contractors—James Mitchell and Bruce Jessen, the two psychologists who consulted with the agency to develop the interrogation program—as part of Zubaydah’s legal challenges. Despite the extensive coverage in the media and reports on the U.S. torture and killing of prisoner, the CIA maintains that the acknowledgment of a blacksite in Poland does not fall under the “state secrets” category and courts can’t force the CIA to divulge the details.
The Ninth Circuit Court of Appeals had ruled in favor of the federal government. They believed, like us all, that the location of this black site is now known and can be confirmed without causing harm to national security interests. Today, the Supreme Court declared that although this information is now public, it still qualifies as classified state secret.
The majority of the court’s opinion was written by Justice Stephen Breyer, who accepted the claim of the government that mere confirmation of the existence of a dark site in Poland poses a danger to national security. This ruling can be secret because it is not deferential to executive branch authority to determine what falls within a national security concern. In this case, the CIA says that revealing whether we had a black site in Poland could impact intelligence-gathering efforts and “sensitive” relationships.
Samuel Alito, Clarence Thomas, and Samuel Alito both concurred because Breyer’s opinion didn’t give enough deference to the government. Two of them worried about the possibility of a court asking for more information on any claim of national security privilege. This could lead to “judicial second-guessing” of critical national-security determinations. Thomas concluded Zubaydah only had shown a “dubious show of necessity”, and would have rejected his request. Justice Brett Kavanaugh and Justice Amy Coney Barrett also wrote that Zubaydah only had a “dubious need” for this information. However, the two are willing to have a court review that is more comprehensive if they feel the claims are more serious than in Zubaydah’s instance. Kavanaugh states that in state secrets cases, the court must defer to the Executive Branch’s complete review.
Kagan stated separately that she agreed with the U.S. about the need to confirm the location of the black sites, but that she doesn’t believe this should stop Zubaydah from filing suit. He would be allowed to submit his request to have all references from Poland removed to get the evidence he requires without having to reveal the location of the black sites.
Gorsuch was joined by Sotomayor in disapproving the majority of justices. Gorsuch published a 30-page disagreement with Sotomayor, “There comes an point where judges should not be ignorant of what citizens know,” Watts v. IndianaA 1949 Supreme Court decision that clarified that cops cannot use forced confessions to prove that they have violated the 14th Amendment as evidence in trials.
Gorsuch outlines the numerous sins committed by the CIA in its torture program. It failed to extract from Zubaydah the information it wanted. The CIA may not want to admit that there was a black site in Poland but the European Court of Human Rights ruled it so and cited over 100 pages of proof. An ex-president of Poland acknowledged the existence.
Gorsuch points out that the privilege of state secrets isn’t all-encompassing. “Even a statute which constitutionally permits federal courts on matters touching foreign affairs in most instances may, in some cases, trench on powers that Constitution reserves for Executive,” Gorsuch wrote. He claimed that the government could not use the privilege state secrets to cover up violations to which the judiciary is authorized to remedy.
Gorsuch ends with a rousing paragraph accusing the court that it allowed the CIA state secrets privilege to be used to embarrass the court.
The government seems to want this suit dropped because they hope it will impede the Polish criminal investigations and cause further embarrassment (or at the very least delay) for past crimes. This is perhaps understandable at one level. These facts are difficult to grasp. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Additional evidence may be found in government vaults. These facts are embarrassing, but there’s no secret in the state. This Court has a duty to uphold the rule of law, and search for the truth. It is important not to let shame cloud our vision.
Gorsuch, Sotomayor and others have been trying to get more transparency from executive branches about clandestine behaviour for years. The two men voted against the decision of the majority to not hear the case on whether the public can see the opinions issued by the foreign intelligence surveillance court. Gorsuch had similar concerns in this case. They both felt that the court was far too accommodating to the executive branch’s ability keep secret information by declaring it to be a national security concern. The Supreme Court insists that even though the information may not technically be secret, it is able to do this in this case.