Guantanamo Bay: CIA 'torture programme' in spotlight at US Supreme Court

The United States Supreme Court is considering whether Abu Zubaydah, one of Guantanamo's "forever prisoners", can gain access to information regarding his treatment, in a case that shines a light on the CIA's notorious use of "enhanced interrogation" methods in the aftermath of the 9/11 attacks.

The court heard oral arguments on Wednesday in the case between the US government and Abu Zubaydah, who was captured nearly two decades ago and held, according to his lawyers, at numerous CIA "black sites" overseas. There, he was subject to a number of torture treatments, including waterboarding, sleep deprivation, and being confined in a small coffin-like box, according to a checklist provided by Justice Department lawyers in the infamous "Torture memos" of August 1, 2002.

In 2006, he was transferred to the Guantanamo Bay military prison, where he remains.

Guantanamo Bay: US court grapples with detainees' constitutional rights

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The detainee has been pursuing legal claims against Polish officials he alleges were complicit in his detention and treatment at a black site in Poland, and he is seeking to subpoena two former CIA contractors who were involved in creating the US's war on terror-era torture programme.

The US government argues that parts of the information Abu Zubaydah is calling for should be barred under the state secrets privilege, including the black site's location, while his lawyers argue otherwise.

The court case centres around the issue of state secrets, but Abu Zubaydah's lawyers also note that it brings to national attention Washington's torture programme, much of which has been already detailed in a 700-page Senate Intelligence Committee report that references him more than 1,300 times.

Still, the government has continued to keep many parts of this programme classified to this day.

"​​Really what's at stake is whether torture in a democracy can ever be kept secret," Joseph Marguiles, co-counsel for the Guantanamo detainee, told Middle East Eye.

While there have been several other Supreme Court cases involving Guantanamo detainees more than a decade ago, Abu Zubaydah's case is unique in that it is the first that involves the CIA's enhanced interrogation techniques.

"Abu Zubaydah was the first person cast into a black site, the first person to have his interrogation 'enhanced', and was the poster child for the torture programme. He was the person for whom they wrote the Torture memo," Marguiles said.

Continued US denial

For several years, the US government has maintained the argument that any information surrounding the Guantanamo detainee's interrogation and treatment should continue to remain a secret.

In 2017, then-CIA director Mike Pompeo filed a formal claim of the state secrets privilege, arguing that even after "time passes, media leaks occur, or the political and public opinion winds change", the disclosure of the information regarding the location of detention facilities could jeopardise its relations with other foreign intelligence services.

A federal appeals court, however, ruled in 2019 that some of the information could be unclassified, with judges noting that the European Court of Human Rights already ruled in 2014 that Abu Zubaydah had been tortured at CIA black sites, including one in Poland.

"In order to be a 'state secret', a fact must first be a 'secret'," Judge Richard Paez wrote in his opinion.

Despite this, under the administration of US President Joe Biden, the government's arguments remain the same.

In their written brief to the Supreme Court, US government lawyers have argued that the information surrounding the location of the CIA's black sites across the world should remain classified because it would cause "undue harm to the national security".

'To what extent is the United States going to continue to refuse to really reckon with what happened in its post-9/11 war on terror?'

- Carmen Cheung, Center for Justice and Accountability

"The fact that the government is still trying to keep aspects of this unlawful programme officially secret almost two decades after it tortured Abu Zubaydah is extraordinary, and shows the extent to which both Republican and Democratic administrations have shielded the CIA from accountability," said Dror Ladin, staff attorney at the American Civil Liberties Union, which filed an amicus brief in support of Abu Zubaydah.

"The fact that Abu Zubaydah himself is still indefinitely imprisoned without charge at Guantanamo, unable to testify about his own torture, is shameful."

Carmen Cheung, executive director of the Center for Justice and Accountability, told MEE that the case represents "this pretty consistent refusal by the US government to really acknowledge, confirm, or deny any of the core details surrounding" the actions of the CIA in the aftermath of the 9/11 attacks.

"This case isn't a referendum on the programme. It isn't necessarily about pining about whether that programme was legal or not," said Cheung, who has also filed an amicus brief in support of Zubaydah.

"There's a bigger stake here which is: to what extent is the United States going to continue to refuse to really reckon with what happened in its post-9/11 war on terror, and particularly with respect to the CIA torture programme?"

State secrets privilege

Abu Zubaydah, whose given name is Zayn al-Abidin Muhammad Husayn, is a Palestinian who was born and raised in Saudi Arabia. He was captured in a US-Pakistani raid in Faisalabad, Pakistan, in 2002.

At the time of his capture, the CIA, along with then-President George W Bush, publicly claimed that he was a top-level al-Qaeda leader with direct connections to Osama bin Laden.

According to the Senate Intelligence Committee report, he was interrogated using techniques which amounted to torture, including being waterboarded 83 times in one month, hung naked from a ceiling, and deprived of sleep for 11 straight days.

But in 2006, the CIA conceded that Abu Zubaydah was never a senior member of al-Qaeda - because he was never a member of the armed group to begin with.

During his nearly two decades in captivity, he has never been charged or tried.

Abu Zubaydah's case is one of two that the Supreme Court will deliberate over the state secrets privilege, which allows the government to block the release of information in a legal case that would cause harm to national security.

Next month, the court will consider the case of the Federal Bureau of Investigation (FBI) v Fazaga, which arose out of the use of an FBI informant to secretly surveil Muslim communities in southern California more than a decade ago.

A legal source familiar with the cases told MEE that both of them have the potential to set a legal precedent over the government's ability to hide information from the public and shield it from addressing any rights violations it committed.

"If the Supreme Court decides that the government can end litigation based on its unilateral claim of secrecy, that's very dangerous for the rule of law and for the US's obligations to provide a forum for redress for serious human rights abuses," said the source, who asked to remain anonymous.