Biden Tells Supreme Court Torture Is a State Secret

Biden wants to keep secret what is already well-known, that Abu Zubaydah was tortured, reports Marjorie Cohn. 

Abu Zubaydah. (US Defense Dept./Wikimedia Commons)

By Marjorie Cohn

When Abu Zubaydah was apprehended in Pakistan in 2002, the George W. Bush administration falsely characterized him as chief of operations for al-Qaeda and Osama bin Laden’s number three man. For the next four years, the CIA sent Zubaydah to its “black sites” in Thailand and Poland where he was viciously tortured. In 2006, Zubaydah was taken to Guantánamo, where he remains to this day. He has never been charged with a crime.

The torture of Abu Zubaydah is thoroughly documented in the 2014 report of the Senate Select Committee on Intelligence. In fact, several of the justices at the October 6 Supreme Court oral argument in United States v. Zubaydah referred to his treatment as “torture.”

Zubaydah’s lawyers detailed the torture he suffered in their brief (which referenced the Senate torture report) as follows:

“On 83 different occasions in a single month of 2002, he was strapped to an inclined board with his head lower than his feet while CIA contractors poured water up his nose and down his throat, bringing him within sight of death. He was handcuffed and repeatedly slammed into walls, and suspended naked from hooks in the ceiling for hours at a time. He was forced to remain awake for eleven consecutive days, and doused again and again with cold water when he collapsed into sleep. He was forced into a tall, narrow box the size of a coffin, and crammed into another box that would nearly fit under a chair, where he was left for hours. He was subjected to a particularly grotesque humiliation described by the CIA as ‘rectal rehydration.’”

Nevertheless, the Biden administration told the high court that Zubaydah’s well-known torture is a “state secret” because former CIA Director Mike Pompeo said publicizing it would harm national security. Thus, Solicitor General Brian Fletcher argued, the two contractors who orchestrated Zubaydah’s torture in Poland should not be permitted to testify in a Polish court’s criminal investigation into the treatment of Zubaydah.

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But as Justice Elena Kagan said, “At a certain point, it becomes a little farcical, this idea of the assertion of a privilege, doesn’t it? I mean, if everybody knows what you’re asserting privilege on, like, what exactly does this privilege.… It’s not a state secrets privilege anymore.”

“Ultimately, the question in this case is whether torture can be kept secret. In a democracy, the answer to that question has to be no,” attorney Joseph Margulies, who represents Zubaydah, told Truthout. “The state secrets doctrine must never be used to prevent an accounting for torture done in our name. If ‘state secrets’ means ‘protect torture,’ before long we won’t have a state to protect.”

Biden Asks Court to Prevent Testimony of Psychologists Who Tortured Zubaydah in Poland

The Biden administration seeks to prevent testimony of psychologists James Mitchell and Bruce Jessen, who have already testified in a prior case and in the military commission at Guantánamo. Mitchell and Jessen were the chief architects of the CIA’s “enhanced interrogation techniques,” the U.S. government’s euphemism for torture. They were paid more than $80 million for their vile work.

Continuing Donald Trump’s attempts to thwart the psychologists’ testimony, the Biden administration claims that if Mitchell and Jessen admit Zubaydah was tortured at a CIA black site in Poland, it will create a “breach of trust” with the Polish government.

“The Polish prosecutor already has information [that it happened in Poland] and doesn’t need U.S. discovery on the topic,” David Klein, Zubaydah’s attorney, told the justices. “What he does need to know is what happened inside Abu Zubaydah’s cell between December 2002 and September 2003. So I want to ask simple questions like, how was Abu Zubaydah fed? What was his medical condition? What was his cell like? And, yes, was he tortured?”

Zubaydah’s Testimony Would Be an ‘Off Ramp’ From the Litigation, Gorsuch Says

The U.S. Supreme Court building. (Joe Lauria)

After the Supreme Court engaged in an extensive back-and-forth exchange about the parameters of the state secrets privilege, Justices Stephen Breyer, Neil Gorsuch and Sonia Sotomayor all insisted that Zubaydah himself, who was an eyewitness to his torture, should be allowed to testify instead of the psychologists at the Polish proceeding. That would circumvent the state secrets issue, they noted. Gorsuch called it an “off ramp” to avoid additional litigation.

Klein said, “Abu Zubaydah cannot testify because he is being held incommunicado. He has been held in Guantánamo incommunicado.”

“Why, Why?” Breyer asked, astounded that Zubaydah is still being held in Guantánamo after 15 years. “In Hamdi [v. Rumsfeld], we said you could hold people in Guantánamo. The words were: Active combat operations against Taliban fighters apparently are going on in Afghanistan. Well, they’re not anymore.”

Brett Kavanaugh asked Fletcher,

“Is the United States still engaged in hostilities for purposes of the AUMF [Authorization for Use of Military Force] against Al Qaeda and related terrorist organizations?” Fletcher replied, “That is the government’s position, that notwithstanding the withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with Al Qaeda and, therefore, the detention under law of war remains proper.”

Kavanaugh and Fletcher apparently overlooked the fact that “the C.I.A. later concluded that Abu Zubaydah was not a member of Al Qaeda,” according to the Senate torture report. And the AUMF that Congress gave Bush after 9/11 only authorized the president to use military force against those groups and individuals responsible for the 9/11 attacks.

Four Presidents Used State Secrets Privilege in ‘War on Terror’

Interior of the U.S. Supreme Court. (Picryl)

Joe Biden is not the first president to invoke the state secrets privilege in the “war on terror.” The Bush administration used the privilege to evade accountability for torture, to silence whistleblowers and prevent disclosure of its extraordinary rendition program (where the CIA sent people including Zubaydah to other countries to be tortured). Bush’s assertion of the privilege did not, however, succeed in keeping the publicly acknowledged National Security Agency surveillance program secret.

The Obama administration invoked the privilege to block judicial inquiry into extraordinary rendition. It also used the privilege to hide Barack Obama’s “kill list” that authorized the CIA and the Defense Department to kill civilians with no showing of imminent threat. And the Trump administration utilized the privilege in Zubaydah’s case and another torture case, as well as to preclude release of an FBI report about Saudi complicity in the 9/11 attacks.

Will the Supreme Court accept Biden’s assertion of the state secrets privilege to prevent testimony of Mitchell and Jessen in the Polish court? Will the Court urge the executive branch to allow Zubaydah to testify about his torture at the CIA’s black site in Poland? Will the Court suggest that the executive reconsider the indefinite detention of Zubaydah in light of the U.S. withdrawal from Afghanistan? We will know by June 2022.

This case is a pivotal test of the willingness of the Supreme Court to check and balance the executive when it perpetrates torture and other war crimes in its “war on terror.” In 2016, Margulies said that Abu Zubaydah is “the poster child for the torture program, and that’s why they never want him to be heard from again.”

Copyright Truthout. Reprinted with permission. Correction: This quote was initially attributed to Fletcher instead of Klein: “Abu Zubaydah cannot testify because he is being held incommunicado. He has been held in Guantánamo incommunicado.”

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the bureau of the International Association of Democratic Lawyers and the advisory board of Veterans for Peace. She testified before Congress about the Bush torture policy. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse.

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18 comments for “Biden Tells Supreme Court Torture Is a State Secret

  1. Piotr Berman
    October 13, 2021 at 01:43

    First, they tortured logic.

    SCOTUS, which created “doctrines” that defy concepts of the Constitution and public interest is not a novice in this endeavor. Be it lowly township police or the highest ranked official, they are shielded from responsibility for criminal acts. The public gets convinced they they are safer if police, military and intelligence services commit crimes that increase their “security”. Politicians compete over who has more resolve to commit those crimes.

    Nevertheless, judges have some impulses to be logical and have some vestiges of feeling for justice. But those feeble feelings exist in the context of ingrained deference to government arguments, however flimsy.

  2. robert e williamson jr
    October 11, 2021 at 13:47

    Let us face the truth. Marjorie Cohn set the table very convincingly and evelync seems to have presented a convincing argument for the prosecution. If we just had one.

    The current potus is showing the fatal weakness. He cannot deal with the truth. Get that in your head because every president since the inception of state secrets idea has abused the practice. Except JFK, lets us consider he was surrounded by a rather large number of conspirators who were against his policies.

    I have some news for Dfnslblty who seems to think the scotus represents some form of justice. Think again. If the Doj or Scotus were interested in meting out justice we would not be here.

    Think about what it is you expect and who you expect it from. State secrecy exists because the Doj and Scotus have blindly allowed state secrets safe harbor.

    Acts which facilitate the secrecy Biden claims as sacrosanct, while these actions are sanctimonious playing to the over blown arrogance and activist behavior of the conservative members of said kangaroo court.

    The state secrets ruse is ruining the country and it is way past time for some justice. The countries highest court and most important protectors are in direct conflict with reality and it is obvious.

    I implore everyone to give this some serious thought.

    Than ks CN

  3. Jeff Harrison
    October 11, 2021 at 09:46

    Sadly, this will not end well. This so-called “state secrets” exemption does not exist, really. It was created out of thin air by the SC in a case in the 1950’s wherein the widows of several scientists killed in a B-29 accident sued the government for a document that they said would place responsibility for the deaths of their husbands on the USG. The government objected and claimed that it would damage “national security” to release the document. The SC agreed. The ironic thing is that when this document was declassified 30 years later, one discovered that (a) it said exactly what the widows claimed it said, and (b) the part of the document that the widows wanted to present in court was actually unclassified. For those of you unfamiliar with USG classification, a document receives a classification level equal to its highest level of classification but each paragraph in the document has its classification level separately identified. At the end of the day, there is no “state secrets” exemption in the constitution and it rather flies in the face of the sixth amendment. Its use by the government continues its use to hide government crimes and corruption. This is a blatant example.

  4. Dfnslblty
    October 11, 2021 at 09:32

    potus46 is NOT concerned with state secrets — the concern is with culpability — his and the potus’ before him.
    Mitchell & Jensen did their evil in secret.
    Black sites were secretive.
    Culpability extends much wider than potus46.
    State secretiveness has injured the american people as well as purported enemies.
    Let scotus do its work freely.

    • Skip Edwards
      October 11, 2021 at 12:21

      We are what we have allowed ourselves to become – a pitiful citizenry of a country which hides behind its “false idols”, freedom and democracy. The torture we inflict on this man will go down in our history as proof that our government becomes what all empirical governments eventually become; swollen with orgasmic power over others and a self perpetuating greed for ever more power. How we allowed this to happen is a reflection on each of us, as our Constitution gives us the ability to change things.

    • rosemerry
      October 11, 2021 at 12:55

      How can anyone in positions of authority in the USA have the hide to claim to be in a “democratic”, “free” country which tells others how to behave and sanctions those who disobey its self-serving “rules”???

  5. Zhu
    October 11, 2021 at 04:17

    Any American could be the next Abu Zubaydah.

  6. Zhu
    October 10, 2021 at 19:48

    How long before a well-connected American can pay to have a personal enemy “disappeared”, tortured, made the target of an assassination?

      October 11, 2021 at 09:12

      It’s called “organized crime” in America and it’s been around a long time.

  7. Zhu
    October 10, 2021 at 18:56

    Will any future president give up on torture, “disappearing” people into secret prisons, or “targetted assassination”, that is, murder by a death squad? I doubt it.

    Lots of well-off D. and R. Americans think “it won’t happen to me! I’m good, they’re bad!” But I don’t believe that. I, WASPish American, am just as likely to be tortured to death in a secret prison so some CIA/FBI appartchik can get a promotion as anyone. It can happen to anyone. :-(

  8. evelync
    October 10, 2021 at 17:59

    Thank you Marjorie Cohn for your excellent reporting on this case before the Supreme Court.

    We violated U.S. Law and we refuse to admit it:

    “20. TORTURE (18 U.S.C. 2340A)
    Section 2340A of Title 18, United States Code, prohibits torture committed by public officials under color of law against persons within the public official’s custody or control. Torture is defined to include acts specifically intended to inflict severe physical or mental pain or suffering. (It does not include such pain or suffering incidental to lawful sanctions.) The statute applies only to acts of torture committed outside the United States. There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States or the alleged offender is found within the United States, irrespective of the nationality of the victim or the alleged offender.”

    RE: “ But as Justice Elena Kagan said, “At a certain point, it becomes a little farcical, this idea of the assertion of a privilege, doesn’t it? I mean, if everybody knows what you’re asserting privilege on, like, what exactly does this privilege.… It’s not a state secrets privilege anymore.” Good for Justice Elena Kagan.

    The docudrama “The Report” tells that grisly story.

    RE: ” In 2016, Margulies said that Abu Zubaydah is “the poster child for the torture program, and that’s why they never want him to be heard from again.” Sadly, whistle blowers like Assange and anyone else who exposes the war crimes are also not “to be heard from again”.

    Ironically, our “war on terror” against “Al Qaeda” emerged from Rummy/Cheney’s firing of 400,000 “elite guard” Iraqi soldiers some of whom went on to manufacture Al Qaeda, having been stripped of their income.
    I can’t figure out whether Cheney/Rumsfeld were incompetent or intentionally wreaked havoc. Or some macabre intertwining of both. With a side of masochism thrown in.

    Are we nuts? This is all so nauseating. Who does Biden and his Justice Dept think they’re kidding?

    Zubaydah belongs in the hospital. And/or a courtroom.?The American people deserve to hear the truth. It’s disappointing that our government doesn’t have the gumption to stand up in the Polish courts with the truth either.? This horrific charade, in the end, proves how disrespected we all are. But they lose our trust with this denial.

    RE: “Justices Stephen Breyer, Neil Gorsuch and Sonia Sotomayor all insisted that Zubaydah himself, who was an eyewitness to his torture, should be allowed to testify”.

    We may finally see a crack in the illusions spun around this “war on terror”.

    • Skip Edwards
      October 11, 2021 at 12:31

      To evelync, thanks for your insight and well written reply

  9. Carolyn L Zaremba
    October 10, 2021 at 11:32

    Excellent article. It reveals the massive corruption of the U.S. government and its continuation of war crimes against the innocent. It confirms what socialists have been telling people about Joseph Biden and his administration. Our exposure of Biden’s support for war and imperialism fell on deaf ears from the elections of last year to this day. Total ignorance of Biden’s entire political career has made malleable sheep out of his supporters. American people are so heavily propagandized by the corporate/government media that they remain putty in the hands of the imperialists and big capital. Torture goes on in their names and they don’t realize that the millions of dollars given to torturers is money that should be paying for health care and unemployment insurance. The government twists the laws and uses legal jargon in defense of its crimes against humanity. This must end.

  10. Me Myself
    October 10, 2021 at 09:59

    What about the other state secret that it’s not a democracy ?

  11. TomG
    October 10, 2021 at 06:32

    Just when I think I can’t be sickened more than I already am by each successive administration and our hypocrisy towards justice, here we go again. This is despicable.

    • Carolyn L Zaremba
      October 10, 2021 at 11:33


    • Skip Edwards
      October 11, 2021 at 12:35

      And, more of us with each passing year feel the same. Will our Constitution survive?

      • October 12, 2021 at 03:46

        This post is very amazing and informative

Comments are closed.