In a scathing dissent, Neil Gorsuch accused the government of seeking dismissal of Abu Zubaydah’s petition to avoid “further embarrassment for past misdeeds.”
Great Hall of the U.S. Supreme Court. (Adam Fagen, Flickr, CC BY-NC-SA 2.0)
Abu Zubaydah, whom the CIA once mistakenly alleged was a top Al-Qaeda leader, was waterboarded 80-plus times, subjected to assault in the form of forced rectal exams, and exposed to live burials in coffins for hundreds of hours. Zubaydah sobbed, twitched and hyperventilated. During one waterboarding session, he became completely unresponsive, with bubbles coming out of his mouth. “He became so compliant that he would prepare for waterboarding at the snap of a finger,” Neil Gorsuch wrote in his 30-page dissent in United States v. Zubaydah.
On March 3, in a 6-3 decision, the Supreme Court dismissed Zubaydah’s petition requesting the testimony of psychologists James Mitchell and John Jessen, whom the CIA hired to orchestrate his torture at a secret CIA prison (“CIA black site”) in Poland from December 2002 until September 2003. Zubaydah was transferred to other CIA black sites before being sent to Guantánamo in 2006, where he remains today with no charges against him.
Abu Zubaydah in pre-2008 photo. (DoD, Wikimedia Commons)
Zubaydah sought information: (1) to confirm that the CIA black site in question was located in Poland; (2) about his torture there; and (3) about the involvement of Polish officials. First the Trump administration — now the Biden administration — claim that confirming the location of the CIA black site in Poland is a “state secret” that would significantly harm U.S. national security interests. Zubaydah needs Mitchell and Jessen’s testimony to document his treatment from December 2002 to 2003 at the CIA black site in Poland for use in the ongoing Polish criminal investigation of Poles complicit in his torture. Those details have not been publicly documented.
Former CIA Director Mike Pompeo wrote in a declaration that although the enhanced interrogation techniques are no longer classified, the location of the CIA black site in question remains a state secret. Pompeo maintained that soliciting information about the involvement of Polish nationals in Zubaydah’s treatment could compromise national security.
But the location of the Polish CIA black site has been publicly acknowledged in several venues. The 683-page report of the Senate Select Committee on Intelligence, published in 2014, detailed the CIA detention and interrogation program, including details about Zubaydah’s torture prior to being sent to the CIA’s black site in Poland. In 2007, the Council of Europe issued a long report that found Zubaydah was held at the Polish CIA black site after his capture in 2002. The former president of Poland told reporters in 2012 that the CIA black site in Poland was established with his knowledge. In 2014, the European Court of Human Rights concluded beyond reasonable doubt that Zubaydah was held in Poland from December 2002 to September 2003.
Moreover, in 2017, the U.S. government allowed Mitchell and Jessen to testify about how they developed the idea of waterboarding, that they asked the CIA to stop using “enhanced interrogation techniques” (aka torture) on Zubaydah, and how the CIA leadership refused. Once again, in 2020, the U.S. government permitted the two psychologists to testify at military commission hearings at Guantánamo about how Zubaydah was waterboarded and kept awake for 120 consecutive hours.
Zubaydah’s attorneys sought to elicit information about Zubaydah’s conditions of confinement and the details of his treatment without risk to any state secrets. They asked that the two psychologists be allowed to testify without confirming the location of the black site or the cooperation of foreign nationals. They offered to use code words to avoid specific reference to Poland or the involvement of Polish officials.
“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 court during oral argument. “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?”
Deferring to Pompeo’s Spurious Claims
Mike Pompeo while serving as U.S. secretary of state under President Donald Trump. (Gage Skidmore)
The Ninth Circuit Court of Appeals held that the state secrets privilege did not apply to information already publicly known, and since Mitchell and Jensen are private parties, their disclosures would not be attributed to the U.S. government. But the Supreme Court disagreed and reversed the Ninth Circuit’s decision, deferring to Pompeo’s spurious national security claims.
Stephen Breyer (whose less-than-liberal voting record I documented in my February 5 Truthout article) wrote the plurality opinion, joined by five of his right-wing colleagues on the court. Gorsuch filed a scathing dissent on behalf of himself and Sonia Sotomayor. Elena Kagan agreed with the dissent that Zubaydah’s petition should not be dismissed, but she disagreed with the dissent’s reasoning.
Even though it was widely known that the site where Zubaydah was tortured was located in Poland, the court’s plurality agreed with the Biden administration and held that allowing Mitchell and Jessen to testify at a criminal proceeding in Poland would officially reveal a state secret — i.e., the location of the CIA black site in Poland — that could harm national security.
“[A] court should exercise its traditional ‘reluctan[ce] to intrude upon the authority of the Executive in military and national security affairs,”’ Breyer wrote. He cited Pompeo’s claim that “sensitive” relationships with other countries are “based on mutual trust that the classified existence and nature of the relationship will not be disclosed.”
The plurality rejected the Ninth Circuit’s conclusion that since Mitchell and Jensen are private parties, their disclosures did not amount to the U.S. confirming or denying anything. Because the psychologists “worked directly for the CIA as contractors,” created and implemented the enhanced interrogation program, and personally interrogated Zubaydah, their confirmation or denial “would be tantamount to a disclosure from the CIA itself,” Breyer concluded.
Thus, the court held, Zubaydah cannot secure the testimony of Mitchell and Jensen about any of his three requested categories of inquiry, including the details of Zubaydah’s torture during the period in question.
Gorsuch’s Dissent
Justice Neil Gorsuch in 2019. (LBJ Library)
“Nothing in the record of this case suggests that requiring the government to acknowledge what the world already knows to be true would invite a reasonable danger of additional harm to national security,” Gorsuch wrote in dissent. He noted that the government has the burden to prove it is entitled to assert the state secrets privilege, and it has failed to carry that burden.
Decrying the court’s failure to even probe the government’s privilege claim at all, Gorsuch observed, “We have replaced independent inquiry with a rubber stamp.”
“The Constitution did not create a President in the King’s image but envisioned an executive regularly checked and balanced by other authorities,” Gorsuch declared. He cited the executive branch’s over-classification of documents and cautioned the court against “abdicating any pretense of an independent judicial inquiry into the propriety of a claim of privilege and extending instead ‘utmost deference’ to the Executive’s mere assertion of one.”
The dissent accused the government of seeking dismissal of Zubaydah’s petition to avoid “further embarrassment for past misdeeds.” Gorsuch noted that “our government treated Zubaydah brutally — more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls ‘rectal rehydration.’”
Indeed, as Zubaydah’s attorney Joseph Margulies said in 2016, Abu Zubaydah is “the poster child for the torture program, and that’s why they never want him to be heard from again.”
Gorsuch concluded his dissent by writing, “But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.”
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. Her books include Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues. She is co-host of “Law and Disorder” radio.
This article is from Truthout and reprinted with permission.
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
If there’s a hell, then I hope there’s a special place in it for all torturers and the beasts who shield them. These people (??) are sadistic psychotic barbarian cowards. That includes “we tortured some folks” Obama. Curse them all.
“Decrying the court’s failure to even probe the government’s privilege claim at all, Gorsuch observed, “We have replaced independent inquiry with a rubber stamp.”
So Gorsuch has belatedly realized what the minority of rational observers have know for a very long time; that this is the only thing the supreme court has ever been. I suppose better late than never.
Wait- isn’t Gorsuch supposed to be one of those horrible, ‘fascist’ conservatives?
Much like the previous commenter “evelync” Justice Breyer disappointed me and the opinion by Justice Gorsuch was a pleasant surprise.
Thanks to Prof. Marjorie Cohn for writing an excellent account of this very questionable SCOTUS denial of access to a Constitutionally mandated right to the legal redress of grievances; especially odious when it prevents a victim of criminal treatment by employees of the U.S. government that have all sworn an oath to uphold the very same Constitution, one that these six pretenders in the majority are appointed and confirmed to uphold.
Thanks also to TRUTHOUT & CONSORTIUM NEWS for publishing this very prescient information.
As Usual,
Thom Williams
PS Is not the Mike Pompeo mentioned herein the same degenerate that tried to
have Julian Assange murdered?
Wow! Just wow!
This comment section must be the one of the few places where people actually engage in critical thinking. Outstanding.
I honestly don’t know why we keep tolerating the “Supreme Court” as they seem to be shredding the Constitution at every opportunity. Had enough yet?
Agreed 100%. The faux sanctimonious aura the establishment so desperately fights to maintain for the SCOTUS is embarrassing to anyone who understands what truth and justice actually mean. Full Stop.
We have an activist court that has been exposed for exactly what it is. Don’t take your eyes off them for a New York second.
Instead of dispensing justice and protecting the constitution the “high” court has become and agent of the Authoritarian Right’s Deep State.
The courts “Citizens United” ruling if it remains as currently documented by the court will kill the country. At the best it may. in the end result in US civil war.
I’m old enough that I had enough when they killed JFK. Something I didn’t recognized at 13 years of age but come to realize after being drafted in 1968.
Thanks CN
The court becomes part of the crime.
Anyone who still believes that we live in a country of rule of law, or that any of the three branches of our government is not a joke, and that the Supreme Court is not a Kangaroo Court (my apologies to kangaroos) needs to wake up.
Everyone involved in the widespread torture as well as those who have been protecting the torturers should get the Nuremberg treatment. And I still hope they will done day. BTW, Putin is a dictator, right?
Anyone still believing that the U.S. Supreme Court has any connection to the concept of justice or provides a check on executive power, here’s yet another exhibit of why We the People should get rid of these clowns in robes and ferry them off to where they belong: Nursing Homes.
One Nation Under God,,, Wayyyy Downnn Under…Uncomfortably Warm…Under…
The bureaucrats anyway. ;-{
The US Supreme Court said it’s okay to conceal inhuman (criminal) treatment for the purpose of national security?
The fact the decision was not unanimous says that they are only half right. Not very supreme!
Decisions should be unanimous, not half-baked.
The US Supreme Court chose to allow and protect criminal behavior by a separate branch (if the CIA is really a branch) sounds like collusion or a breach of the separation of powers.
It’s time to fire some despots.
For God’s sake, professor Cohn, don’t call torture “enhanced interrogation techniques.”
Not just murder…the US gets away with a lot more…much more…too much.
The cruelty and lack of any humanity in the US “liberal democracy” have long been noted by many of us, even within the USA. How anyone can keep on with this wanton vicious torture of anyone, let alone someone the USA had no possible right to hold in the first place, is inexplicable to me.
I suppose the media control which allows only the demonisation of any opposition or the complete obliteration of any word from the designated enemy, as we see in this “Ukraine-Russia war” makes the USA appear as the good guy to anyone who has not the time or energy to seek the truth.
The US judiciary are almost wholly corrupted by several very effective processes:
1. Their prior careers are as crooked lawyers seeking deceptions and excuses rather than fair interpretations of law;
2. They are appointed for making decisions favoring those who control political parties by economic power; and
3. Their primitive tribalism defends only their political party and other lawyers and judges, rather than the people.
These processes ensure that corruption increases from the district to the appeals courts, and to the Supreme Court.
The Supreme Court handles only about one percent of the cases submitted as Petitions for Certiorari (consideration).
The judiciary never requests more judges: they need the excuse to dump the cases they find unprofitable.
They let mere clerks decide 99 percent of the cases by making false summaries to be denied in committee.
I will never forget Roberts’ crooked clerk, who insisted that my petition could not be considered by claiming that it was in the wrong type style and size, despite being shown the font receipt and told on how to measure type size. I had to threaten to sue the clerk and his boss for perjury, and send a page of the petition to every judge of the court with dimensions marked and the definition of type size. At last they accepted the petition but denied its consideration.
A crooked judge of the Massachusetts district committed obvious and undeniable perjuries in her instructions to the jury in a case of property taking by government, making extreme false statements of the longstanding federal law. She wanted an excuse for theft, and the law simply did not matter. There was no choice but to sue the judge in the same court for perjury. That judge refused to consider the very clear and undeniable legal case at all, merely denouncing the complaint because, he claimed without evidence or argument, no judge could ever commit perjury, thereby very deliberately committing perjury himself. The appeals court refused to consider the evidence and legal argument at all, never even raised the issues of law, and the Supreme Court refused to consider the case. The perjury was undeniable.
Yeah but look over there.. *Putin!*
Yeah…but two wrongs have never made one right. It is always the US that keeps bragging about ‘human rights’ and ‘democracy’.
You beat me to it !
Thank you Marjorie Cohn!
From the beginning, when Gorsuch backed away from Trump’s compromising (I thought) embrace at the lecturn where he was introduced as Trump’s pick, I sensed then that he had integrity, a backbone, and the character to stand up against political control and would hopefully stand up for what his conscience told him was right.
I’m sorry to say that I always considered Breyer the opposite. Serving an agenda of politicized corporate sleaziness that taints our justice system and that is alive and well today at the top with the failure to give Julian Assange the freedom, respect and recognition as someone who has valued truth and risked all to share its dark side with the people who deserve to know what is done in our name with our tax dollars.
We have a politicized Supreme Court with, apparently, some people of character like Gorsuch, Sotomayor and Kagan who don’t buckle to the sleezy whims of the wrongdoers in our government.
Well said evelync!
And Breyer sided with the statists !
One wonders: how and when did Breyer become a “liberal” ? i.e., in the eyes of “liberal” commenters on the Court ?