(Washington Insider Magazine) -This week, the Supreme Court discussed the issue of fading secrecy around United States’ torture methods. The court debated Wednesday, Oct. 6 about the role of US courts in preserving the remaining secrecy surrounding the increasingly well-known truth that the CIA tortured terrorist detainees nearly 20 years ago during the early years of the war on terror.
The case before the justices, involving the alleged torture of al Qaeda operative and Guantanamo detainee Abu Zubaydah while he was being held in Poland in 2002 and 2003, raises questions about whether and when judges can override executive branch decisions on national security and so-called “state secrets.”
While Zubaydah is urging former CIA contractors James Mitchell and John Jessen to testify to aid a Polish investigation into his treatment in that country, Justice Neil Gorsuch suggested a simpler solution: have Zubaydah himself testify about what happened to him during his detention in Poland.
The government’s attorney, acting Solicitor General Brian Fletcher, said Zubdaydah could testify via affidavit or other means, but he warned that his statements could be sanitized of classified information, which is the same reason the government is opposing the demand for Mitchell and Jessen’s testimony.
While much of the litigation in the case has focused on whether the government can use the state secrets privilege to prevent any response to Poland, Klein claims that the publication of a Senate Intelligence Committee report in 2014 and testimony by the two psychologist contractors in military commission proceedings exposed the CIA’s tactics.
The Senate report detailed that Zubaydah had been waterboarded — subjected to a form of simulated drowning — 83 times.
At the end of the debate, Trump nominee Justice Brett Kavanaugh chimed in, prompting Fletcher to state the Biden administration’s position that the detention of Zubaydah and most of the others at Guantanamo is justified, under Congress’s 2001 Authorization for Use of Military Force. Kavanaugh said this is due to the United States still being engaged in active hostilities with al Qaeda.
