Supreme Court says state-secrets doctrine protects disclosure of ‘black site’ locations in torture allegation case

The government argued the request to depose the men who interrogated Abu Zubaida “could force former CIA contractors to confirm the location of the detention site and that confirmation would itself significantly harm national security interests,” Breyer wrote. “In our view, the government has provided sufficient support for its claim of harm to warrant application of the privilege.”

He added the court’s inquiry was limited. “Obviously, the court condones neither terrorism nor torture,” he wrote, “but in this case we are required to decide only a narrow evidentiary dispute.” Abu Zubaida’s lawyers say the ruling allows them to continue to get information about his treatment.

Five justices agreed with Breyer. But three said they would not have dismissed the case, and Justice Neil M. Gorsuch wrote a stinging dissent that said the government was simply trying to minimize its shame over the treatment of Abu Zubaida, whom court documents refer to as Abu Zubaydah.

“There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” wrote Gorsuch, who was joined by Justice Sonia Sotomayor. “Ending this suit may shield the government from some further modest measure of embarrassment. But respectfully, we should not pretend it will safeguard any secret.”

The government still contends Abu Zubaida is a terrorism suspect and was a close ally of Osama bin Laden. But he denied ever being an al-Qaeda leader, and it seems clear now that he was not nearly the prize the U.S. thought when he was captured in 2002.

What is known is that he was held at “black sites” in Thailand and Poland and extensively tortured: He was subjected 83 times to waterboarding, a technique that leads victims to believe they are drowning. He lost an eye. He has testified that he was told by doctors he nearly died four times.

He and his lawyer are seeking information for prosecutors in Poland who are investigating whether any of that happened in their country, as the country’s former president has said. Abu Zubaida’s lawyer wants to question two CIA contractors, James Mitchell and John “Bruce” Jessen, about the “enhanced interrogation tactics” that were used.

The two have been public about their interrogation of Abu Zubaida, including the fact that it continued at the insistence of the CIA after they concluded he had limited information to reveal.

A district judge dismissed the case, but a divided U.S. Court of Appeals for the 9th Circuit said the judge did not do enough to untangle information that could be revealed and that which the government legitimately could withhold.

But Breyer said the United States has never officially acknowledged a black site in a particular country, and there was reason for that.

“In a word, to confirm publicly the existence of a CIA site in Country A, can diminish the extent to which the intelligence services of Countries A, B, C, D, etc., will prove willing to cooperate with our own intelligence services in the future,” he wrote.

Only Chief Justice John G. Roberts Jr. joined Breyer’s opinion in full. Justices Brett M. Kavanaugh and Amy Coney Barrett agreed with most of it. Justices Clarence Thomas and Samuel A. Alito Jr. agreed with the outcome but said Abu Zubaida had not showed why he needed the information, regardless of the government’s reasons for withholding it.

Thomas countered the somewhat sympathetic treatment Abu Zubaida received in Gorsuch’s dissent.

“Abu Zubaydah is a terrorist” and an “al Qaeda-associated senior operative engaged in active hostilities against the United States,” Thomas wrote. He added: “Zubaydah had his followers trained in English, electronics, and explosives. He planned to wage war against the United States by planting remotely operated bombs in various public locations.”.

Justice Elena Kagan agreed with Breyer that the United States had an interest in not officially disclosing black site locations, but disagreed with dismissing the case. “Both sides have substantial interests in this case — the Government in safeguarding its relationships with foreign intelligence partners; Abu Zubaydah in obtaining information needed to right past wrongs,” she wrote.

But she said the one did not foreclose the other.

“I would allow Zubaydah to amend his requests to remove all Poland-specific references, so that he can obtain testimony about his detention — in whatever country it took place,” she wrote.

Gorsuch, one of the court’s most conservative justices, was joined in his dissent by Sotomayor, the court’s most liberal.

He criticized the majority for abdicating a vigorous inquiry into the government’s claim of privilege and instead deferring “to the Executive’s mere assertion of one. Walking that path would only invite more claims of secrecy in more doubtful circumstances — and facilitate the loss of liberty and due process history shows very often follows.”

He said there was no reason to suggest 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.” And he said the facts “are hard to face.”

“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,’” he wrote. “Further evidence along the same lines may lie in the government’s vaults. 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.”

During oral arguments in the case, Gorsuch and others suggested Abu Zubaida himself might be allowed to testify to his treatment in a letter to the Polish authorities. The government later provisionally agreed but said it would retain control to edit any such statement.

The detainee’s lawyers said the proposal was unacceptable. “The Government will allow Abu Zubaydah to submit a written declaration about his treatment at the hands of the CIA so long as the CIA authorizes it,” David F. Klein wrote.

Breyer said the application of the state secrets privilege does not completely end Abu Zubaida’s options, if he can file litigation that avoids the subject the government does not want to disclose.

In a statement, Klein said, “we are pleased that the Supreme Court acknowledged that the United States Government tortured Abu Zubaydah, and agrees there is a pathway for him to finally uncover the truth about what happened to him at the hands of the CIA during a critical part of his detention. We plan to act accordingly.”