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Supreme Court Wrestles with State-Secrets Privilege in Zubaydah Case

  The more interesting aspect of the oral argument   United States v. Zubaydah , to my mind, was Justice Kavanaugh’s, in effect, calling the...

 The more interesting aspect of the oral argument United States v. Zubaydah, to my mind, was Justice Kavanaugh’s, in effect, calling the Biden administration on the president’s false claim to have ended the “Forever War”: Buzzed by the justice, DOJ’s acting solicitor general Brian Fletcher conceded the administration’s position that the war is still going on — which it must be if, for example, the administration’s continuing detention of enemy combatants and attacks on al-Qaeda targets is to be legally valid.

But the underlying case is also interesting, and I said I’d address it in a separate post.

Abu Zubaydah (the nom de jihad of Zayn al-Abidin Muhammad Husayn) was a high-ranking aide to al-Qaeda emir Osama bin Laden. He is believed to have been complicit in the 9/11 plot, among other terrorist schemes. He was captured in Afghanistan in 2002 and subjected to enhanced interrogation, including over five dozen waterboarding sessions, in the ensuing four years before being lodged at Guantanamo Bay, where he remains detained. In that four-year period, he was transferred to overseas “black sites” that the CIA was operating, with the cooperation of some foreign-intelligence services.

In 2014, the European Court of Human Rights concluded that, in 2002 and 2003, Zubaydah had been interrogated in Poland at at least one CIA black site and in a manner that constituted torture. It ordered the Polish government to pay the jihadist €100,000. (I continue to believe that the application of waterboarding and other enhanced tactics, whatever their much-debated intelligence value, did not constitute torture as a matter of American law, but that is neither here nor there for present purposes).

European and Polish authorities continue to investigate the matter, in particular the suspected participation of Polish intelligence operatives, but have had difficulty acquiring related documents and testimony — there have been extensive legal proceedings and publication of materials, but much remains classified. Zubaydah filed a lawsuit to try to force testimony and production of documents from two CIA contractors, James Elmer Mitchell and John Jessen, who have previously been identified and who have testified in other proceedings about their roles in enhanced interrogation.

That is what the case before the Supreme Court is about.

The United States has asserted the “state secrets” privilege in refusing to acknowledge the existence of a black site in Poland, as well as the identity of foreign-intelligence collaborators and the nature of their assistance. While the privilege is not popular, a) it is vital if the U.S. is going to have cooperation from foreign-intelligence services and sources (which is essential to protecting the country from foreign threats to our security); and b) it was properly invoked here — even if much of the information has already become public, the government (and particularly its intelligence services) must not publicly acknowledge information or assistance received from foreign actors based on U.S. promises of confidentiality.

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