Source: Pro Publica
Date: October 7, 2021
Thirteen years ago, suspected terrorist Abu Zubaydah filed a petition challenging the legality of his detention. In a Supreme Court hearing about state secrets, justices asked why federal courts have declined to rule on the case.
The Supreme Court on Wednesday waded into the case of Abu Zubaydah, a terrorism suspect whose request that the U.S. release him from Guantanamo Bay or charge him with a crime has languished without action for more than 13 years.
The court was hearing a case on another issue: Whether the U.S. government could cite “state secrets” to prevent Zubaydah’s lawyers from taking depositions from the CIA contractors who subjected Zubaydah to waterboarding and other methods of torture.
But several justices appeared baffled by a question ProPublica raised more than six years ago: Why have the federal courts declined to rule on the petition Zubaydah filed back in July 2008 challenging the legality of his detention?
The Supreme Court ruled in June of 2008 that Guantanamo detainees had a right to file what is known as a habeas corpus petition — the phrase is Latin for “you have the body.” Habeas actions require the government to go before a judge and either release the person it is holding or bring charges. Zubaydah’s lawyers have been trying without success to elicit a ruling ever since.
In their questions at Wednesday's oral arguments, the justices appeared unaware that Zubaydah’s plea for release has yet to be heard.
“Have you filed a habeas or something, get him out?” Chief Justice John Roberts wanted to know.
Yes, 14 years ago, replied Daniel F. Klein, Zubaydah’s lawyer.
That answer seemed to confound several of the justices.
“They don’t decide?” Justice Stephen Breyer asked. “You just let him sit there?”
“I don’t understand why he is still there after 14 years,” Breyer said later to the government counsel, Brian H. Fletcher.
Zubaydah’s lawyers filed a habeas action in 2008 — a month after the Supreme Court ruling that granted Guantanamo detainees that right — in federal court in Washington, D.C., and it was assigned to Judge Richard W. Roberts. Roberts made no substantive rulings in the years that followed and had failed to rule on any of the 16 motions by Zubaydah’s lawyers when he left the bench in 2016. The case was then assigned to Judge Emmet Sullivan, who has yet to rule on the petition.
The right of a detained person to file a habeas petition seeking release dates back to the Magna Carta, and the Supreme Court has said in other cases that it is meant to be a “swift and imperative remedy.”
Frustrated by the inaction in the case, Zubaydah’s lawyers filed what is known as a writ of mandamus with the federal appeals court in 2019 asking that the higher court order Sullivan to rule. It was a highly unusual move, as lawyers do not like to antagonize judges hearing their cases.
The appeals court denied the motion, but there has since been some movement in the case. Sullivan has issued a discovery order, requiring the CIA to turn over some documents to Zubaydah’s lawyers. Among them were Zubaydah’s medical records, which his lawyers have been seeking since 2009.
The documents that the CIA turned over were heavily redacted, and the agency has said that it will take as long as six years to complete its review of what can be made public.
Zubaydah, now 50 years old, has been in American custody since 2002, first held, and tortured, by the CIA interrogators at so-called black sites in Thailand and Poland, before being sent to Guantanamo, where he has been held since 2003. Those facts are not in dispute and have been described in a Senate report. Poland’s former president has acknowledged his country’s role in holding Zubaydah.
The case before the justices on Wednesday arose as a result of an ongoing Polish investigation into whether the country’s officials were complicit in the mistreatment of Zubaydah.
Zubaydah’s lawyers said they were prepared to assist that inquiry by taking depositions from James Mitchell and Bruce Jessen, the two psychologists who questioned Zubaydah while he was at the black site in Poland. Both were CIA contractors.
The Trump administration moved to bar any questioning of Mitchell and Jessen, saying official confirmation of where he was held would reveal a state secret.
Strikingly, justices frequently used the word “torture” to describe what happened to Zubaydah in Poland and at a black site in Thailand, rather than the euphemism preferred at the time by the Bush administration, “enhanced interrogation techniques.”
“The fact that he was tortured by these [CIA] contractors in Poland, that’s not a state secret?” Justice Amy Coney Barrett asked Zubaydah’s lawyer at one point. She used the word “torture” several times in her questioning of both sides.
Justice Neil Gorsuch asked whether the government could avoid confirming any secrets if Zubaydah himself testified about how he was treated. This would sidestep the official confirmation that would arise from allowing the CIA contractors to describe what they had done.
Fletcher repeatedly refused to say whether the Biden administration would permit Zubaydah to give sworn testimony for use in the Polish case, prompting a pointed question from Gorsuch.
“I’d just really appreciate a straight answer to this. Will the government make Petitioner [Zubaydah] available to testify as to his treatment during these dates [when he was held in Poland]?” Gorsuch asked the government.
Fletcher said he couldn’t answer that.
Gorsuch wasn’t happy. “This case has been litigated for years and all the way up to the United States Supreme Court, and you haven’t considered whether that’s an off-ramp that — that the government could provide that would obviate the need for any of this?”
After a further dodge by the government lawyer, Gorsuch said again, “I personally would like a straight answer to that question.”
Justice Sonia Sotomayor joined, “We want a clear answer, are you going to permit him to testify as to what happened to him those dates without invoking a state secret or other privilege? Yes, no. That’s all we’re looking for.”
Raymond Bonner is a regular contributor to ProPublica. He is producing a documentary with Alex Gibney about Abu Zubaydah and the CIA’s interrogation program called “The Forever Prisoner,” which is scheduled for release in December.
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