Supreme Court Justices Make a Surprising Proposal in Torture Case

Twenty years after the Sept. 11 attacks, three justices said it was time to hear from the first detainee subjected to brutal interrogation by the C.I.A.

WASHINGTON — Twenty years after the Sept. 11 attacks, the Supreme Court on Wednesday found itself struggling to address two issues stemming from that period: torture and government secrecy. Before the justices were done for the day, the proceedings had taken a surprising turn.

The basic question for the justices was whether the government could invoke national security to block testimony by two C.I.A. contractors who were instrumental in the brutal interrogations of the detainee known as Abu Zubaydah, who was waterboarded more than 60 times and is being held without charge at Guantánamo Bay.

Abu Zubaydah sought to subpoena the contractors in connection with a Polish criminal investigation. The inquiry was prompted by a determination by the European Court of Human Rights that he had been tortured in 2002 and 2003 at secret sites operated by the C.I.A., including one in Poland.

The United States government invoked the state secrets doctrine to bar the contractors from testifying in an apparent effort to avoid formally admitting what is common knowledge: that Poland was host to one of the so-called black sites.

Three justices proposed a novel solution: Why not let Abu Zubaydah himself testify in connection with the Polish inquiry? By allowing him to describe what he had endured, the justices suggested, the court could sidestep the question of whether the government had to allow the C.I.A. contractors to appear.

“Why doesn’t he testify?” Justice Stephen G. Breyer asked Abu Zubaydah’s lawyer. “He was there. Why doesn’t he say this is what happened?”

The lawyer, David F. Klein, said that was not possible. “He has been held in Guantánamo incommunicado,” Mr. Klein said of his client.

In the argument’s final minutes, Justice Neil M. Gorsuch urged the government’s lawyer to allow Abu Zubaydah to testify.

“Why not make the witness available?” Justice Gorsuch asked Brian H. Fletcher, the acting United States solicitor general. “What is the government’s objection to the witness testifying to his own treatment?”

Justice Sonia Sotomayor pursued the point. “Are you going to let him testify as to what happened to him?” she asked.

Mr. Fletcher would not give a direct answer. “I’m not prepared to make representations for the United States, especially on matters of national security,” he said.

But he promised to give the court a more considered response, presumably in a letter, after consulting with other government officials.

Justice Gorsuch seemed exasperated by the government’s position.

This case has been litigated for years and all the way up to the United States Supreme Court,” he said, “and you haven’t considered whether that’s an off-ramp that the government could provide that would obviate the need for any of this?”

Justice Brett M. Kavanaugh, participating in the argument remotely after testing positive for the coronavirus last week, asked the last question, and it was an even more fundamental one. It concerned the status of the 2001 law that approved going to war against those responsible for the Sept. 11 terrorist attacks, the Authorization for Use of Military Force, or A.U.M.F.

Is the United States still engaged in hostilities for purposes of the A.U.M.F. against Al Qaeda and related terrorist organizations?” he asked, seeking to get at whether the United States still has a basis for holding Abu Zubaydah.

Mr. Fletcher said yes. “That is the government’s position,” he said, “that notwithstanding withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with Al Qaeda and therefore that detention under law of war remains proper.”

Most of Wednesday’s argument was devoted to an exploration of whether the government could invoke the state secrets doctrine to bar the C.I.A. contractors, James E. Mitchell and Bruce Jessen, from testifying about the torture of Abu Zubaydah, whose real name is Zayn al-Abidin Muhammad Husayn.

He was the first prisoner held by the C.I.A. after the Sept. 11 attacks to undergo so-called enhanced interrogation techniques, which were based on a list of suggestions drawn up for use on him by Dr. Mitchell and Dr. Jessen, both psychologists. It is undisputed that Abu Zubaydah was tortured at one or more black sites, and the justices frequently used the word “torture” to describe what he had endured.

Mr. Fletcher said Abu Zubaydah’s treatment was not a secret but that its location was. “Our nation’s covert intelligence partnerships depend on our partners’ trust that we will keep those relationships confidential,” he said.

That trust would be broken, he said, by confirming or denying the existence of an alleged C.I.A. facility in Poland.

That gave rise to a semantic puzzle. Was it possible to allow testimony from the contractors about what had happened but not where?

Chief Justice John G. Roberts said it seemed that the contractors could talk about many things other than the location of the events.

Mr. Fletcher disagreed. “You can’t take the location out of this proceeding because the whole point of the proceeding is to get evidence for a Polish investigation,” he said.

Mr. Klein, a lawyer for Abu Zubaydah, said he did not seek testimony about Poland, as a prosecutor there already had the relevant information. Rather, Mr. Klein said, he sought to provide the prosecutor with information about his client’s treatment by asking the contractors a series of questions.

“What happened inside Abu Zubaydah’s cell between December 2002 and September 2003?” he asked, giving the dates during which his client was understood to be held in Poland.

  • “How was Abu Zubaydah fed?
  • What was his medical condition?
  • What was his cell like?
  • And, yes, was he tortured?”

Justice Elena Kagan sketched out what she suggested was a gap in Mr. Klein’s argument.

The government has “conceded that Abu Zubaydah was tortured, but, because of relations with allies with cooperating intelligence services, they won’t say where it happened,” she said. “And you’re here saying: I need to know when it happened, and to know when it happened, the government would essentially be saying where it happened too.”

Abu Zubaydah, a Palestinian, was captured in Pakistan in March 2002 and was initially thought be a high-level member of Al Qaeda. A 2014 report from the Senate Select Committee on Intelligence said “the C.I.A. later concluded that Abu Zubaydah was not a member of Al Qaeda.”

Interrogation of Abu Zubaydah

Beginning in August 2002, Abu Zubaydah was the first prisoner to undergo “enhanced interrogation techniques.” Since the Spanish Inquisition, these practices have been characterized as torture.[1][2] There is disagreement among government sources as to how effective these techniques were; some officials contend that Abu Zubaydah gave his most valuable information before they were used; CIA lawyer John Rizzo said he gave more material afterward.[3]

.. Since 2006, Abu Zubaydah has been held at the Guantanamo Bay detention camp. While in CIA custody, Zubaydah lost his left eye.[4]

.. Although President George W. Bush claimed in 2006 three examples of intelligence derived from the torture of Abu Zubaydah by the CIA, which he said showed that it was justified, later reporting has established that the prisoner gave two of the names under conventional interrogation by the FBI, and intelligence analysts already had leads from other sources to the third person.[1]

.. Ali Soufan stated that “[w]e kept him alive. It wasn’t easy, he couldn’t drink, he had a fever. I was holding ice to his lips.”[6] The agents attempted to convince Abu Zubaydah that they knew of his activities in languages he understood: English and Arabic.[7][8] Both agents believed they were making good progress in gathering intelligence from Abu Zubaydah.[1][9]

 .. During these sessions, Abu Zubaydah revealed that Khalid Sheikh Mohammed, known as “Mukhtar” to Abu Zubaydah, was the mastermind of the 9/11 attacks[10] and that American José Padilla had wanted to use a “dirty bomb” in a terror attack.[1][5][6][7]
.. When the CIA interrogation team arrived a week or two later than the FBI team,[10] they concluded that Abu Zubaydah was holding back information and that harsher techniques were necessary.[5][7][9] The CIA team was led by CIA contractor and former Air Force psychologist James Elmer Mitchell.[6][11] Mitchell ordered that Abu Zubaydah answer questions or face a gradual increase in aggressive techniques.[6
.. In 2009 Soufan testified before Congress that his FBI team was removed from Abu Zubaydah’s interrogation multiple times, only to be asked to return when the harsher interrogation tactics of the CIA proved unsuccessful.[12]Ali Soufan was alarmed by the early CIA tactics, such as enforced nudity, cold temperatures, and blaring loud rock music in Zubaydah’s cell.[1][6] Soufan reported to his FBI superiors that the CIA’s interrogation constituted “borderline torture.”[8] He was particularly concerned about a coffin-like box he discovered that had been built by the CIA interrogation team.[6] He was so angry he called the FBI assistant director for counterterrorism, Pasquale D’Amaro, and shouted, “I swear to God, I’m going to arrest these guys!”[1][6] Afterward, both FBI agents were ordered to leave the facility by FBI Director Robert Mueller.[6][8][13] Ali Soufan left, but Steve Gaudin stayed an additional few weeks and continued to participate in the interrogation.[8]
.. “We were able to get the information about Khalid Sheikh Mohammed in a couple of days. We didn’t have to do any of this [torture]. We could have done this the right way.”[6]
.. Rohan Gunaratna, an al-Qaida expert and a government witness in the José Padilla case, said that “most of the information that was exceptionally useful to the fight against al-Qaida came from Abu Zubaydah, and it came before the U.S. government decided to use enhanced techniques
.. Dan Coleman, a retired FBI official and al Qaida expert, commented that after the CIA’s use of coercive methods, “I don’t have confidence in anything he says, because once you go down that road, everything you say is tainted. He was talking before they did that to him, but they didn’t believe him. The problem is they didn’t realize he didn’t know all that much.”[9]
.. Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and Mr. Padilla. This is false. The information that led to Mr. Shibh’s capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don’t add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May.[13]
.. The SERE program was originally designed as defensive in nature and was used to train American pilots and other soldiers how to resist harsh interrogation techniques and torture if they fell into enemy hands.[1][18] The program subjected U.S. military trainees to techniques such as “waterboarding . . . sleep deprivation, isolation, exposure to extreme temperatures, enclosure in tiny spaces, bombardment with agonizing sounds at extremely damaging decibel levels, and religious and sexual humiliation.”[22] For the CIA, Mitchell and Jessen adapted SERE into an offensive program designed to train CIA agents and contractors on how to use the harsh interrogation techniques or torture to get information from prisoners
.. All of the tactics listed above were later reported by the International Committee of the Red Cross as having been used on Abu Zubaydah
.. Mitchell and Jessen relied heavily on experiments done by the American psychologist Martin Seligman in the 1970s known as “learned helplessness.
.. Mitchell believed that Zubaydah must be treated “like a dog in a cage.”[1] He said the interrogation “was like an experiment, when you apply electric shocks to a caged dog, after a while, he’s so diminished, he can’t resist.”[1]
.. the Washington Post reported in 2009 that “not a single significant plot was foiled as a result of Abu Zubaida’s tortured confessions
.. A former intelligence official stated “[w]e spent millions of dollars chasing false alarms.”[27] Ron Suskind said, “we tortured an insane man and ran screaming at every word he uttered.”
.. Abu Zubaydah claims he lied under interrogation to prevent further torture.[29]

Some of the various false leads he provided are the following:

  • Al Qaeda planned on blowing up “soft targets” such as apartment buildings, supermarkets, and shopping malls.[30]
  • Attacks could occur against the Statue of Liberty and the Brooklyn Bridge.[31]
  • There were plots against banks in the Northeastern United States.[32]
  • There was going to be a nerve gas attack on a major U.S. subway system sometime around July 4.[33]
  • Al Qaeda plotted to detonate a jacket full of explosives on a civilian airliner and that the planners had used their own metal and explosive detectors to figure out how to successfully accomplish the mission.[34]
  • Al Qaeda knew how to build and smuggle a dirty bomb into the United States.[35] Abu Zubaydah later retracted this allegation.[36]

.. George Tennet who was so impressed that he initially ordered us to be congratulated. That was apparently quickly withdrawn as soon as Mr. Tennet was told that it was FBI agents, who were responsible.

.. Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity. (The harsher techniques mentioned in the memos were not introduced or even discussed at this point.) The new techniques did not produce results as Abu Zubaydah shut down and stopped talking. At that time nudity and low-level sleep deprivation (between 24 and 48 hours) was being used.

.. After a few days of getting no information, and after repeated inquiries from DC asking why all of sudden no information was being transmitted (when before there had been a steady stream), we again were given control of the interrogation. We then returned to using the Informed Interrogation Approach. Within a few hours, Abu Zubaydah again started talking and gave us important actionable intelligence. This included the details of Jose Padilla, the so-called “dirty bomber.”

.. The tapes were destroyed on November 9, 2005.[38] When this became public in 2007, the CIA Director at that time, Michael Hayden, asserted that the continued existence of the tapes had represented a risk to the CIA personnel involved.[39] He asserted that if the tapes had been leaked, they might cause the CIA personnel to be identified and targeted for retaliation.[40]

New C.I.A. Deputy Director, Gina Haspel, Had Leading Role in Torture

As a clandestine officer at the Central Intelligence Agency in 2002, Gina Haspel oversaw the torture of two terrorism suspects and later took part in an order to destroy videotapes documenting their brutal interrogations at a secret prison in Thailand.

.. On Thursday, Ms. Haspel was named the deputy director of the C.I.A.

.. the C.I.A. was a rare public signal of how, under the Trump administration, the agency is being led by officials who appear to take a far kinder view of one of its darker chapters than their immediate predecessors.

.. But President Trump has said repeatedly that he thinks torture works. And the new C.I.A. chief, Mike Pompeo, has said that waterboarding and other techniques do not even constitute torture, and praised as “patriots” those who used such methods in the early days of the fight against Al Qaeda.

.. The C.I.A.’s first overseas detention site was in Thailand. It was run by Ms. Haspel, who oversaw the brutal interrogations of two detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri.

.. Mr. Zubaydah alone was waterboarded 83 times in a single month, had his head repeatedly slammed into walls and endured other harsh methods before interrogators decided he had no useful information to provide.

.. The sessions were videotaped and the recordings stored in a safe at the C.I.A. station in Thailand until 2005, when they were ordered destroyed. By then, Ms. Haspel was serving at C.I.A. headquarters, and it was her name that was on the cable carrying the destruction orders.

.. The list notably included prominent Obama administration officials, such as James R. Clapper Jr., the former director of national intelligence (“very pleased”), and Michael J. Morell, who twice served as the C.I.A.’s acting director (“I applaud the appointment”).

.. Mr. Pompeo’s decision to elevate Ms. Haspel is also likely to be seen by the C.I.A.’s rank-and-file as a vote of confidence in their work from their new director, despite Mr. Trump’s dismissal of the intelligence community throughout his campaign and in the months between his election and inauguration.

.. The open disdain with which Mr. Trump mocked the C.I.A., especially after intelligence agencies said they believed that Russia had tried to swing the election in his favor, had raised concerns at the agency of a repeat of the unhappy tenure of a former director, Porter J. Goss.