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.”
You can read more about them here – https://www.nlg-npap.org/
Lieutenant Mark Cobel, officer of the long beach police department in california tries to assert his authority in the wrong place in the wrong way.
He handled it pretty well, and definitely better than most cops that have had the unfortunate situation of trying to step on my rights. You got to love the “Did you get your law degree on facebook?” bullshit line that ALL cops try to pull on you.
As IF its wrong to know your rights. This kind of attitude should be eliminated from the police department and you have to call them out on their bullshit like it is.
For those who are interested, I was slightly incorrect on the CVC code, its 16.08.502, not 16.16.502 , but close enough 😉 You can read it here –
For those who are interested to know how much this guy makes to harass people on bikes, here’s his salary info –
Lt. Mark Steven Coble
2014 Total pay & benefits: $205,865.00
2020 update – I heard from a friend of his (random contractor who asked me if I was the guy from the video when I was riding my bike down in the harbor) that the lieutenant has retired as of at least 2 years ago and now earns a nice six-figure pension and lives somewhere out in the mid east. I think he might have said Indiana?
2020 update #2 June – donated another $100 to NPAP – https://imgur.com/a/0td763X
Pension info –
Representative Katie Porter has a reputation for being a fierce opponent during House hearings, and she reminded the country why that is again this week when she took a fossil fuel executive to task for attempting to lie to her face. The executive tried to claim that oil companies don’t have special tax rules, but Porter was there to remind him that they do, and listed the differences between their taxes and the taxes of other corporations. Ring of Fire’s Farron Cousins discusses this.
In an interview with BBC Newsnight’s Emily Maitlis, the Duke of York, Prince Andrew has given details about his relationship with the late convicted sex offender Jeffrey Epstein and addressed allegations about sex with a teenage girl.
Anthony Fauci’s at the pool, but Donald Trump’s in deep.
Never mind Johnny Depp and Amber Heard.
You want to see a real can’t-look-away train wreck of a relationship? Look to the nation’s capital, where a messy falling out is chronicled everywhere from the tabloids to a glossy fashion magazine, replete with a photo shoot by a swimming pool.
The saga has enough betrayal, backstabbing, recrimination, indignation and ostracization to impress Edith Wharton.
The press breathlessly covers how much time has passed since the pair last spoke, whether they’re headed for splitsville, and if they can ever agree on what’s best for the children.
It was always bound to be tempestuous because they are the ultimate odd couple, the doctor and the president.
- One is a champion of truth and facts. The other is a master of deceit and denial.
- One is highly disciplined, working 18-hour days. The other can’t be bothered to do his homework and golfs instead.
- One is driven by science and the public good. The other is a public menace, driven by greed and ego.
- One is a Washington institution. The other was sent here to destroy Washington institutions.
- One is incorruptible. The other corrupts.
- One is apolitical. The other politicizes everything he touches — toilets, windows, beans and, most fatally, masks.
After a fractious week, when the former reality-show star in the White House retweeted a former game-show host saying that we shouldn’t trust doctors about Covid-19, Donald Trump and Anthony Fauci are gritting their teeth.
What’s so scary is that the bumpy course of their relationship has life-or-death consequences for Americans.
Who could even dream up a scenario where a president and a White House drop oppo research on the esteemed scientist charged with keeping us safe in a worsening pandemic?
The administration acted like Peter Navarro, Trump’s wacko-bird trade adviser, had gone rogue when he assailed Dr. Fauci for being Dr. Wrong, in a USA Today op-ed. But does anyone believe that? And if he did, would he still have his job?
No doubt it was a case of Trump murmuring: Will no one rid me of this meddlesome infectious disease specialist?
Republicans on Capitol Hill privately confessed they were baffled by the whole thing, saying they couldn’t understand why Trump would undermine Fauci, especially now with the virus resurgent. They think it’s not only hurting Trump’s re-election chances, but theirs, too.
As though it couldn’t get more absurd, Kellyanne Conway told Fox News on Friday that she thinks it would help Trump’s poll numbers for him to start giving public briefings on the virus again — even though that exercise went off the rails when the president began suggesting people inject themselves with bleach.
“How did we get to a situation in our country where the public health official most known for honesty and hard work is most vilified for it?” marvels Michael Specter, a science writer for The New Yorker who began covering Fauci during the AIDs crisis. “And as Team Trump trashes him, the numbers keep horrifyingly proving him right.”
When Dr. Fauci began treating AIDs patients, nearly every one of them died. “It was the darkest time of my life,” he told Specter. In an open letter, Larry Kramer called Fauci a “murderer.”
Then, as Specter writes, he started listening to activists and made a rare admission: His approach wasn’t working. He threw his caution to the winds and became a public-health activist. Through rigorous research and commitment to clinical studies, the death rate from AIDs has plummeted over the years.
Now Fauci struggles to drive the data bus as the White House throws nails under his tires. It seems emblematic of a deeper, existential problem: America has lost its can-do spirit. We were always Bugs Bunny, faster, smarter, more wily than everybody else. Now we’re Slugs Bunny.
Can our country be any more pathetic than this: The Georgia governor suing the Atlanta mayor and City Council to block their mandate for city residents to wear masks?
Trump promised the A team, but he has surrounded himself with losers and kiss-ups and second-raters. Just your basic Ayn Rand nightmare.
Certainly, Dr. Fauci has had to adjust some of his early positions as he learned about this confounding virus. (“When the facts change, I change my mind. What do you do, sir?” John Maynard Keynes wisely observed.)
“Medicine is not an exact art,” Jerome Groopman, the best-selling author and professor at Harvard Medical School, put it. “There’s lots of uncertainty, always evolving information, much room for doubt. The most dangerous people are the ones who speak with total authority and no room for error.”
Sound like someone you know?
“Medical schools,” Dr. Groopman continued, “have curricula now to teach students the imperative of admitting when something went wrong, taking responsibility, and committing to righting it.”
Some are saying the 79-year-old Dr. Fauci should say to hell with it and quit. But we need his voice of reason in this nuthouse of a White House.
Despite Dr. Fauci’s best efforts to stay apolitical, he has been sucked into the demented political kaleidoscope through which we view everything now. Consider the shoot by his pool, photographed by Frankie Alduino, for a digital cover story by Norah O’Donnell for InStyle magazine.
From the left, the picture represented an unflappable hero, exhausted and desperately in need of some R & R, chilling poolside, not letting the White House’s slime campaign get him down or silence him. And on the right, some saw a liberal media darling, high on his own supply in the midst of a deadly pandemic. “While America burns, Fauci does fashion mag photo shoots,” tweeted Sean Davis, co-founder of the right-wing website The Federalist.
It’s no coincidence that the QAnon-adjacent cultists on the right began circulating a new conspiracy theory in the fever swamps of Facebook that Dr. Fauci’s wife of three and a half decades, a bioethicist, is Ghislane Maxwell’s sister. (Do I need to tell you she isn’t?)
Worryingly, new polls show that the smear from Trumpworld may be starting to stick; fewer Republicans trust the doctor now than in the spring.
Forget Mueller, Sessions, Comey, Canada, his niece, Mika Brzezinski. Of the many quarrels, scrapes and scraps Trump has instigated in his time in office, surely this will be remembered not only as the most needless and perverse, but as the most dangerous.
As Dr. Fauci told The Atlantic, it’s “a bit bizarre.”
More than a bit, actually.