Two
psychologists who devised the CIA’s post-9/11 system of US “enhanced
interrogation”, which has been widely denounced as torture, cannot be
called to testify in a case in Poland brought by a terrorism suspect
subjected to the abuses, the supreme court has ruled.
In a 6-3 ruling on Thursday,
the court allowed the US government to block the psychologists from
giving evidence in a case brought by Abu Zubaydah, a Guantánamo prisoner
who was arrested in 2002 and has been held without charge ever since.
The majority of the justices granted the government the privilege of
“state secrets” – a power that prevents the public disclosure of
information deemed harmful to national security.
Zubaydah had wanted to call the psychologists, James Mitchell and Bruce Jessen,
to confirm that he had been unlawfully detained and tortured in a
so-called CIA “black site” in Stare Kiejkuty, Poland. It is public
knowledge that the prisoner was tortured in a number of black sites in several countries between 2002 and his transfer to Guantánamo four years later.
Among the many harrowing torture techniques that were applied against him, he was waterboarded – a form of controlled drowning – 83 times.
In
Thursday’s ruling, the nine justices of the supreme court divided along
unusual lines that crossed the traditional conservative-liberal divide.
The majority opinion was written by Stephen Breyer, the court’s senior
liberal justice who is retiring at the end of this term.
In
his opinion, Breyer argued that the government was entitled to assert
the “state secrets” privilege even though the critical information in
question – in this case the location of a CIA black site in Poland – was
already publicly known. Breyer agreed with the CIA that “clandestine”
relations between the US and foreign intelligence services were based on
trust and had to be protected in the interests of national security.
Two
justices dissented from the opinion – the liberal justice Sonia
Sotomayor and conservative Neil Gorsuch. In a lengthy rebuttal, Gorsuch
pointed out that the torture to which Zubaydah was subjected had been
extensively chronicled in official reports, books and movies.
“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,” he wrote.
Elena Kagan,
the court’s third liberal justice, stood apart from the majority
opinion, arguing that the case should have been allowed to proceed in a
lower court.
Mark
Denbeaux, a lead lawyer for Zubaydah, said that the court’s ruling
would have a detrimental impact on public accountability. “More truth
can’t come out. Whatever the psychologists would have said can’t come
out. It’s just endless secrets.”
Denbeaux
added that the evocation of the state secrets privilege was entirely in
line with the past 20 years in which the CIA had relentlessly labored to
keep the details of the torture program from being revealed. “Even
before they started to torture him the CIA demanded that if he died he
would be cremated immediately and if he did not die he would be held
incommunicado forever. And they have got what they wanted.”
Though
the Zubaydah case ultimately failed to dent the wall of secrecy that
has been erected around the CIA’s torture program, it was remarkable in
one other regard. When the supreme court heard arguments in the case in
October, several of the justices openly referred to the prisoner’s interrogation as a form of torture.
Amy
Coney Barrett, one of the conservative justices appointed to the court
by Donald Trump, talked about “the evidence of how he was treated and
his torture”. It was the first time that the nation’s highest court had
used the “torture” word with regard to Guantánamo detainees and their
treatment in the wake of the terrorist attacks on 9/11.