Later this year, the Supreme Court will hear its first case involving the CIA’s Rendition, Detention, and Interrogation program, more commonly called “the Torture Program.” In United States v. Husayn (Abu Zubaydah), the Court will consider whether and to what extent James Mitchell and Bruce Jessen, the architects of that program, can testify about their actions at a foreign “black site.”
The legal question turns on the scope of the state secrets privilege. A doctrine the Supreme Court fashioned to protect military secrets during the Cold War, the privilege recognizes the Executive Branch’s ownership over classified information and concomitant entitlement to withhold that information, including in judicial proceedings.
In criminal cases where the government asserts a need to protect classified information, district judges are given considerable discretion under the Classified Information Procedures Act to accommodate the nation’s need to protect its secrets and the due process rights of a criminal accused. Similar flexibility has been given to district judges in habeas cases, such as those involving Guantanamo detainees. But in most civil cases, including civil rights litigation, the state secrets privilege has been increasingly interpreted as giving the Executive Branch the right to demand dismissal outright. In other words, though the courts use a scalpel to protect classified information in criminal cases and certain categories of habeas cases, the courts have increasingly resorted to the ax in civil cases.
In Husayn, however, the Ninth Circuit Court of Appeals bucked this trend. In a 2-1 decision, the majority held that, like any other evidentiary privilege (such as that given to doctors, lawyers, spouses, clergy, etc.), a district judge has an obligation to allow a case to go forward if doing so can be done without disclosing what the privilege holder has the right to withhold. Judge Gould dissented on the ground that “The majority jeopardizes critical national security concerns in the hope that the district court will be able to segregate secret information from public information that could be discovered.” He would, in short, dismiss the entire case whenever the Executive Branch insisted that dismissal was required to protect the nation’s secrets.
What makes Abu Zabaydah’s case exceptional are the stakes. If the Executive Branch prevails, it will earn the right to effectively strip the courts of jurisdiction over any case involving its use of torture a generation ago. And that would be a dangerous precedent.
The Case of Abu Zubaydah
The issue before the Supreme Court arises from the infamous case of Zayn al-Abedin Muhammad Husayn, aka Abu Zubaydah, the first man taken into the Torture Program. Abu Zubaydah was arrested in late March, 2002, based on intelligence that led some in the government to believe he was a high-ranking member of al-Qaeda. During the arrest, Abu Zubaydah was shot and seriously injured. As he lay in a hospital bed being treated for his injuries, CIA officials decided to transfer him to a secret facility where they believed he would be shielded from the prying eyes of the International Committee of the Red Cross and beyond the jurisdiction of any U.S. court; the first CIA black site, identified in the Senate Torture Report (at 23-24) as “Detention Site Green.”
At first, Abu Zubaydah was interrogated by FBI Special Agent Ali Soufan. In the immediate aftermath of the September 11th attacks, few people were as committed to hunting down Al-Qaeda as Soufan. Then in his early thirties, Soufan had spent nearly the whole of his career in the FBI tracking Al-Qaeda. After the USS COLE was bombed in Aden, Yemen, in October 2000, Soufan was sent to do the on-the-ground investigation. His longtime mentor at the FBI, John O’Neill, had been killed in the World Trade Center. A Lebanese immigrant, Soufan was one of the few FBI agents who could speak fluent Arabic and understood the many facets of Islam.
When Soufan encountered Abu Zubaydah, he found a naked, sleep deprived, and badly injured man. Seeing his vulnerable state, Soufan gave him a towel to cover himself. When Abu Zubaydah lost bowel control, as he often did due to his injuries, Soufan saw to it that he would be cleaned up. When he appeared dehydrated, Soufan gave him ice, tea, or a Coke. And with this “rapport building,” as FBI agents call it, Abu Zubaydah opened up to Soufan about what he knew. He described rumors of a “dirty bomb” plot being planned by an American, who turned out to be Jose Padilla. And he identified the “mastermind” of the September 11th attacks as Khalid Sheikh Mohammed, a fact entirely unknown to the government at the time.
Yet, some officials in the U.S. government remained unsatisfied. Abu Zubaydah, they figured, must have known more. Based on the preliminary intelligence that had led them to Abu Zubaydah in the first place, they continued to believe – erroneously it turned out – that he was a senior leader of al-Qaeda and knowledgeable about all their operational plans. And when the information obtained by Soufan was not consistent with that belief, they concluded not that their information might be mistaken, but that Soufan was being too gentle.
The First Torture Experiment
In mid-April, responsibility for Abu Zubaydah’s questioning was transferred from Soufan to James Mitchell, a psychologist identified in the Torture Report as Dr. Grayson Swigert (at p. 20). For the next two months, Mitchell subjected Abu Zubaydah to increasingly brutal forms of abuse and degradation, including sleep and sensory deprivation, and complete isolation in a cold, brightly lit, windowless room. Soufan called FBI Headquarters frantic, saying “I swear to God, I’m going to arrest these guys.” In response, Robert Mueller, then the FBI Director, directed Soufan to have no further involvement in Abu Zubaydah’s interrogation.
With Soufan gone, conditions grew more severe. Mitchell focused single-mindedly on obtaining information he believed Abu Zubaydah had about “threats to the United States and information about al-Qa’ida operatives located in the United States.” When he failed to get that information, Mitchell and his CIA handlers concluded—again—not that the preliminary intelligence about Abu Zubaydah’s level of knowledge was wrong, but that the interrogation process was still too gentle.
In June, the CIA decided to escalate further. Abu Zubaydah was placed in solitary confinement for 47 days while Mitchell returned to the United States to “discuss the endgame” of Abu Zubaydah with officials at CIA headquarters. In these discussions, Mitchell pitched his “novel” interrogation plan.
In contrast to Soufan, Mitchell had never conducted a real interrogation, did not speak Arabic, had never worked on a terrorism case, and had no training in Islamic fundamentalism generally or al-Qaeda in particular. What he had done was train U.S. soldiers how to resist simulated torture during training, and he believed he could reverse engineer that training to empty the contents of a man’s head. Abu Zubaydah would be the first subject in this experiment.
Before the CIA agreed to go forward, it wanted legal cover, which it got from the now infamous August 2002 torture memos. The first argued that the criminal prohibition against torture would not prevent Abu Zubaydah’s torture because, among other reasons, his torturers would be acting with the best of intentions—that is, they lacked the specific intent required by the statute. The second memo applied this reasoning to the planned interrogation of Abu Zubaydah. It walked through each of the proposed “enhanced interrogation techniques” and concluded they were all lawful, so long as they did not cause lasting damage, which was guaranteed by a “psychological assessment” of Abu Zubaydah that had been faxed to the memos’ authors by an unknown CIA official.
This “assessment” described Abu Zubaydah as “a senior Usama Bin Laden lieutenant” and “the third or fourth man in al-Qa’ida.” Abu Zubaydah had supposedly been “involved in every major al-Qa’ida terrorist operation” and had planned the attacks of September 11 and “managed a network of [al-Qa’ida] training camps.” The assessment also alleged that Abu Zubaydah “directed the start-up of a Bin Laden cell in Jordan,” “served as al-Qa’ida’s coordinator of external contacts, or foreign communications,” drafted the organization’s “manual on resistance techniques,” and knew how to defeat conventional interrogation techniques. To put the last nail in Abu Zubaydah’s coffin, the assessment alleged he was “engaged in ongoing terrorism planning against US interests.” None of this, we now know, was true.
The preliminary intelligence the CIA was relying on was, as is often the case, unreliable. As the Senate Torture Report concluded, Abu Zubaydah was not involved in the attacks of September 11, did not manage al-Qaeda training camps, never directed a Bin Laden cell in Jordan, never authored a training manual, and had no more ability to resist torture than you or I would. In fact, the most provocative claim in the assessment — that Abu Zubaydah had been “the third or fourth man in al-Qa’ida” — was based on a single source who recanted his claim before the torture memos were even written.
Nevertheless, on August 3, 2002, CIA headquarters gave the interrogation team the green light. The next day, Mitchell, who by now had been joined by his colleague Bruce Jessen, began to “enhance” Abu Zubaydah’s interrogation. They kept at it “on a near 24-hour-per-day basis” until August 23. The torture has been recounted innumerable times. Joseph Margulies, one of Abu Zubaydah’s lawyers, described it this way in an essay for the New York Review of Books:
His captors hurled him into walls and crammed him into boxes and suspended him from hooks and twisted him into shapes that no human body can occupy. They kept him awake for seven consecutive days and nights. … They left him in a pool of his own urine. They strapped his hands, feet, arms, legs, torso, and head tightly to an inclined board, then covered his face and poured water up his nose and down his throat until he began to breathe the water, so that he choked and gagged as it filled his lungs. His torturers then left him to strain against the straps as he began to drown. Repeatedly. Until, just when he believed he was about to die, they raised the board long enough for him to vomit the water and retch. Then they lowered the board and did it again. [Mitchell and Jessen] subjected him to this treatment at least eighty-three times in August 2002 alone. On at least one such occasion, they waited too long and Abu Zubaydah nearly died on the board.
Perhaps most disturbing, Abu Zubaydah’s torture continued long after even Mitchell and Jessen concluded it should stop. The psychologists (acting as CIA-contracted “interrogators”) thought it should end after six days; headquarters ordered it to continue another two weeks.
When the torture finally stopped, the CIA concluded that Abu Zubaydah had been telling the truth all along. As the Senate Select Committee on Intelligence found, Abu Zybayadah had told everything he knew to Ali Soufan. The torture yielded nothing.
Mitchell and Jessen nevertheless judged the experiment a success, “not because the CIA’s enhanced interrogation techniques produced useful information, but rather because their use confirmed that Abu Zubaydah did not possess the intelligence that CIA Headquarters had assessed Abu Zubaydah to have.” (emphasis added)
The use of torture created a lingering problem, though: what to do with Abu Zubaydah. Before the torture began, the interrogation team demanded that if they were to go ahead with what was planned, they wanted “reasonable assurances that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life.” The assurances were forthcoming. In a cable back from Washington, they were assured that “all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life.”
In the years that followed, Abu Zubaydah remained held incommunicado along with several other so-called High Value Detainees in black sites around the world. In September 2006, he was publicly transferred to Guantanamo, where he has been held for the past 15 years. Since that time, his lawyers have sought to investigate his case and have pursued legal actions on his behalf around the world.
A Question for the Court
The action that got the Supreme Court’s attention involves a request Abu Zubaydah’s lawyers filed under 28 U.S.C. § 1782. Section 1782 allows a district judges to order a person to give testimony and produce documents “for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” Over at Lawfare, Rohini Kurup, has offered a detailed description of what Abu Zubaydah’s lawyers are seeking and why. But at bottom, they are trying to compel Mitchell and Jessen to offer evidence in support of a criminal investigation into torture that is being undertaken by one of the foreign countries where Abu Zubaydah’s lawyers allege a black site was located.
Mitchell and Jessen did not oppose the request for information. Indeed, what makes the case remarkable is that they both have already testified – twice – about their conduct in the black sites. They testified under oath in both the military commissions and in a civil deposition. James Mitchell even wrote a book about his exploits, which the CIA approved prior to publication and which he supported with a book tour that included an interview on 60 Minutes. But they have never testified about what they did in this particular black site. And, for reasons that remain opaque, the Trump Administration decided that this was a bridge too far. Supported by declarations by then-CIA Director Mike Pompeo, the United States intervened and moved to dismiss the case on the ground that anything Mitchell or Jessen might disclose was protected by the state secrets privilege.
The district court, for its part, found that the requested discovery included a mix of classified and unclassified information and concluded that it was compelled to dismiss without trying to parse one from the other. A divided panel of the 9th Circuit reversed and directed the district court to separate wheat from chaff. The Supreme Court granted certiorari in late April and last week, took up a second state secrets case involving alleged religious discrimination by the FBI in its use of surveillance against citizens.
This will be the Court’s first opportunity to squarely consider the scope of the state secrets doctrine in the post-9/11 context. That is remarkable all by itself given how heavy a club it has been over the past twenty years.
Under the prevailing view, the Executive cannot be compelled to reveal classified information to anyone for any reason. And so, the lower courts have wrestled with how central classified evidence must be before the Executive Branch can effectively compel the dismissal of a case by invoking the privilege. Said differently, how much trouble should federal judges go to decide a case burdened by the risks and cumbersome logistics that classified evidence imposes?
The district court’s decision in Abu Zubaydah’s case reflects the troubling trend of increasingly treating the invocation of the privilege as requiring dismissal in civil cases, no matter how meritorious. Its invocation has compelled the dismissal of civil rights cases involving the targeting of citizens for assassination in drone strikes, the warrantless surveillance of citizens’ communications, as well as substantiated claims of torture and extraordinary rendition without any consideration of their merits.
This has effectively allowed the state secrets privilege to grow from an evidentiary privilege into a category of civil immunity. In allowing Abu Zubaydah’s case to go forward, the Ninth Circuit rejected the all or nothing approach that has treated the state secrets privilege as a national security immunity. And it was right to do so for at least three reasons.
First, treating the state secrets privilege as a kind of immunity from suit raises profound separation of powers problems. Dismissing a case because the Executive Branch does not want it to proceed presents a square conflict with what the Supreme Court has described as the courts’ “virtually unflagging” constitutional duty to hear any case that Congress has put within their jurisdiction.
The only categorical national security immunity the Supreme Court has ever recognized is the one that applies to cases brought against the United States by its former spies. In those cases, the Court has taken pains to distinguish the narrower purpose of the state secrets privilege as a rule of evidence, subject to judicial policing and dispositive in only the rarest of cases. Allowing the state secrets privilege to morph into a kind of immunity, under which any case involving classified evidence must be dismissed at the Executive Branch’s election, would judicially imply a broad national security exception into the whole of federal law, where Congress has never sought to create one.
Perhaps Congress could create such an immunity. But in the absence of one, dismissing a federal action based on the Executive Branch’s unilateral invocation of a claimed prerogative is substantively identical to invalidating the Congressional law that formed the basis of the courts’ jurisdiction on as-applied constitutional grounds. It just does so sub silentio through the seemingly mechanical application of an evidentiary privilege. If a court is going to make such a substantial constitutional holding, it should at least do so transparently, particularly where the consequence of such a decision is to hide matters of public import from democratic scrutiny.
Second, the state secrets privilege, like other forms of government-sanctioned secrecy, is susceptible to abuse if not tightly drawn and scrupulously policed. The power to conceal can often be a license to misgovern. And any time a case is dismissed outright because a modicum of the relevant evidence might pertain to a state secret, the Executive branch is effectively permitted to conceal the far wider swath of unclassified – and often unclassifiable – information about its activities that would otherwise have come to light.
The Supreme Court’s 1953 opinion in United States v. Reynolds, which established the modern framework for the state secrets privilege, offers a cautionary tale. There, families of civilian researchers who were killed in a B-29 crash sued the government for wrongful death. In the course of litigation, they sought the Air Force’s accident report, which the government refused to turn over on grounds that the mission involved secret electronic equipment. The Supreme Court held that the state secrets privilege justified the Air Force’s refusal to turn over the report.
In the late 1990s, the Air Force’s accident report was declassified in full. It contained no technological secrets about the electronic equipment on board. Instead, it concluded that the crash was caused by the Air Force’s failure to do scheduled maintenance on an engine. While the Third Circuit subsequently held that the government’s overstatement of the report’s national security implications did not constitute a fraud on the court, little in the report touched on anything relating to military technology or capabilities. The few references it did contain to such facts could have been readily redacted without stripping the report of its clear evidentiary value. The only thing that withholding the report in its entirety protected was public scrutiny of the Air Force’s bureaucratic negligence.
As the Supreme Court held less than forty years ago, civil rights litigation is no less important a check against government misconduct and misfeasance in the national security context than it is in any other area where there are laws the government is bound to follow. If anything, the Court warned, the tendency toward skullduggery in “national security tasks” makes it “far more likely that actual abuses will go uncovered than that fancied abuses will give rise to unfounded and burdensome litigation.” In our system, the judicial process is the surest protection against the Executive’s inevitable institutional inclination to cover its sins and bury its mistakes. It should therefore be required to clear a high bar when it claims the need to keep even more secrets.
Third, and finally, the federal courts have shown themselves highly capable of handling and managing classified evidence securely. The Guantanamo habeas petitions have involved extraordinary quantities of classified evidence, pleadings, and argument. Likewise, in criminal cases, in which the use of classified evidence is governed by the Classified Information Procedures Act, courts have managed classified discovery in hundreds if not thousands of prosecutions. Experience has shown that – among all the branches of government – the judiciary has been the most reliable guardian of the nation’s secrets. Requiring courts to mindlessly dismiss nearly every case in which the state secrets privilege is invoked, therefore, is as unwarranted as it is unwise.
Having reasonable faith in the competence of the federal judiciary to manage classified evidence is also consistent with Reynolds. Though often overlooked, the Supreme Court’s willingness to allow the Air Force to withhold its classified accident report was predicated in part on the fact that its exclusion was not fatal to the plaintiffs’ case. The Air Force had offered to let the plaintiffs interview the surviving crew members on all matters “except those of a ‘classified nature’” and the Court concluded not that the case must necessarily be dismissed because it involved classified evidence, but that “it should be possible for respondents to adduce the essential facts as to causation without resort to material touching upon military secrets.” The Court embraced, in other words, the same need to use a scalpel that the Ninth Circuit said was required in Abu Zubaydah’s case. And decades of experience in criminal cases and the Guantanamo habeas litigation affords every reason to conclude that district courts wield that scalpel deftly.
More than any case to have reached the Supreme Court, Abu Zubaydah’s case demonstrates the need to carefully scrutinize what information the Executive Branch can legitimately shield under the state secrets privilege. It is entirely possible that there are aspects of Mitchell and Jessen’s testimony over which the United States legitimately can and should assert the state secrets privilege. But if there were ever a category of information over which blanket claims of secrecy and deference to the Executive were most dangerous, it is the use of torture.
Every day that the government’s past use of torture remains hidden damages the United States by perpetuating the myth that it works. That myth threatens the nation’s security, emboldens illiberal actors around the world, and betrays the values we hold most dear. Torture is a crime. And crimes cannot – and should not – be classified.