No one has ever accused me of being Polyannaish and I am confident no one ever will, but I do not read the recent decision in United States v. Husayn (Abu Zubaydah) as much of a victory for the government. In fact, I think it’s a loss for the Biden administration poorly disguised as a win.
As I read the decision, Abu Zubaydah can rely on 28 U.S.C. Sec. 1782 to depose the architects of the CIA torture program, James Mitchell and Bruce Jessen, about what they saw, did, smelled, heard, and said – in short, about whatever their senses revealed to them – between December 2002 and September 2003, in support of a foreign criminal investigation underway in Poland.
The shame of torture cannot be buried with its victims. As Shakespeare promised, “at the length truth will out.”
I represent Abu Zubaydah and see it this way: At a moment when the national security threat is acutely grave, in a state secrets case involving a Guantanamo detainee who was once denounced as the BFF of Usama bin Laden, and before the most conservative Supreme Court anyone alive has ever seen, the Biden Administration could only eke out a win on the narrowest possible grounds: My colleagues and I can’t ask Mitchell and Jessen questions that assume the existence of a CIA black site in Poland (even though everyone knows that’s where the site was). Once you add up all the concurrences and partial dissents, seven justices (Stephen Breyer, John Roberts, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas, Samuel Alito, Elena Kagan) agreed the United States could officially deny what the whole world knows: that the CIA maintained a site in Poland. Because our discovery requests asked, in essence, “tell us what happened in Poland,” the Court accepted the government’s contention that any response would have essentially confirmed the existence of a site there, or so the seven believed.
If this holding sounds narrow and niggling, that’s because it is. Writing for a badly fractured Court, Justice Breyer stressed that the case presented “only a narrow evidentiary dispute,” slip op. at 9, and that the sole question was whether the discovery requests as written were overly broad. E.g., id. at 17 (Court must attend only to “the specific discovery requests at issue here”); id. at 15 (decision is based only on “the specific document requests” made by Abu Zubaydah); id. at 9 (important to the Court’s analysis “is the specific language of Zubaydah’s discovery requests”).
But of course, as the Court finally came to understand, we don’t particularly care that there was a site in Poland. We care what happened to Abu Zubaydah between December 2002 and September 2003, regardless of where he was, and want to question Mitchell and Jessen, who were with Abu Zubaydah during that period. The fact that they were with him in Poland is irrelevant to us. As Justice Kagan pointed out, we have always distinguished between the what and the where; we want to know the former and don’t care about the latter. The where is also irrelevant to the Polish prosecutor, for whom we seek the information. He already knows there was a site in Poland. He knows when it opened and when it closed. What he doesn’t know is what happened inside the site, and he asked us to find out. To get that information, we must question Mitchell and Jessen.
And seven justices believe that questioning must be allowed (Breyer, Roberts, Kavanaugh, Barrett, Kagan, Neil Gorsuch, Sonia Sotomayor). Indeed, as Justice Kagan observed, “the Government concedes that information about Zubaydah’s treatment is no longer classified: It is, on any understanding, not a state secret.” Slip op. at 3 (Kagan, J., concurring in part and dissenting in part). The seven quibble about whether we have to start all over again to get this information or whether we can go forward with the current lawsuit. Three (Kagan, Gorsuch and Sotomayor) thought we should be allowed to proceed while four (Breyer, Roberts, Kavanaugh and Barrett) sent us back to square one. But in language whose import was not lost on anyone, Justice Breyer, speaking for the four, advised, “Of course, we need not and do not here decide whether a different discovery request filed by Zubaydah might avoid the problems that preclude further litigation regarding the requests at issue here.”
This might sound provisional but given the government’s concession that the what is unclassified, the result is foreordained: It may take time, but eventually, the truth will be known.
Justices Thomas and Alito took a more deferential view of executive claims that the sky will fall if the truth is known. They would rule for the government even without so much as reasonable evidence that national security is at stake. About this, all one can say is that their fellow justices disagree and would hold the government to its proof—even, or perhaps especially, when the executive enigmatically invokes national security.
Justice Thomas also could not resist a gratuitous swipe at my client, who he solemnly pronounced as “a terrorist.” For this provocation, he cites the government’s factual return filed more than a decade ago in the habeas litigation, which is like accepting the truth of a criminal complaint. The government has never proven the allegations Justice Thomas so innocently accepts, which ought to tell you something. In any case, I do not suppose Justices Thomas and Alito mean to suggest the government may torture a human being with impunity so long as he is a bad person, and even less that they imagine anyone who walks among us might be equipped to divine who those people are. That at least has never been the moral genius on which this country relies.
Finally, the duo fault me for not providing Abu Zubaydah’s own account to the Polish prosecutor, which, they say, might have obviated the need for testimony from Mitchell and Jessen. This is the only part of their opinion that merits a serious rebuttal, since it rests on a grave factual error that reveals a fundamental ignorance of Guantanamo habeas litigation. Under the rules, a detainee is not permitted to participate in foreign litigation. The government made a limited exception in Abu Zubaydah’s case, allowing him to send a statement to the Polish prosecutor, subject to prior clearance by the CIA. This concession, however, came only after Acting Solicitor General Brian Fletcher was pressed on the matter by the bench. Prior to that, such a statement would’ve been disallowed, as Fletcher described in his post-argument letter to the Court.
When the Court resolves a case on narrow, hyper-technical grounds, the most important part of the decision is often not the holding but the message the Court sends in its language and divisions. So it is here, where the Court unflinchingly described the treatment Abu Zubaydah endured as torture. In a single, short sentence, Justice Breyer confirmed the truth while rendering it uncontroversial, as if to say, “Of course he was tortured; no one can credibly maintain otherwise. Now on to the question before us.”
But Justice Breyer’s artfully casual treatment of the matter cannot mask its importance. The Ninth Circuit panel decision in this case was the first time an appellate court had ever described the so-called “enhanced interrogation techniques” as torture, and even that elicited a rebuke from some Ninth Circuit judges in dissent from the denial of the government’s petition for rehearing en banc. Yet in last week’s decision, no member of the Court balked at Justice Breyer’s language, not even Justices Thomas and Alito. Indeed, Justices Kagan and Gorsuch expanded on it. Justice Kagan noted that several government sources describe “how [Abu Zubaydah] was tortured” while Justice Gorsuch said the Senate investigation into the CIA black site program concluded “he was tortured immediately before” his detention in Poland. Justice Gorsuch also described some of that torture in excruciating detail, including the waterboarding, the mock burials, and the rectal rehydration, and did not hesitate to describe it as “brutal.”
Of course, the sources cited by Justices Kagan and Gorsuch shy away from the word, “torture,” as the justices surely know. That is the Rubicon the Court has crossed. The simple willingness of a Supreme Court justice to call torture by its name is bracingly refreshing. If the first step to a moral reckoning is official acknowledgment of a painful past, then the Court has taken that step.
And when that reckoning finally comes, people will look to Justice Gorsuch’s dissent for inspiration. In language that will live for the ages, he castigated the government for its shameful determination to shrink from its past and conceal its sins. Speaking also for Justice Sotomayor, Justice Gorsuch thought it preposterous that a fact everyone knows could be a “state secret.” But more than that, one senses he believes it is beneath the dignity of a mature democracy to refuse responsibility for its moral and legal lapses.
Many observers expressed surprise that this message should come from one of the Court’s most conservative members, but I was not surprised. There is a space where conservative and liberal voices join. It is the belief that government service is a privilege, but only when government is honorable. When elected leaders betray their allegiance to the law and abandon their faith in the cleansing power of the truth, they must find no quarter in the Court.
One hopes this message is not lost on the Biden Administration as it weighs the fate of Abu Zubaydah, The Forever Prisoner.