The Supreme Court confronts the CIA’s worst-kept secret

Can America’s legacy of torture be a “state secret” if it isn’t even a secret?

United States v. Zubaydah, which the Supreme Court will hear on Wednesday, is a case about a man who was tortured by the CIA over an intelligence failure. It’s also a case about one of the US intelligence community’s worst-kept secrets.

Zayn al-Abidin Muhammad Husayn (often referred to as “Abu Zubaydah”) is a Palestinian man who is currently held at the US prison at Guantanamo Bay, Cuba. After he was captured in Pakistan in 2002, American officials concluded that Zubaydah was one of al-Qaeda’s top leaders, and he was repeatedly waterboarded, locked in a tiny coffin-sided box for hundreds of hours, denied sleep, and forced to remain in “stress positions,” among other abusive interrogation tactics — all in a vain effort to extract information that Zubaydah never possessed.

In 2006, the CIA formally concluded that it had made a mistake. Zubaydah, according to the agency, “was not a member of al Qaeda.” He has never been charged with a crime, but nevertheless remains a prisoner at Gitmo. According to his lawyers, Zubaydah cannot even testify in any legal proceeding regarding his torture, “because the Government summarily decided nearly twenty years ago that he would remain incommunicado for the rest of his life” — a decision that is confirmed by internal CIA communications from 2002.

None of the most important facts regarding Zubaydah’s detention and torture can reasonably be disputed. In 2014, the Senate Intelligence Committee released a lengthy report detailing the CIA’s use of torture. Although the full report is classified, Zubaydah’s name appears 1,343 times in an unclassified “executive summary” of that report and its accompanying documents.

Among other things, this summary reveals that Zubaydah “became ‘completely unresponsive, with bubbles rising through his open, full mouth’” during a waterboarding session.

Department of Defense/Tribune News Service via Getty Images

There is overwhelming evidence that, for at least part of his ordeal, Zubaydah was held at a secret CIA facility in Poland. In 2015, the European Court of Human Rights determined that Zubaydah was held at such a facility in Poland from December 2002 until September 2003. Aleksander Kwaśniewski, the former Polish president who was in office during this period, admitted in 2012 that the Polish government “agreed to the intelligence cooperation with the Americans,” though he claimed that “we did not have knowledge of any torture.”

Yet the primary issue in Zubaydah is whether the United States can claim that Zubaydah’s torture and his detention at a CIA facility in Poland are “state secrets” that can be kept from Polish prosecutors investigating whether any Polish nationals were complicit.

In 2010, Zubaydah’s lawyers and several human rights groups filed a criminal complaint in Poland seeking an investigation into any Polish officials who contributed to Zubaydah’s detention and torture. Initially, this complaint proved fruitless, but after the European Court of Human Rights determined that “the treatment to which [he] was subjected by the CIA during his detention in Poland … amount[ed] to torture,” Polish prosecutors reopened their investigation.

To aid this investigation, Zubaydah’s lawyers asked a US court to compel the testimony of two psychologists, James Mitchell and Bruce Jessen, who helped develop the torture techniques used on Zubaydah and other detainees — Mitchell and Jessen’s company was paid $81 million by the CIA to devise and oversee the agency’s use of torture. Zubaydah’s lawyers also seek documents from Mitchell and Jessen related to their client’s torture.

A federal appeals court held that at least some of the information sought by these attorneys should be made available to them. Although the Supreme Court has long held that the federal government may prevent private parties from obtaining information that, “in the interest of national security, should not be divulged,” the appeals court reasoned that the government cannot hide information that is already public.

“In order to be a ‘state secret,’ a fact must first be a ‘secret,’” Judge Richard Paez wrote in a fairly nuanced opinion laying out the process a trial court should use in determining what information about Zubaydah’s detention and torture may be disclosed to his lawyers — and, ultimately, to Polish investigators.

The federal government, meanwhile, has taken the firm position that nothing may be disclosed. Even if many of the facts about Zubaydah’s torture are widely known, the government argues in its brief, “first-hand evidence from Mitchell and Jessen would confirm or deny the accuracy of existing public speculation and risk significant harm to the national security.”

The government is so committed to its position that many publicly available facts cannot be confirmed that its brief even suggests that some of the information confirming that Zubaydah was tortured, and that he was detained in Poland, may be some kind of elaborate false flag. “Intelligence officers routinely deploy tradecraft to cloak the true nature of their activities and misdirect attention,” the brief explains. And thus, it claims that “public information” about Zubaydah “can be of uncertain reliability.”

So the Supreme Court must dive into the rabbit hole that is the Zubaydah case, with the United States unwilling to admit many facts that it cannot reasonably deny.

The “state secrets” doctrine, briefly explained

Some information presents such a genuine threat to national security that it should not be disclosed, even if a litigant would otherwise have a valid claim to it. Imagine, for example, that a party to a lawsuit wanted to know about troop movements in the middle of a war, or if they wanted to see documents that would reveal US diplomats’ bottom line in an ongoing negotiation with a foreign nation.

The seminal case involving federal claims that certain information is a state secret is United States v. Reynolds (1953). Reynolds involved a lawsuit brought by three widows whose husbands died while they were aboard a test flight of an Air Force bomber that contained secret electronic equipment.

The widows sought the Air Force’s official report on the accident, but the Air Force refused, claiming that it could not be disclosed “without seriously hampering national security, flying safety and the development of highly technical and secret military equipment.”

In agreeing that the government could withhold this report, the Supreme Court announced several principles that guide state secrets cases. Among other things, the Court explained that information should remain a secret when “there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.”

At the same time, the Supreme Court required the government to clear certain procedural hurdles in order to prevent it from invoking this state secrets privilege too often. Among other things, the government may not claim this privilege unless there is a “formal claim of privilege, lodged by the head of the department which has control over the matter.” This senior government official must also engage in “actual personal consideration” of whether the privilege should be invoked — they cannot delegate this task to a subordinate.

The Court noted that the privilege is strongest when a party could obtain the information they seek through other means, and weakest when the opposite is true. “Where there is a strong showing of necessity,” according to Reynolds, “the claim of privilege should not be lightly accepted.” Nevertheless, the Court added that “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.”

Though the Supreme Court did not make this point explicitly in Reynolds, the judiciary is often in a position of weakness when the government claims that certain information must remain a state secret. The trial judge in Reynolds, for example, ordered the government to turn over the contested Air Force report so that the judge could review it in private to determine if it contained material that should be withheld. But the government refused to do so.

Ultimately, if the federal government simply insists that it will not turn over certain information no matter what, there’s not much that the courts can do.

The final chapter of the Reynolds case, moreover, offers a cautionary tale about what can happen if the courts are too quick to trust the government in state secrets cases. When the accident report at the heart of the case was declassified in the 1990s, the public learned that it did not even mention the equipment that the Air Force wanted to keep secret.

According to a Senate Judiciary Committee report, however, it did “contain embarrassing information revealing Government negligence (that the plane lacked standard safeguards to prevent the engine from overheating).”

What does all of this mean for Zubaydah?

The factors laid out in Reynolds offer fodder to both parties in the Zubaydah case. On the one hand, it’s hard to argue that at least some of the information sought by Zubaydah would “expose military matters which, in the interest of national security, should not be divulged,” when that information is already widely known and was already disclosed in the unclassified summary of a Senate Intelligence Committee report.

At the same time, it’s unclear that Zubaydah can make a “strong showing of necessity.” Why does he need Mitchell and Jessen to reveal information that is already in the public record?

Judge Paez’s opinion for the appeals court drew a line between information that is already known and information that remains secret. Some of the information sought by Zubaydah, Paez’s court ruled, such as “the identities of foreign nationals who work with the CIA,” should not be disclosed because doing so “risks damaging the intelligence relationship [between the United States and Poland] and compromising current and future counterterrorism operations.”

At the same time, already-public information such as “the fact that the CIA operated a detention facility in Poland in the early 2000s; information about the use of interrogation techniques and conditions of confinement in that detention facility; and details of Abu Zubaydah’s treatment there” could potentially be disclosed — although, even under Paez’s opinion, it’s not clear if Zubaydah is entitled to any of the information he seeks.

If a trial judge determines that there is no way to reveal the less sensitive information sought by Zubaydah without also disclosing genuine state secrets, then, under Paez’s approach, all of the information should be suppressed.

At this point, you may be wondering what all this means. Frankly, it is unclear what’s actually at stake in this case, at least for Zubaydah, if the only information he’ll be able to obtain is stuff that is already available to the public.

But even if Zubaydah has little chance of walking away with much new information about who is responsible for his torture, the case could have profound implications for future cases where the government wishes to keep certain information secret.

The federal government seeks an extraordinary level of judicial docility whenever it raises a state secrets claim. Its brief is gravid with phrases like “utmost deference,” and suggests that only executive branch “officials possess ‘the necessary expertise’ to make the required ‘[p]redictive judgment’ about risks to the national security.”

These are not frivolous arguments. The Court has historically warned judges against intruding too far into questions of foreign policy or national security — although the Court’s current 6-3 conservative majority has not always heeded these warnings since Democratic President Joe Biden took office.

But, as the Court emphasized in Reynolds, “a complete abandonment of judicial control would lead to intolerable abuses.” Imagine a world where the government can commit any atrocity, then keep the truth of that atrocity secret forever.

This is why state secrets cases are hard. They require judges, often acting on imperfect information, to make difficult choices about when the interests of justice overcome fears about national security.

But Zubaydah also isn’t a typical state secrets case. It’s a case about whether the government will reveal horrible truths that are already largely known.