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.
