by Kyle Sammin
Tuesday, 8
March 2022
Explainer
07:00

America’s worst kept secret

The Supreme Court is shielding the CIA over a widely reported issue
by Kyle Sammin
Abu Zubaydah at Guantánamo in 2012. Credit: Mark Denbeaux

Is a secret still a secret when everybody knows about it? It is when it’s a state secret, according to the Supreme Court, which recently ruled that the American government can protect the CIA from having to disclose the location of a post-9/11 “black site” that has been widely reported on in the press for years.

The case, United States v. Abu Zubaydah, concerns the treatment of Zubaydah, a terrorist the United States captured in 2002 in Pakistan. Zubaydah was shipped around to several sites before his arrival in Guantánamo Bay including one in Poland where, he alleges, he was tortured by CIA contractors. Still detained at Gitmo, he has filed a criminal complaint in Polish courts for the injuries he says he suffered there — injuries from enhanced interrogation tactics that he and others (including the federal government) have said constitute torture.

Zubaydah, along with Polish prosecutors, filed a request to depose two of the CIA contractors involved with the case. The federal government moved to prevent this, calling the very location of the site a state secret. The Ninth Circuit disagreed, but on appeal the Supreme Court assented to the claim, with Justice Stephen Breyer writing the opinion for a six-justice majority that included most of the court’s conservative justices (Justice Elena Kagan also joined the opinion in part and dissented in part).

The essence of Breyer’s holding is as follows: even though the existence of the site has been known and even acknowledged for years, “the Government has provided sufficient support for its claim of harm to warrant application of the privilege.”

The state secrets doctrine is a rare exception to the wide-ranging rules of discovery in American courts. Created by the court in the 1953 case of United States v. Reynolds, the doctrine “permits the Government to prevent disclosure of information when that disclosure would harm national security interests.” It falls to the courts to decide whether such claims are within the legitimate scope of the exception. In doing so, courts have followed the custom of being “reluctant to intrude upon the authority of the Executive in military and national security affairs,” as one 1988 opinion on the subject put it.

Because any response to Zubaydah’s subpoenas would effectively confirm or deny the existence of a CIA facility in Poland, Breyer and the majority held that the information falls within the scope of the state secrets privilege.

Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, dissented. In his usual elegant prose, Gorsuch writes that there “comes a point where we should not be ignorant as judges of what we know to be true as citizens.” The site was acknowledged in Senate reports and European court cases, not to mention books and documentaries that, Gorsuch notes, anyone can easily buy on Amazon.com.

It is difficult to deny that the information is out there. A web search for “Detention Site Blue” and “Poland” brings up a host of news articles from sources including The Economist and the Los Angeles Times that place the site in Stare Kiejkuty, Poland. It approaches willful blindness to say, years after these were published, that the information is a secret of any sort.

Gorsuch notes that in Reynolds and other cases the claim of state secrets has, in later declassifications, been shown to be a ruse designed to obscure government malfeasance. Does a sense of guilt over our post-9/11 dismissal of civil liberties concerns colour the government’s motives here? Gorsuch suggests it might.

“Really,” he writes, “it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds.”

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chris sullivan
chris sullivan
5 months ago

Um, do we really care about the application of every letter of the law on behalf of a proven ( I hope) terrorist now he is ‘here’ in the west. if he had been captured ‘back home’ his legal rights would have been a little different. If Putin ever makes it to a War Crimes trial will he play every legal trick in the book to get off – you bet he will – clinically paranoid, drug use, PTSD from some early life experience, the devil made me do it etc etc . One gets to a point when one loses interest in the ‘rights’ of those who have taken away the rights of others by their actions !!!

Matt Hindman
Matt Hindman
5 months ago
Reply to  chris sullivan

There’s a totalitarian in the making! Funny story, if rights do not exist for people you don’t like then they do not exist at all.

Billy Bob
Billy Bob
5 months ago
Reply to  chris sullivan

Either everybody has rights, including people you may find deplorable, or nobody does. Your statement to me looks the start of a slippery slope towards authoritarianism

David McDowell
David McDowell
5 months ago
Reply to  Billy Bob

That’s too simplistic. Terrorists are and should be treated as outlaws. They seek the destruction of the state others rely on for their protection and should not benefit from protection. Rights are conditional on maintenance of obligations.

Last edited 5 months ago by David McDowell
Andrew Dalton
Andrew Dalton
5 months ago
Reply to  chris sullivan

Well, there’s one argument about which rights should exist and whether that concept has any real meaning, but having passed those two issues, rights are universal. If a right can be removed arbitrarily, then it isn’t a right at all.

David Barnett
David Barnett
5 months ago
Reply to  chris sullivan

21 years detention without trial is unacceptable. Let him be tried and, if convicted, then imprisoned.

Fred D. Fulton
Fred D. Fulton
5 months ago
Reply to  David Barnett

The Canadian Gov paid an enemy combatant, who killed a US soldier, $10-million in compensation over some legal jiggery pokery to the effect that we had denied the new multi-millionaire’s rights. The murderer now enjoys all the rights of Canadian citizenship, while the family of the murdered US soldier received a letter of condolence. Funny thing, rights.

Graham Stull
Graham Stull
5 months ago

This detention site, along with Gitmo itself, features in my recent novel on the subject. Fiction, but very well researched fiction.

Andrew Dalton
Andrew Dalton
5 months ago
Reply to  Graham Stull

Not sure why you were downvoted for that, unless someone took exception at self-promotion.
I might take a look, but my reading list is very long and not getting shorter.

R Wright
R Wright
5 months ago

Are the Poles happy to have this CIA black site on their land, I wonder

Wim de Vriend
Wim de Vriend
5 months ago

The way I understand the Geneva Convention, participating countries have mutual obligations for reasonable treatment of POWs. Tellingly, the USSR was not a signatory, which was why the Germans in WWII felt no obligation to feed or protect Soviet POWs ; in fact, they went to considerable lengths to have millions of them die in their camps, though some of that may have been inevitable simply because of the massive numbers.
Terrorists, however, are neither uniformed enemy soldiers nor domestic criminals. That’s why I’ve never understood why Guantanamo prisoners were entitled to file any of the lawsuits we know of; after all, they grant none of those rights to us infidels.