Andy Worthington | October 17, 2021
On Wednesday, the Supreme Court heard arguments in the case of the notorious torture victim and Guantánamo prisoner Abu Zubaydah, for whom the US’s post-9/11 torture program was invented. Zubaydah, whose real name is Zayn al-Abidin Muhammad Husayn, was held and tortured in CIA “black sites” for four and a half years, after his capture in a house raid in Pakistan in March 2002, until his eventual transfer to Guantánamo with 13 other so-called “high-value detainees” in September 2006, and he has been held there without charge or trial ever since.
Wednesday’s hearing was the result of an appeal by the government against a ground-breaking ruling two years ago, by the Ninth Circuit Court of Appeals, in which the judges openly declared that Abu Zubaydah had been tortured. It was, as Abu Zubaydah’s attorney, Cornell University law professor Joseph Margulies, explained, “the first time an appellate court” had “come right out and said that the enhanced interrogation techniques were torture.”
While this was significant, it wasn’t the main topic of the case, which involved the state secrets privilege, whereby government officials can argue that sensitive information whose disclosure, they claim, might endanger national security, must not be disclosed in a court. Abu Zubaydah’s lawyers were — and still are — seeking permission for the architects of the torture program, the contractors James Mitchell and Bruce Jessen, to be questioned about the details of his torture while he was held in a “black site” in Poland, in 2002-03, after his initial torture in a “black site” in Thailand in 2002, for use in the Polish government’s ongoing investigation.
A lower court had earlier ruled that, as the San Francisco Chronicle described it, any questioning of Mitchell and Jessen “would expose state secrets about CIA detention and interrogation practices,” but the appeals court refuted Justice Department claims that the questioning of Mitchell and Jessen “could reveal classified information about CIA intelligence sources, foreign government cooperation and terrorist investigations,” pointing out that “some information about the CIA’s torture program and its past operation in Poland has long been known to the public,” and in any case, as Judge Richard Paez explained in the court’s majority opinion, the purpose of confidentiality rules “is to protect legitimate government interests, not to shield the government from uncomfortable facts.”
The appeals court intended that the case should be sent back to the lower court to “take a closer look to determine which subjects could be safely examined,” but the government appealed, meaning that it then made its way up to the Supreme Court, whose decision to accept it was significant, because, although it was primarily about torture, and not Guantánamo, it was nevertheless the first case with any connection to Guantánamo that the Supreme Court had deigned to hear since Boumediene v. Bush, in December 2007, which was decided in June 2008.
That case confirmed that the prisoners held at Guantánamo had constitutionally guaranteed habeas corpus rights, empowering judges to hear the government’s case against them, and over the course of the next two years 32 prisoners had their habeas corpus petitions granted by District Court judges, who ordered their release.
Shamefully, appeals court judges then rewrote the rules, specifically to gut habeas corpus of all meaning for the Guantánamo prisoners, and, just as shamefully, the Supreme Court has refused, ever since, to take back control of the legal arguments involving the imprisonment of men at Guantánamo, even though they have been presented with numerous opportunities to do so.
The Supreme Court hearing
A transcript of the oral arguments in Wednesday’s Supreme Court hearing has helpfully been made available online, and much of it reveals how, seamlessly, the Biden administration has taken on the position maintained by the Trump administration regarding the alleged necessity of hiding information about Abu Zubaydah’s torture, even though much of it is public knowledge — primarily, through the extensive coverage of it in the Senate Intelligence Committee’s report into the CIA’s torture program, whose executive summary was released in December 2014, and through testimony by Mitchell and Jessen on two previous occasions.
That said, as Joe Margulies explained to Democracy Now! on Thursday, although “we know a fair amount about what happened to [Abu Zubaydah in] Thailand … we don’t know what happened to him in Poland.” Mitchell, as he explained, stated in previous testimony that Abu Zubaydah “was treated very shabbily” in Poland, but as Margulies explained, “he uses those kind of euphemisms for the most grotesque torture. And that’s all he says. But no one has ever questioned him about what went on in Poland. The Polish prosecutor knows where the site was. He knows when it operated. But inside the cell, he doesn’t know. There were only three people there. It was Abu Zubaydah, James Mitchell and Bruce Jessen.”
As he also explained, Mitchell and Jessen are “perfectly willing to provide this testimony. When we sought their testimony in this case, they said, ‘We have no objection. We’re happy to tell you. We’re happy to sit down for a deposition.’ It was the United States government that intervened and said, ‘No, their testimony is a state secret, and you can’t have any of it.’”
What happened on Wednesday, however, to everyone’s surprise was that, first of all, as Margulies put it, “virtually every justice on the court described Abu Zubaydah’s treatment as torture. They used that word. There were no euphemisms. There was no equivocation. Everyone understood that what happened to him was torture.”
And, secondly, Justice Breyer, Justice Gorsuch and Justice Sotomayor all asked, “Why is it that you can’t just let Abu Zubaydah testify?” As Margulies explained, “That obviously would obviate the need for Mitchell and Jessen’s testimony. And what was as interesting as their request that Abu Zubaydah be allowed to testify was the government’s equivocation and inability to answer that … [T]he solicitor general was asked to provide a follow-up statement, so they’ll be filing something else, explaining whether they’re going to allow Abu Zubaydah to testify. And if they do, that will be a sea change at Guantánamo. That will be a radical change. Guantánamo was built to be an isolation chamber, and they have never allowed any detainee to have uncensored access to the outside. The whole purpose of it was to prevent that kind of communication. So, if that changes, that will be a radical thing.”
Margulies also highlighted a third surprise — as he described it, “Justice Breyer’s observation, which we have been arguing on Abu Zubaydah’s behalf for some time, [and] other detainees have [also] made this argument, that there are no hostilities left in Afghanistan. The legal justification for continuing to hold guys has disappeared. We’ve been making that argument, and yesterday we heard a Supreme Court justice accept it as though it were commonplace. How could anyone think otherwise?”
There was also another shock in the hearing, following Justice Breyer’s questioning about why Abu Zubaydah was even being held, when he referred to Hamdi v. Rumsfeld, a case decided by the Supreme Court in June 2004, in which, as he described it, “we said you could hold people in Guantánamo,” as long as “active combat operations against Taliban fighters” were “going on in Afghanistan.”
After stating, “Well, they’re not anymore,” Justice Breyer asked David Klein, representing Abu Zubaydah, “why is he there?” — in other words, why is he still held — and followed up by asking, “have you filed a habeas or something to get him out?” to which Klein delivered the bombshell response, “There has been a habeas proceeding pending in D.C. for the last 14 years.” This clearly shocked Justice Breyer, who asked twice, and with incredulity, “They don’t decide it?”
While all of the above should — must — provide fertile ground for further challenges in Abu Zubaydah’s case, and against the entire ongoing existence of Guantánamo, it is worth dwelling on how, in the oral arguments, what shone through above all about the government’s position is how thoroughly successive administrations have worked to shield the CIA from scrutiny of its actions in the torture program — and, by extension, any accountability for what was done.
As Joe Margulies explained, “even Mitchell and Jessen, when they were torturing him in Thailand, after six days of virtually 24-hour-a-day torture, decided that they were done, that they had emptied the content of his head … [T]hey cabled that to CIA headquarters in Langley, and Mitchell believes it was Jose Rodriguez [Director of the CIA’s Counterterrorism Center] who cabled back,” stating, as Mitchell described it, “You guys are a bunch of pussies. You’ve got to continue this. Blood is going to be on your hands if there’s another attack. Keep torturing him.”
Margulies added, “And so they did, for another two weeks. And what they eventually concluded is that Abu Zubaydah was telling the truth all along. Contrary to what they believed when they started torturing him, he was not a member of al-Qaeda. He had no involvement with the planning for 9/11. He’s never been a member of al-Qaeda. He is ideologically opposed to al-Qaeda, which is what he had been saying. And they eventually concluded that that was true.”
Raymond Bonner, a journalist who joined Margulies for the show, added that cables from Thailand to the CIA, as the torture began, showed Mitchell and the interrogators stating, “He might die. And if he does, we’re going to cremate him. And if he doesn’t, we want assurances that he will never be in a position to tell his story.” In response, the CIA cabled back, “You have the assurances of everyone here that he will be held incommunicado for the remainder of his life.” As Bonner explained, “[T]hat is exactly what is happening. We’re never going to hear from Abu Zubaydah. I would be stunned if he’s allowed to testify.”
In addition, when Joe Margulies was asked by Amy Goodman, “Can you talk about what condition he is in today, after all of this time, held for so many years, the last number of years, 15 years, in Guantánamo?,” Joe Margulies’ answer confirmed the extent to which, shamefully, Guantánamo continues to function as an “isolation chamber,” particularly for the “high-value detainees” subjected to the CIA’s torture program.
“No, actually, I can’t,” Margulies replied, “because his condition, and my observation of it, is classified … Everything he tells me and everything I learned from him is classified at the highest level. It’s top secret. So, if he says to me, for instance, ‘I’m having terrible headaches, and I vomit every morning,’ I can’t relay that to you. I can’t say this is what he says. I can only write it down and then submit it to the CIA for declassification. And we have submitted over a hundred pages of Abu Zubaydah’s statements and recounting of what happened to him. and that’s been submitted for years, and the CIA has never cleared it. Many years ago, they authorized me to say that I am very concerned about his welfare, very concerned or gravely concerned, some adverb like that. And I can tell you that nothing has changed between then and now. I remain very concerned. But that’s all I’m allowed to say.”
It remains to be seen how the Supreme Court will respond in its ruling, but, if nothing else, Wednesday’s hearing aired a number of profoundly uncomfortable truths about the government’s position: from its obsessive defense of the CIA’s torture program to its refusal to even consider allowing Abu Zubaydah to testify, its failure to proceed with a habeas corpus case for 14 unforgivably long years, and its unwillingness to consider the significance of the withdrawal of the last US troops from Afghanistan.
Guantánamo’s very existence is now untenable, and yet, as I explained in a recent article, the Justice Department continues to defend it with largely undimmed zeal. The Biden administration is apparently reviewing the prison’s operations, and has been told, over and over, by Senators, by members of the House of Representatives, and by numerous credible officials, that continuing to indefinitely hold men without charge or trial at Guantánamo is unacceptable.
Of the 39 men still held, 17 are in this category — accurately described in the media as “forever prisoners” — and Abu Zubaydah is one of them. And yet, despite the growing body of critics telling the government that, unless these men are to be charged, they must be released, it remains unclear if the administration is listening, or if they are still wedded to that disgusting promise made by the CIA back in 2002 — that, even though his torture is no longer a secret, Abu Zubaydah “will be held incommunicado for the remainder of his life.”