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Follow Along As The Supreme Court Learns How U.S. Torture Works In Real Time

The government's position clearly shocked some of the justices.

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The Supreme Court heard oral argument in United States v. Abu Zubaydah yesterday and the whole thing felt like the justices were just figuring out how torture works in this country for the first time mid-argument. It’s only been 20 years, so welcome to the party, SCOTUS!

The United States currently holds Abu Zubaydah in its Guantanamo Bay legal liminal zone, but previously renditioned him to a CIA black site in Poland. Polish authorities are in the midst of a criminal inquiry into the allegations of torture taking place in their country. The U.S. has admitted in declassified documents that it tortured Abu Zubaydah pretty much constantly before he went to Poland, but its account of his time in that country remains heavily redacted. Polish authorities asked for testimony from Abu Zubaydah and were told that he could not testify because he was being held incommunicado for the rest of his life.

Meanwhile, a pair of CIA contractors are prepared to testify in Poland as to what went on there. They’ve testified about this before, but the U.S. is taking the stance that talking about it to the Polish authorities amounts to a state secret.

Did you know that the U.S. was doing this sort of stuff in Poland? Yes, because we all got a high-profile reminder:

Indeed.

Which brings us to yesterday’s argument (transcript available here), where the justices seemed flummoxed by everything they were learning about the nature of the U.S. detainee regime:

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JUSTICE BREYER: If it’s exactly, why don’t you ask Mr. Zubaydah? Why doesn’t he testify? Why doesn’t Mr. Zubaydah — he was there. Why doesn’t he say this is what happened? And — and they won’t deny it, I mean, I don’t think, if he’s telling the truth.
***
MR. KLEIN: Abu Zubaydah cannot testify.
JUSTICE BREYER: Why not?
MR. KLEIN: He’s — because he is being held incommunicado. He has been held in Guantanamo incommunicado.
JUSTICE BREYER: Why? Why? Does that — I mean, I’m not sure this relevant, but, I mean, in Hamdi, we said you could hold people in Guantanamo. The words were: Active combat operations against Taliban fighters apparently are going on in Afghanistan. Well, they’re not anymore…. So — so what’s the — why is he there?
MR. KLEIN: That’s a question to put to the government. We don’t know the answer to that.
JUSTICE BREYER (transcript says Chief Justice but it sounds like Breyer): I mean, have you filed a habeas or something, get him out?
MR. KLEIN: There has been a habeas proceeding pending in D.C. for the last 14 years. There’s no —
JUSTICE BREYER: Well, how —
MR. KLEIN: — there’s been no action.
JUSTICE BREYER: Don’t they decide it? They don’t decide it?

And you thought your judge was out-of-control for sitting on that motion to dismiss for six months! Fourteen YEARS for a pending motion. Justice Breyer, who has been there for this entire two-decade ordeal, seems legitimately shocked to learn that this could even be happening. Later in the proceeding, Solicitor General Fletcher said that the government is filing a surreply in the habeas matter today, which doesn’t make the delay seem any better since over the course of 14 years, one would hope they’d at least be on the sursursursursursursurreply.

As to Breyer’s astute observation that the whole “ongoing operations in Afghanistan” thing is no longer in play — a point he’d raise again later — the government took the position that it continues to fight al Qaeda “notwithstanding withdrawal of troops from Afghanistan” which not only fails to track the Hamdi decision, but also comes across as the sort of dystopian forever war claim that would make Orwell blush.

It’s worth noting that the government hasn’t asserted this privilege in other domestic cases, but is hellbent to assert it here to avoid anyone saying “this black site existed in Poland” — despite the fact that everyone in this proceeding knows it existed in Poland and they’re all casually discussing how it absolutely existed in Poland.

MR. FLETCHER: If it was a tort suit in the United States court or a military commission in the United States court where the location was irrelevant, then I doubt that we would be asserting privilege, just as we didn’t in Salim.
JUSTICE BARRETT: Well, doesn’t that mean that it’s not that the information that they say they want is itself privileged? It’s something about the context that later creates a privilege, which seems odd, right?

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IT DOES SEEM ODD! And yet this is exactly the take the Department of Justice’s Kafka tribute band is offering:

JUSTICE SOTOMAYOR: And that goes to the government’s mosaic theory, which is — and this is what you’re disavowing — because it’s not a state secret that he was tortured, the date he was tortured is not a state secret. The place may be, but he doesn’t have to say the place. You will let the Polish authorities prove that some other way, correct?
MR. KLEIN: If — if that’s the way we’re directed, if we’re not allowed to utter the word Poland in asking deposition questions, absolutely.

Yet the government says the act of testifying in Poland implies that the site was in Poland — which it was and they aren’t really denying — but they want it to be a state secret that the site was in Poland. Which it was. Which they aren’t really denying. Having troubling following yet? Now you know how the justices felt.

Though no one seemed saltier about the government’s position than Justice Gorsuch:

JUSTICE GORSUCH: — so I’m just going to do it up-front. Why not make the witness available? What is the government’s objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?
MR. FLETCHER: By “the witness” you mean Abu Zubaydah? Right. So I was going to address this point. It goes to Justice Breyer’s question about the conditions of his confinement right now. He is not being held incommunicado. He is subject to the same restrictions that apply to other similar detainees at Guantanamo. His communications are subject to security screening for classified information and other security risks. But he’s able to communicate with his lawyers about his —
JUSTICE GORSUCH: That — that’s not really answering my question, I don’t think, because I understand there are all sorts of protocols that may or may not, in the government’s view, prohibit him from testifying. But I’m asking much more directly, will the government make the Petitioner available to testify on this subject?
MR. FLETCHER: We would allow him to communicate about this subject under the same terms as on anything else.
JUSTICE BREYER: The same terms? Look, I don’t understand why he’s still there after 14 years. It’s a little hard to, given Hamdi, but assuming that isn’t in this case, why not do just what Justice Gorsuch says? Just say, hey, you want to ask what happened, ask him what happened? And maybe this is special.
MR. FLETCHER: So the — because the detainees at Guantanamo are all subject to a regime, a protective order in their habeas litigation
JUSTICE GORSUCH: I’m not asking — I understand there are all sorts of rules and protective orders. I’m aware of that. I’m asking much more directly, and I’d just really appreciate a straight answer to this, will the government make Petitioner available to testify as to his treatment during these dates?
MR. FLETCHER: I cannot offer that now because that’s a request that has not been made. And so we have not taken that back to the folks
at DoD —
JUSTICE GORSUCH: Well, gosh —
MR. FLETCHER: — at Guantanamo —
JUSTICE GORSUCH: We’ve been — this case has been litigated for years and all the way up to the United States Supreme Court, and
you haven’t considered whether that’s an off-ramp that — that the government could provide that would obviate the need for any of this?

Now you’re in some “gosh”-darned trouble Mr. Fletcher!

MR. FLETCHER: Our position as to all communications by Abu Zubaydah is that he can communicate subject to security screening, which would include — and I just want to be clear — would include eliminating classified information.
JUSTICE GORSUCH: Which — which takes us right back to where we are. And I — that — and — and — and it doesn’t answer the question. And I guess will the government at least commit to answering, informing this Court whether it will or will not allow the Petitioner to testify as to — as to his treatment during these dates?
MR. FLETCHER: If — if the Court would like a direct answer to that question, of course.
JUSTICE GORSUCH: I personally would appreciate a direct answer to that question.

The transcript doesn’t really do justice to how frustrated Gorsuch sounded when he dropped the stone cold “I personally would appreciate a direct answer to that question.” As it turns out, he wasn’t going to get it.

Seriously.

This is from the very end of the argument…

MR. FLETCHER: Justice Gorsuch, I understand your question. We’d be happy to respond.
JUSTICE GORSUCH: Thank you.

And then he MOVES ON TO ANOTHER TOPIC! It’s affirmatively jarring to listen to because I felt like I must have had a stroke when he just veered off and immediately started answering questions from Breyer and Kagan.

But we do get another welcome episode of America’s best jurisprudential buddy picture: Sotomayor and Gorsuch coming together to protect basic criminal procedure.

JUSTICE SOTOMAYOR: Without the government invoking a state secret privilege to the testimony. Inherent in the question is are you going to let him testify as to what happened to him those dates?
MR. FLETCHER: And I think the — the — we would invoke the state secrets privilege always only over specific information, but I —
I would tell you that whatever he proposes to do, we would want to apply the same sorts of screening that we’re applying here to make sure that classified information is not released in the process of his testimony or in a —
JUSTICE SOTOMAYOR: Well, you’re —
MR. FLETCHER: — written submission.
JUSTICE SOTOMAYOR: Well, you’re — you’re begging the question. I want, I think Justice Gorsuch — and he can correct me if I’m wrong — we want a clear answer, are you going to permit him to testify as to what happened to him those dates without invoking a state secret or other privilege? Yes or no. That’s all we’re looking for.

Justice Alito then cut off Sotomayor before she could get this “yes or no” answer because he’s an asshole.

But the whole thing was fascinating to follow because it felt as though — at least some of the justices — had never considered the logical leap from “we allow casual torture and the permanent black holing of prisoners” to the government buttoning up all testimony as to any aspect of this process — including declassified subjects — for all eternity. It’s like they gave the executive branch a blank check and were taken aback that the government decided to add all those zeroes.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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