Three Surprising Turns in Abu Zubaydah Supreme Court Oral Argument – Just Security

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October 18, 2021
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October 18, 2021
The Supreme Court oral arguments in U.S. v. Husayn (Abu Zubaydah) took a number of surprising but welcome turns. I have represented Abu Zubaydah since 2007, shortly after the Bush administration shipped him to Guantanamo, and have been involved in the post-9/11 detention litigation since 2002, when colleagues and I filed Rasul v. Bush. This history inclines me to take the long view, and from that vantage, I wanted to reflect on the significance and possible implications of the arguments.
By way of background, the question before the Court is whether my co-counsel and I can depose James Mitchell and Bruce Jessen, the architects of the CIA torture program, about what they did to our client at the black site in Poland. We seek this information to support a Polish investigation into crimes that may have been committed by Polish actors at the site. Mitchell and Jessen agreed to be deposed, but the U.S. government intervened, claiming their testimony is a state secret because it amounts to official confirmation that a site existed in Poland. We say Mitchell and Jessen can testify about what they did without saying where they were and without disclosing state secrets, as they have twice before. Indeed, they have already testified about what they did to Abu Zubaydah at the black site in Thailand, and they have testified about what they did to other CIA prisoners at the black site in Poland. They just haven’t testified about what they did to Abu Zubaydah in Poland.
Though the stakes are high for Abu Zubaydah, I don’t think it’s appropriate for me to argue the case in these pages. The lawsuit has been ably litigated by both sides and the Court will decide it in due course. Instead, I want to center attention on three matters that emerged during the argument and that, in the fullness of time, may prove even more consequential to the war on terror than the question before the Court in Husayn.
The first is torture.
As others have observed, several Justices, beginning with Justice Amy Coney Barrett, repeatedly described the treatment that Abu Zubaydah endured as torture, plain and simple. As Justice Barrett said, “it’s not a secret that he was tortured.” No euphemisms, no equivocation. The constant repetition was striking, particularly when we recall how contentious this word has been. In 2006, when President George W. Bush first acknowledged the existence of the black sites, he said, “I want to be absolutely clear with our people and the world: The United States does not torture. It’s against our laws, and it’s against our values.” The following year, when the Department of Justice (DOJ) torture memos came to light, he doubled down: “This government does not torture people.”
By taking this position, President Bush elevated the word, torture, into a charged political symbol, and a petulant refusal to describe the CIA interrogations as torture became a totem of fealty to the GOP party line. This attachment deepened when President Barack Obama casually, but belatedly, acknowledged in 2014 that “we tortured some folks.” Of course, for some members of the political right, if President Obama said we did, then it was vital to say that we didn’t. (Candidate Donald Trump, in his practiced role as provocateur, insisted “torture works” but did not, as far as I am aware, depart from GOP orthodoxy and admit that torture happened.)
And so, on this linguistic landmine, many tip-toed around the word, hoping euphemism would permit us to sidestep explosive conflict. The Executive Summary of the Senate Torture Report, for instance, said the interrogations were “brutal.” Many in the media simply repeated the Bush administration’s Orwellian drivel, “enhanced interrogation techniques.” Others whipped out their thesauruses and tried “harsh,” “coercive,” or, least precise and most cowardly of all, “techniques some have called torture,” all of which are accurate in the same way as saying the war in Afghanistan ended poorly. In fact, it was not until the 2019 Ninth Circuit opinion in Abu Zubaydah’s case that a federal appellate court described the treatment of a CIA prisoner as torture.
But there is great value in calling something by its name. By refusing to shrug off a moral obscenity as a minor indignity, we not only better capture the essence of a thing, we summon a picture in the mind’s eye of behavior that demands an equivalently powerful response. This is what Orwell meant when he warned against mindless acquiescence to “political language.”
[P]olitical language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenceless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them.
That Justices of the United States Supreme Court would have the courage to utter the word, and to repeat it over and over, compels us to summon mental images of torture in all its grotesque inhumanity: images of a man repeatedly strapped to an inclined board while water is poured up his nose and down his throat, bringing him within sight of his own death; of a man crammed into a box that would nearly fit under your chair and left to marinate in his own urine and feces; of a man subjected to “rectal rehydration.”
That Justices would call torture by its name is a truth that cannot be unspoken.
The second surprise during the argument came when Justice Neil Gorsuch wondered aloud why Abu Zubaydah can’t simply provide his own testimony about his treatment in Poland. Justices Stephen Breyer and Sonia Sotomayor asked the same thing, with Justice Sotomayor asking pointedly (“Yes or No?”) whether the government would allow Abu Zubaydah to testify without asserting the state secrets privilege. This is an important qualifier, since granting a right to speak but blocking essential details would mock the process and honor an illusion. Acting Solicitor General Brian Fletcher couldn’t answer the Justices’ questions, and Justice Gorsuch seemed incredulous that the government had never considered allowing Abu Zubaydah to testify as an “off ramp” to the state secrets litigation. Justice Gorsuch asked Fletcher to get back to them with a response.
The short answer to the Justices’ questions is no, Abu Zubaydah cannot provide his unvarnished account of the torture he endured, in Poland or anywhere else. The only people with whom Abu Zubaydah has personal contact are his lawyers, and everything he tells them is presumptively classified at the top-secret level. Under the rules governing habeas litigation, nothing he tells counsel, no matter how anodyne or quotidian, can be repeated without first providing it to the Justice Department, which dutifully consults officials at the CIA. Abu Zubaydah’s lawyers may share only what the CIA allows.
Sometimes, the CIA simply refuses to act. Several years ago, my former co-counsel submitted over one hundred pages of statements by Abu Zubaydah for classification review. After months of pestering and prodding, the CIA finally cleared a number of pages, but the rest simply remain under review (though I would not be surprised if the Justices’ questions magically spur them to action). Nor is Abu Zubaydah’s situation unique. No prisoner at Guantanamo has ever been allowed uncensored access to the outside world, and unless the rules change, no prisoner ever will.
This of course is deliberate.
As I have written elsewhere, the Bush administration built Guantanamo to be the ideal interrogation chamber. To achieve this, the administration believed it needed to keep prisoners strictly isolated. That’s why it chose Guantanamo, believing (mistakenly) that it was a prison beyond the law, a hope dashed first in Rasul v. Bush and again in Boumediene v. Bush. And the administration acted on this belief as long as it could; the petitioners in Rasul did not even know that my colleagues and I had filed a lawsuit on their behalf. (We relied on family members as “next friends.”)
It has been more than a decade since a prisoner arrived at Guantanamo, and more than 15 years since the prison hosted regular interrogations. Yet the isolation remains, the vestigial remnant of a shameful past. Today, Guantanamo holds prisoners in strict isolation – many of whom have been cleared for release – to support a practice that has long since been abandoned.
Of course, it may be that a particular prisoner cannot describe the torture he endured. The trauma he suffered may have been too great, leaving him unable to reassemble his scattered shards of memory into a coherent narrative. Indeed, I am not allowed to say whether Abu Zubaydah can accurately recount his treatment, and nothing in this essay should be read to confirm or deny his present capacity; such are the circumlocutions I must use. But that is no reason to silence those who can recount the experience. There is a world of difference between a man who, for all he struggles, simply cannot speak, and one whose mouth is gagged. It is past time to take the gag off.
That is what makes the Justices’ questions so important. By asking whether Abu Zubaydah can testify, they raise far more fundamental questions: Why can’t Guantanamo prisoners share what the United States did to them? Why can’t they speak unmuzzled to the world? As importantly, why is the Biden administration sustaining a regime that was born pitiless and is now gratuitous?
And yet, the administration shows no intention of changing course. The Solicitor General filed his response to the Justices’ questions last Friday at 5:00pm, that moment specially reserved by bureaucracies everywhere for the release of unwelcome and embarrassing announcements. The government says it will allow Abu Zubaydah to provide a declaration to the Polish prosecutors, but only if he first submits it to the CIA for review and redaction.
The final surprise in the argument came when Justice Breyer announced in exasperation:
“Look, I don’t understand why he’s still there after 14 years.”
Breyer’s lament harkened back to his 2019 concurring opinion in the denial of certiorari in Al-Alwi v. Trump. There, Justice Breyer thought it was “past time” to decide, “in light of the duration and other aspects of the relevant conflict, whether Congress has authorized and the Constitution permits continued detention” at Guantanamo.
It has been more than two years since Justice Breyer wrote these words. Meanwhile, Abu Zubaydah has been in U.S. custody nearly 20 years, longer than any other former CIA prisoner. Given everything he has endured, and given the unbridgeable chasm between who he is and who the government thought he was when they first strapped him to the board, we don’t understand why he’s still there either.
 
 
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Joseph Margulies is Professor of the Practice of Law and Government at Cornell University.
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Just Security is based at the Reiss Center on Law and Security at New York University School of Law.

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