Trust The CIA About What It Should Cover Up, Says Supreme Court
The leading liberal on the Court expressed impressive credulity in blocking an attempt at justice for torture. But Abu Zubaydah's attorneys see a path forward.
Edited by Sam Thielman
WHEN LAST WE LEFT Justice Stephen Breyer, he was testing the smoothness of his juridical brain by seeing if the fundamentals of the Forever Wars could scuff it. In an opinion last week that prevents Zayn al-Abidin Muhammad "Abu Zubaydah" Husayn from implicating the Polish government in his CIA torture, Breyer showed that his legal chrome is polished, gleaming and frictionless.
"Obviously the Court condones neither terrorism nor torture," Breyer wrote on Thursday for a 6-3 majority, "but in this case we are required to decide only a narrow evidentiary dispute."
In fact it is not obvious that the Court does not condone torture, since it just abbeted the CIA in covering up, yet again, the horrors it inflicted on Abu Zubaydah. But that's judicial liberalism for you: the self-congratulation of permitting an incommunicado forever-prisoner to plead his case to the Highest Court in The Land before denying him. And then insisting that obviously you oppose torture.
That denial amounts to Breyer and his colleagues accepting magic words from the CIA about how disclosure means total catastrophe instead of professional inconvenience. That said, Abu Zubaydah's attorneys see a win here inside a loss. They may not be able to ask CIA contractors Bruce Jessen and James Mitchell what the CIA did to Abu Zubaydah in Poland. But if they can frame their questions in a manner that does not explicitly implicate Poland, then they can route around Breyer's "narrow evidentiary dispute."
TO RECAP: The man known as Abu Zubaydah was not, as the CIA initially asserted, the number-three guy in al-Qaeda, or even a member of al-Qaeda at all. He was a guy who ran a jihadist waystation between Pakistan and Afghanistan called Khalden—the kind of guy the CIA would have funded during the anti-Soviet jihad in 1980s Afghanistan. Inside its black sites, first in Thailand and then in Poland, the CIA tortured Husayn to the point where he estimated having had about 40 seizures, even though he was willing to cooperate with his interrogators before his abuse. Somewhere along the way, he lost an eye. Ever since September 2006, Husayn has been locked inside Guantanamo Bay without charge.
While I doubt any explicit plan exists for Husayn, after 20 years, it would be willfully ignorant for Breyer or anyone else to avoid the conclusion that the government would prefer he die in prison. An appeal last year to the United Nations from his attorneys revealed that his Guantanamo jailers haven't vaccinated him. (I have yet to get an answer from the Pentagon as to whether Abu Zubaydah has been subsequently vaccinated.)
Twenty years into his captivity, Husayn wasn't attempting to get the Supreme Court to free him. Since 2008, when the court on which Breyer sits decided that Guantanamo detainees can seek their freedom in U.S. courts, no habeas-corpus petition has freed any detainee. Abu Zubaydah is definitely not going to be the first.
Instead, Husayn was trying to compel the CIA contractors who designed his torture regimen to testify before a criminal investigation in Poland. If he can do that, the contractors’ testimony will establish legally the well-reported fact that the CIA tortured him at a Polish military base called Stare Kiejkuty. After a whole Senate torture report and 20 years' worth of journalism, the Biden administration is not contending that Abu Zubaydah's torture is a state secret. The Justice Department contends instead that where he was tortured—i.e., who aided the torture—is.
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AND SO THAT was the question Abu Zubaydah put before the Court: whether the U.S. can obstruct a foreign criminal investigation because it has the potential to hold the CIA's Polish partners responsible for their share of his torture. Here is Breyer's reasoning for why it can.
We agree with the Government that sometimes information that has entered the public domain may nonetheless fall within the scope of the state secrets privilege. But see 938 F. 3d, at 1133 (“[I]n order to be a ‘state secret,’ a fact must first be a ‘secret’”). The Government here has provided a reasonable explanation of why [CIA contractors James] Mitchell and [Bruce] Jessen’s confirmation or denial of the information Zubaydah seeks could significantly harm national security interests, even if that information has already been made public through unofficial sources. The CIA Director stated in his declaration that the Agency’s counterterrorism efforts rely on “clandestine” relationships with foreign intelligence services. App. to Pet. for Cert. 130a–131a. The Director explained that foreign intelligence services “are a critical intelligence source,” whose help is “vital to our world-wide efforts to collect intelligence and thwart terrorist attacks.”
Notice that all it took for Breyer to shut down the torturers' testimony is for Mike Pompeo, the former CIA director and obviously a trustworthy person, to mouth a generic objection about how secrecy is necessary to the CIA's liaisons. And why would granting Abu Zubaydah's request for testimony, confirming as it will that Poland abetted CIA torture, have such catastrophic effects on U.S. "national security"? Breyer elaborates:
To confirm the existence of such a relationship would “breach” that trust and have “serious negative consequences,” including jeopardizing “relationships with other foreign intelligence or security services.” Id., at 131a–132a. In light of these concerns, the CIA “has steadfastly refused to confirm or deny the accuracy” of public speculation about its cooperation with Poland, leaving “an important element of doubt about the veracity” of that speculation, providing “an additional layer of confidentiality,” and at least confirming that the United States will “stand firm in safeguarding any coordinated clandestine activities,” despite the passage of time, the existence of media reports, and changes in public opinion. Id., at 133a–136a. In a word, to confirm publicly the existence of a CIA site in Country A, can diminish the extent to which the intelligence services of Countries A, B, C, D, etc., will prove willing to cooperate with our own intelligence services in the future.
Breyer does not pause to consider that in showing how hypothetical the harm to "national security" is, he and the CIA have given up the game.
Pompeo has convinced Breyer—who was either ready to be convinced or did not devote the 30 seconds it would have taken to think about it—that intelligence relationships exist outside of national interests. We are supposed to believe that these partnerships are disconnected from the broader architecture of global power, with each intelligence service a blissfully unencumbered customer shopping in a free market of secrecy.
Surely we know this to be the case after a decade of embarrassing public exposures of U.S. intelligence's most important secrets. Remember when the CIA shedded allies worldwide after the U.S.-backed overthrow of Moammar Qaddafi exposed the CIA's torture and rendition collaborations with Qaddafi's Mukhabarat? Or that time the National Security Agency lost its Five Eyes surveillance partners after Edward Snowden revealed the Anglophone digital dragnets? Or when the shocking release of its cybersecurity weapons in the Vault 7 hack cost the CIA its remaining post-Libya buddies?
Oh, wait—none of that happened. It didn't happen because America's position as the reigning-if-weak defending-champion superpower is what determines its intelligence relationships. That is why intelligence and security services working for Qaddafi, Hosni Mubarak, Bashar Assad, Moammar Qaddafi and Pervez Musharraf—that is, at varying points across the subservient/ambivalent/hostile-to-America spectrum—chose to do business with the CIA after 9/11. I can tell you from quite personal experience that the United Kingdom was rather cross after Snowden revealed Five Eyes bulk surveillance. None of that stopped the U.S. and U.K. intelligence services from readily collaborating, most recently earlier this year when they warned of Russia's military buildup ahead of the Ukraine invasion.
That is the context of the state-secrets objections Pompeo asserts and Breyer accepts. Revelations of what intelligence agencies do together in the shadows are inconveniences to be avoided when possible—relationships can certainly deteriorate, post-leak—but broader state interests dictate intelligence cooperation. Yet we're supposed to believe the whole thing falls apart if James Mitchell and Bruce Jessen have to say yes, Abu Zubaydah was at Stare Kiejkuty in Poland, as the Poles helped us torture him. The outgoing senior liberal on the Supreme Court takes all of this at face value.
BUT NOT ALL OF HIS COLLEAGUES DO. One of the Court's conservatives, Neil Gorsuch, and the second of its three remaining liberals, Sonia Sotomayor, got to the heart of the matter. "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," they wrote in dissent.
Justice Elena Kagan, the Court's other liberal, forged a middle path between Gorsuchmayor and Breyer. She accepted, like Breyer, that "commitments the Government has made to foreign intelligence services to never disclose clandestine relationships" trump Abu Zubaydah's right to seek justice. But she didn't accept it wholesale—and in doing so, pointed to what one of Abu Zubaydah's attorneys sees as an opportunity.
"From the beginning of this litigation, Zubaydah has distinguished between the 'where' and the 'what'—the location of the detention site at issue and the treatment he received there," Kagan wrote in a concurring opinion. That pointed to what she considered a remedy: "a problem of phrasing can be solved by rephrasing. Zubaydah has long made clear—not just in this Court but also below—that he would modify his requests if that would make a difference."
And that's why Joseph Marguiles, a longtime attorney for Abu Zubaydah, thinks there's a path to victory for his client, despite the setback Breyer's credulity dealt them.
"Seven members of the Supreme Court agree we can ask James Mitchell and Bruce Jessen about their contact with Abu Zubaydah between December 2002 and September 2003," Marguiles told FOREVER WARS. "We can ask them what they saw, heard, smelled and said. We can ask them what they did. And we can ask it while they are under oath, for the benefit of the Polish prosecutor. And that’s what I plan to do. I have to file a new discovery request, but in the end, the truth will be known."
Should a reworked petition for Mitchell and Jessen's testimony make it back up to the Supreme Court, Stephen Breyer won't be there and presumably Kentaji Brown Jackson will.
Then we'll have a test of whether the court’s rejection of torture is obvious as Breyer insists.
SPEAKING OF TORTURE, the Biden administration repatriated Mohammad al-Qatani from Guantanamo Bay to Saudi Arabia. Much as Abu Zubaydah was the beta test for CIA torture, al-Qatani was the beta test for military torture at Guantanamo. In 2005, Time published his interrogation log. I will never forget being a 25-year old reporter that summer at Guantanamo for the first time, hearing public-affairs officers tell me I didn't seem dumb enough to believe that the military actually forcibly hydrated al-Qatani until he had no choice but to urinate on himself. Nor will I ever forget hearing them insult Jane Mayer of The New Yorker, an absolute pioneer of critical investigative coverage of the War on Terror, all for being fastidious in her preparations—they laughed at her color-coded, indexed notes—before interviewing senior Joint Task Force-Guantanamo officers.
IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE) is running a bulk-financial surveillance operation, report the Wall Street Journal's Michelle Hackman and Dustin Volz. According to a letter written by Sen. Ron Wyden (D-Ore.) to the Department of Homeland Security inspector general, ICE is warrantlessly siphoning transaction records of money transfers worth $500 and more between people in the southwestern U.S. and Mexico. The letter indicates ICE took a rather expansive view of its collection authorities using nonjudicial administrative subpoenas, a highly familiar surveillance-law phenomenon of the War on Terror, to accumulate "approximately six million records." But in an innovation, the program—begun apparently under Trump in 2019—apparently emerged out of a "larger effort by the Arizona attorney general" that stretches back to 2006. Wyden's letter suggests that the Arizona AG's office extorted Western Union to compel the document collection:
In 2006, the Arizona AG attempted to obtain similar bulk transaction data by issuing administrative subpoenas to Western Union. A state court of appeals concluded that the subpoenas exceeded the AG's authority and raised Fourth Amendment questions. However, in February 2010, the AG included, as part of a settlement with Western Union resolving money laundering allegations, a requirement that Western Union turn over bulk transaction data and drop its challenge to the AG's subpoenas.
SO I AM TRYING not to discourse about the Ukraine invasion but... Like I wrote before Putin invaded, I'm neither a Russia expert nor a Ukraine expert, and I think it's important to listen to people who are. Jamelle Bouie wrote in his newsletter over the weekend that in moments when a crucial development falls outside a journalist's area of expertise, it makes more sense to listen than talk, which, when you think about it, is a journalist's baseline obligation even (especially?) when a crucial development is within a journalist's area of expertise.
But people are asking me about this stuff in my capacity as someone who reports on U.S. foreign policy, and since this is kind of inescapable for someone in my corner of journalism, it feels weird to say no? So you'll hear me on a forthcoming episode of fellow DISCONTENTS' Rob Rousseau and Jordan Uhl's podcast The Insurgents. (If I sound rambling, it's because I was extemporizing—to say nothing of not being sober as we recorded at the end of a day when my 1-year old refused to stop screaming and nap/sleep—and because I'm not sure my opinion here is particularly sophisticated or valuable.) Then on Friday, I'll be on Peter Beinart's subscriber-only livestream, likely doing the same thing.
I think you can tell I'm conflicted here, so consider this an experiment. Maybe it works, maybe it doesn't. On Rob and Jordan's podcast I talked myself into an idea that might end up as an essay for this newsletter. Maybe it won't! Whether you care or not, read reporters on the ground, like my old Guardian colleagues who really do know a ton about Russia and Ukraine, Shaun Walker and Emma Graham-Harrison.