- The Washington Times
Thursday, March 3, 2022

The Supreme Court ruled Thursday against a Guantanamo detainee seeking documents related to his treatment and detainment overseas at a CIA black site alleged to be in Poland.

Abu Zubaydah, an ally of Osama bin Laden, was captured in Pakistan in 2002 and kept at a CIA detention facility abroad where he was repeatedly waterboarded, placed in tight spaces and deprived of sleep.

He and his lawyer filed a criminal case in Poland over his treatment by two former CIA contractors. Polish officials sought to get information from the U.S. government, which declined to cooperate, citing national security concerns.

Zubaydah and his lawyer sought discovery against the former contractors in a federal case, prompting the government to intervene and assert its “state secrets privilege.” Zubaydah’s lawyers wanted to use the information from the CIA contractors in their criminal complaint in Poland.

The U.S. Circuit Court of Appeals for the 9th Circuit sided with Zubaydah, rejecting the government‘s claims of potential harm to national security.

The Trump administration had asked the justices to review the case, and the Justice Department under President Biden continued to fight against the compelled discovery, arguing that the 9th Circuit got it wrong.

The Supreme Court, in a 7-2 ruling, said the government could assert the “state secrets privilege.”

“The state secrets privilege permits the Government to prevent disclosure of information when that disclosure would harm national security interests,” Justice Stephen G. Breyer wrote for the court.

“In assessing the Government’s claim that disclosure may harm national security, courts must exercise the traditional ‘reluctance to intrude upon the authority of the Executive in military and national security affairs,’” he said.

Justice Neil M. Gorsuch and Justice Sonia Sotomayor dissented from the majority ruling, arguing some of the information sought was detailed in a Senate report that has since been made public.

“There comes a point where we should not be ignorant as judges of what we know to be true as citizens,” Justice Gorsuch wrote in a dissent joined by Justice Sotomayor. “This case takes us well past that point. Zubaydah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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