The State Secret Privilege vs. The CIA’s Worst Kept Secret

By: Alexandra Spaw, October 17, 2021

Shortly after the nation was rocked by the events of 9/11, Abu Zubaydah was apprehended in Pakistan and became the first prisoner held by the CIA to undergo extensive torture. The George W. Bush administration marked Zubaydah as a top al-Qaeda official, believing him to be Osama bin Laden’s number three man. Once in custody, Zubaydah was taken to “black sites” in Thailand and Poland. Black sites are secret prisons outside of the United States that were routinely used to subject prisoners to torture. Zubaydah was subjected to multiple forms of torture while at the black sites, including waterboarding. The worst of the torture consisted of a span of 20 days in which Zubaydah was waterboarded 83 times in that period of time alone.

The black sites were suspended in 2006 after a Supreme Court ruling which found that all detainees, including those held by the CIA, had to be treated consistently with the Geneva Conventions. The Geneva Conventions set standards that bar cruel treatment, degradation, and torture, even in wartime. After his time in the black sites, Zubaydah was taken to Guantanamo Bay. Zubaydah remains in Guantanamo Bay to this day, despite never being charged with a crime since his capture in 2002. Importantly, a 2014 report from the Senate Select Committee on Intelligence stated that “the CIA later concluded that Abu Zubaydah was not a member of al-Qaeda.” 

Zubaydah filed a complaint in Poland in 2010, attempting to hold Polish officials accountable for their role in his detention at the Polish black site. Such complaint prompted Polish prosecutors to seek information from the United States about the operations in Poland. The United States government did not provide the requested information, citing national security grounds as the basis for its refusal. Zubaydah’s attorney then turned to the European Court of Human Rights, which caused the Polish investigation to be reopened. However, the United States again declined to cooperate and refused to provide any information about Zubaydah’s time in Poland.

It is this chain of events that led Zubaydah’s attorney to file suit in the United States as well, seeking testimony from the two psychologists in charge of supervising Zubaydah’s questioning. The psychologists were defense contractors for the CIA and are credited with creating the torture methods used on Zubaydah. The case recently made it up to the United States Supreme Court. The question in front of the Court is whether the government could invoke national security to block the testimony of the two psychologists. On behalf of the Biden administration, the Solicitor General Brian Fletcher argued that the two psychologists should not be permitted to testify in the Polish court’s investigation. Fletcher cited to the “state secret” privilege as the basis for barring such testimony.

The state secrets privilege was adopted by the Supreme Court in 1953, and allows the government to attempt to block evidence in the interest of national security. The rules governing the privilege’s application came about in United States v. Reynolds. In Reynolds, the widows of three civilians who died in a military plane crash filed a wrongful death action against the government. The Court held that the privilege can be invoked where “there is a reasonable danger that compulsion of the evidence will expose matters which, in the interest of national security, should not be divulged.” 

The Court must now decide whether the government will be able to hide behind the state secret privilege to conceal Zubaydah’s torture while in US custody. The outcome of this case is important because of the precedent it may set. Depending on the ruling, the case could have a profound impact on future cases where the government wishes to utilize the state secret privilege. The justices must weigh the interest of justice in Zubaydah’s specific case against the interest of national security. However, this case is an anomaly because based on the information known currently, it doesn’t seem like Zubaydah’s torture is much of a secret anymore.

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