On August 20, 2021, PJI joined an amicus brief filed at the United States Supreme Court in the appeal of a detainee at the U.S. Detention Camp in  Guantánamo Bay, Cuba in the case known as The United States of America v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah.

PJI joined this brief along with several other human rights organizations, including the International Federation for Human Rights, the World Organization Against Torture, the European Center for Constitutional and Human Rights (ECCHR), the Center for Victims of Torture (CVT), REDRESS, Human Rights Advocates, the Global Justice Clinic at New York University School of Law, the International Human Rights Clinical Program at Boston University School of Law, the Human Rights Policy Lab (HRPL) at the School of Law of the University of North Carolina at Chapel Hill, the International Human Rights Clinic at Santa Clara University School of Law, and the War Crimes Research Office (WCRO) at American University Washington College of Law. Amici were represented by Dorsey & Whitney LLP.

Abu Zubaydah was subjected to torture through the CIA’s so-called “enhanced interrogation” program, including being the first U.S. detainee to be subjected to the torture technique known as water boarding. He was held in CIA “black sites” located in various third countries from 2002 to 2006, and he is currently held at Guantánamo. He has never been charged with any crime. The Ninth Circuit and the European Court of Human Rights have both found that Abu Zubaydah was tortured.

Through his attorneys, Abu Zubaydah filed a criminal complaint in Poland seeking to hold Polish officials accountable for their role in his torture, and in connection with that process he applied for discovery to be used in a foreign proceeding. Specifically, he sought information from two psychologists who designed the CIA torture program, James Mitchell and Bruce Jessen, in accordance with federal law (28 U.S.C. § 1782). The U.S. government invoked a blanket state secrets privilege, moving to deny the discovery Abu Zubaydah sought, thus withholding even publicly available information from him. The district court granted the government’s motion, denying Abu Zubaydah access. The Court of Appeals for the Ninth Circuit reversed, ordering the district court to separate privileged from non-privileged information. The Supreme Court agreed to review the case on the U.S. government’s request.

In the brief, amici argue that the United States has long held itself out to the world as a beacon of freedom. Further, the United States has played a critical role in the development of legal instruments designed to prevent human rights abuses and ensure accountability when abuses occur. It has been a powerful voice, urging nations of the world to abide by those legal instruments and principles, including by making amends for human rights violations. Thus, the brief argues, if the United States is allowed to preclude the disclosure of all information about the torture of Abu Zubaydah, such secrecy will harm not only him but other victims and all those working around the world to ensure transparency and accountability for human rights abuses (including authorities in Poland who are seeking to meet their human rights obligations as to Abu Zubaydah).

Argument was heard before the U.S. Supreme Court on October 6, 2021. As reported by Abu Zubaydah’s counsel, during oral argument several Justices explicitly referenced the treatment which Abu Zubaydah received at the hands of the CIA as “torture.” This is a notable departure from the U.S. government’s typical avoidance of this term which suggests the full force of the atrocities committed at CIA black sites around the world. However, the Justices’ remarks also highlighted how far there is yet to go: Abu Zubaydah has been in U.S. custody for almost 20 years and other detainees at Guantanamo are in similar positions, unable to fully testify as to their own experiences of torture without CIA censorship. Even though the Biden administration recently informed the Court that it would allow Abu Zubaydah to provide testimony in the Polish investigation, his comments would still be subject to a national security review, meaning it could be partially or entirely redacted. It remains to be seen how the Supreme Court will rule in this case and what impact their decision will have on the lives of Abu Zubaydah and other detainees.

Read the brief here: