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.

The U.S. Supreme Court issued its split decision on March 3, 2022. The Court reversed the decision of the Court of Appeals for the Ninth Circuit, ruling that all of the requested information was privileged as a state secret. As a result, none of the information will be disclosed to Zubaydah. The Supreme Court agreed with the government’s argument that there are occasions where public information may be protected as a state secret if its confirmation or denial could harm national security. The Court also agreed that allowing the requested disclosures in this case had the potential to damage the CIA’s clandestine relationships with foreign authorities. The government argued that harming these relationships would create a national security risk by breaching the trust of foreign authorities and jeopardizing other important relationships. The Court found that this risk was a valid reason for the CIA to invoke the state secrets privilege, placing the burden back on Zubaydah to make a showing of necessity for his requested disclosure. On review of the record, the Court held that Zubaydah had failed to prove any nontrivial need for his requested discovery and therefore that the Court was not required to probe the government’s invocation of the state secrets privilege. Thus, the Court sent the case back to the lower court with instructions to dismiss Zubaydah’s application for discovery.

It remains to be seen what exact impact this decision will have on the lives of Abu Zubaydah and other detainees. However, it is likely that this decision will make it harder to hold perpetrators of human rights abuses accountable in U.S. courts. The Court has effectively limited the information that a victim can obtain from the United States, even when that information is already public, as long as the government can characterise it as a privileged state secret.

Read the brief here:

Read the slip opinion here:

221003.US v. ZUBAYDAH slip.op