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The “state secrets privilege” stems from a 1953 case known as United States v. Reynolds, where the government essentially lied and claimed if relatives of victims of a military plane crash were informed of how their loved ones died it would compromise “secrets.”
U.S. Air Force documents declassified decades later showed accident reports and witness statements contained no secrets, and victims' families were wrongly deprived of their day in court.
Yet more than a half century after the Reynolds case, the U.S. Supreme Court continues to expand the state secrets privilege and help U.S. military and national security agencies conceal their crimes and abuses of power.
On March 4, the Supreme Court unanimously ruled [PDF] the FBI may invoke the state secrets privilege to prevent the disclosure of information on the illegal surveillance of Muslims.
The Supreme Court ruled the day before that the CIA may invoke the state secrets privilege and conceal information related to the torture of Abu Zubaydah, even though key details are already in the public domain.
Justice Stephen Breyer, who is retiring from the Supreme Court, authored the 7-2 opinion [PDF].
“We conclude that in this case the state secrets privilege applies to the existence (or nonexistence) of a CIA facility in Poland,” Breyer declared. “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.”
Breyer contended the CIA provided a “reasonable explanation” of why James Mitchell and Bruce Jessen, two architects of the CIA torture program, should not be permitted to confirm or deny the information Zubaydah seeks because it could “significantly harm national security interests, even if that information has already been made public through unofficial sources.”
Zubaydah remains in indefinite detention at the Guantanamo Bay military prison. He was the first detainee subjected to what the CIA described as “enhanced interrogation techniques.” The Supreme Court recognized that he was tortured.
Despite the Senate intelligence committee report on CIA torture, testimony from Mitchell and Jessen, Mitchell’s memoir, and findings from the European Court of Human Rights, Breyer maintained, “The CIA itself has never confirmed that one or more of its clandestine detention sites was located in any specific foreign country.”
“Neither, as far as we can tell from the record, have the contractors Mitchell and Jessen named the specific foreign countries in which CIA detention sites were located.”
“Although at least one former Polish government official has stated that Poland cooperated with the CIA, to our knowledge, the Polish government itself has never confirmed such allegations,” Breyer added.
'Let's Think About The Real World'
Bruce Fein, a lawyer and constitutional scholar, described the decision as “appalling” and “ridiculous.”
“The fact that the government invoked the state secrets privilege to any ordinary person confirms that indeed Poland was a site. Why would they invoke state secrets if it wasn’t?” Fein declared.
“Intelligence agencies cooperate with each other because there’s something in it for them. They don’t cooperate because they’re philanthropic or charitable or doing this as a favor,” Fein said. “We know that given the wealth of intelligence we gather as opposed to anybody else—sure, they’re going to continue to cooperate. Because they get more out of the relationship than we do.”
As for the statement that information in the public domain should be covered by the state secrets privilege, Fein called that “absolutely absurd.”
“Let’s think about the real world instead of a fantasized world. All the world knows and acts on the understanding as a fact that Poland was one of the places where we had a black site, where we tortured people.”
“The reliability of the evidence is overwhelming,” Fein added. “So why would it be somehow a betrayal of the Poles to say what all the world already knows?”
Zubaydah sought information related to the black site prison in Poland, confinement conditions and torture, and more generally, his treatment at the facility.
In 2010, Zubaydah’s attorneys submitted a criminal complaint in Poland requesting that prosecutors hold any Polish nationals involved in his torture accountable. Polish prosecutors invoked something called the Mutual Legal Assistance Treaty to seek information from the United States government.
However, similar to prior cases involving torture or war crimes, the U.S. Justice Department refused to comply with the request from Polish prosecutors. That left the prosecutors with little choice but to close their investigation.
In 2015, Zubaydah filed a complaint with the European Court of Human Rights, which found Zubaydah was tortured at a CIA detention facility in Poland, and Polish prosecutors failed to investigate alleged human rights violations.
Polish prosecutors reopened the investigation and once more asked the US Justice Department for information involving the CIA’s torture of Zubaydah. The US Justice Department denied the request, which led prosecutors to invite Zubaydah’s attorneys to share evidence with them that would help them complete their investigation.
CIA Director William Burns asserted the “clandestine” relationships that the CIA has with foreign intelligence services are “critical” and “based on mutual trust that the classified existence and nature of the relationship will not be disclosed.”
The Supreme Court agreed. “Given the nature of Zubaydah’s specific discovery requests there is a reasonable danger that in this case a former CIA insider’s confirmation of confidential cooperation between the CIA and a foreign intelligence service could badly damage the CIA’s clandestine relationships with foreign authorities.”
Justices Elena Kagan and Neil Gorsuch were the only two justices to dissent against the decision, and Kagan and Gorsuch suggested the case be sent back to the Ninth Circuit Court of Appeals on the “issue of torture.” As with the Senate torture report, protective orders and code names could protect the CIA’s “national security” interests.
Since the case arose from an “exclusively discovery-related proceeding aimed at producing evidence for use by Polish criminal investigators,” along with the specific requests for discovery, Breyer dismissed this suggestion.
Any responses, according to Breyer, would “inevitably tend to confirm or deny whether the CIA operated a detention site located in Poland.”
The Supreme Court's 'Empire Mentality'
CIA whistleblower John Kiriakou, who helped lead the operation to capture Zubaydah, reacted, “The Supreme Court acknowledged formally that Abu Zubaydah was not the terrorist that the CIA made him out to be, yet he is still unable to find any justice in this system."
If Zubaydah is not guilty of what he was accused, then nearly two decades later, he must be released, Kiriakou said. (Zubaydah is still not cleared for transfer from Guantanamo.)
Kiriakou was one of the first CIA officers to publicly acknowledge torture was official US policy under President George W. Bush. He became the target of a leak prosecution under the Espionage Act and eventually pled guilty in 2012 to violating the Intelligence Identities Protection Act (IIPA), when he confirmed the name of an officer involved in the CIA’s “Rendition, Detention, and Interrogation” program.
He completed a 30-month prison sentence, and Fein is one of the attorneys who has tried to help Kiriakou obtain a pardon and clear his name.
Fein offered a fifty-thousand foot view of the state secrets privilege. “The Supreme Court has got it terribly wrong for 50 or 60 years. In fact, the Supreme Court is part of what I call the American empire, which wrenches and distorts the Constitution.”
“As a consequence of that empire mentality, [judges] give enormous deference to national security and secrecy that is totally uncalled for in light of the presumed transparency that is required in any Constitution built on the idea that legitimate government depends upon the consent of the governed, if you know what the government is doing.”
“We don’t know the magnitude of the lies because the state secrets privilege keeps them secret,” declared Fein. Not a single syllable in the Constitution hints that there is a state secrets privilege.
The cases in which the states secrets privilege has been invoked illustrate how the privilege primarily exists to help the U.S. government escape criminal allegations: racial discrimination against a CIA whistleblower Jeffrey Sterling, who initiated proceedings challenging his treatment in the workplace (Sterling v. Tenet); sex discrimination by the CIA in the workplace (Tilden v. Tenet); workplace retaliation at the FBI for whistleblower conduct after a translator uncovered infiltration by foreign agents (Edmonds v. Department of Justice); warrantless eavesdropping by the CIA, State Department, and another government agency against a Drug Enforcement Agency agent stationed in Burma (Horn v. Albright).
Other cases involved the extraordinary rendition of an individual from the U.S. to Syria (Arar v. Ashcroft); the abduction, beating, drugging and transportation of an individual to a secret CIA prison in Afghanistan (El-Masri v. Tenet); dragnet surveillance by the National Security Agency (Shubert v. Obama, Jewel v. NSA), warrantless surveillance of communications of customers of a private corporation (Hepting v. AT&T); the placement of a U.S. citizen on a kill list (Al-Aulaqi v. Obama); the CIA's rendition and torture of British resident Binyam Mohamed and four other survivors (Mohamed v. Jeppesen Data Plan); and the murder of an American community worker by U.S.-supported Contras in Nicaragua (Linder v. Calero).
'Incommunicado For The Remainder Of His Life'
James Mitchell and Bruce Jessen were sued in October 2015 by the American Civil Liberties Union (ACLU) on behalf of two torture survivors and the family of Gul Rahman, who died from torture. A federal judge refused to dismiss the case, and the torture architects agreed to a settlement.
Both Mitchell and Jessen were forced to provide testimony so the notion that the CIA should still be able to enforce secrecy and shield the interrogations they carried out from the public is preposterous.
On August 3, 2002, according to the Senate torture report summary, the CIA authorized torture against Zubaydah. He was interrogated on a 24-hour-per-day basis from August 4 to August 23. Only Mitchell and Jessen were supposed to have contact with Zubaydah.
Zubaydah was thrown against a wall, put in a small and large box, and later waterboarded. Over a two-and-a-half-hour period, he “coughed, vomited, and had ‘involuntary spasms of the torso and extremities.’” Zubaydah insisted he could not answer interrogators’ questions about terrorist operations planned against the United States.
During the “aggressive phase of interrogation” that lasted 20 days, CIA interrogators put him in a large coffin-size box for 11 days and two hours. They put him in a small box for 29 hours that was little more than 2 feet wide, 2.5 feet long, and 2.5 feet high. The interrogators informed Zubaydah that “the only way he would leave the facility was in the coffin-shaped confinement box.”
Medical personnel had to bring Zubaydah back from death during one waterboarding session. He was “unresponsive with bubbles rising through his open full mouth.” (The CIA waterboarded Zubaydah at least 83 times.)
Alec Station, the standalone CIA unit tasked with finding Osama bin Laden, received a message from the interrogation team. “Especially in light of the planned psychological pressure techniques to be implemented, we need to get reasonable assurances that [Abu Zubaydah] will remain in isolation and incommunicado for the remainder of his life.”
“All major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life,” Alec Station replied.