Day three of OT 2021 brought us just one new argument, with the Court preparing to head into its long Indiginous People's Day weekend (yeah, they call it Columbus Day. Columbus Day sucks, I'm not calling it that). Nonetheless, the day wasn't without some intrigue and drama!
(1) The case heard today was U.S. v. Zubaydah, and if that sounds familiar, you're probably a history or politics nerd who is a little older than the average Europeian. Zubaydah was captured by the US and detained as an enemy combatant/terroristic actor in Pakistan in 2002. Over the next 4 years he was shuttled around the world to black ops sites - something the US has generally denied but which there is plenty of evidence for nonetheless. Finally, in 2006, Zubaydah ended up in Guantanamo, where he has been ever since. In the interim, much information has come out and been declassified about what happened to Zubaydah during the 4 years he was shuffled around the world - including the fact that he was subjected to "enhanced interrogation techniques" - i.e. torture - while in US custody. After a European Court of Human Rights case in 2014 found Poland guilty of conspiring with the United States in the torture of Zubaydah and ordered him to be compensated, a Polish criminal investigation was opened which is ongoing - and it is that investigation that this case is involved with.
(2) As part of the Polish investigation, Zubaydah's lawyers want evidence from two CIA officers who carried out the torture in Poland (something which has been partially declassified) to be made available for discovery under 28 U.S.C. 1782, a provision that allows discovery for international proceedings. The United States is challenging this discovery on state secrecy grounds, arguing that while much of the information (about a black site being in Poland, and about torture techniques being used there) has been released publicly, the United States has not actually acknowledged it officially - something the US doesn't want to do and has reasons not to do to maintain plausible deniability and to maintain the confidence of its intelligence partners. This point would be questioned repeatedly during oral argument, with multiple Justices saying, effectively, "You have all the information you need already, you're just trying to get it on the record from as official a source as possible, right?" - something the lawyers for Zubaydah deny. They say they need the testimony to establish a connection between the location and the timing of the torture to ensure it is clear that it was carried out in Poland ... and that the information can be provided to the Polish prosecutor without actually *saying* that. Yeah, everyone here is sort of pretending that there's something left to hide when there really isn't, but that's what happens when a government doesn't want to officially admit something.
(3) A few remarkable exchanges happened in the second half of the argument time with Justices going a bit off the rails and perhaps forgetting that they aren't European judges who are entitled to go beyond the scope of the case they're hearing to issue orders and seek Justices. The first to go there was Justice Breyer during the oral argument time of Mr. Zubaydah's lawyers. Here's a transcript of the exchange, in which Justice Breyer expresses incredulity not just that testimony isn't just directly solicited from Mr. Zubaydah, but that Mr. Zubaydah has been sitting in Guantanamo for 14 years with little being done by the court system to get him out (as a matter of fact, there's been a very, very long delay by the US court system in processing any motions involving Zubaydah):
(4) Justice Breyer would not be the only one to go down this rabbit hole. During the rebuttal argumet, the attorney for the United States said that Mr. Zubaydah was not being held incommunicado and that there was a process for reaching him that was the same for other detainees at the facility. This led Justices Gorsuch and Sotomayor to get involved with the following exchange:
Of course, the lawyer couldn't commit to this in the middle of a courtroom without discussing this with anyone else - something which Justice Alito tried to make clear with a series of questions he interjected at this point asking what the scope of the lawyer's authority was - but he did commit to getting back to the Court on this issue so perhaps there will be a very unusual supplemental motion filed with the Court answering this question in the coming days. In any case, the above exchanges were truly remarkable and suggest a level of contempt on the Court for how Guantanamo is still being run that could lead to some very interesting cases in the future if anyone tries to take advantage of the opening.
(5) State secrecy usually wins in cases like this but honestly, numerous justices asked whether there is any secrecy left to preserve here, and this could be the rare case where the Court simply says there isn't enough to preserve and allows Zubaydah's lawyers to get the testimony that they want. This will be a fascinating opinion to read when it comes out, although in the long term the side show quotes above may be the most profound piece of this argument moving forward.
(1) The case heard today was U.S. v. Zubaydah, and if that sounds familiar, you're probably a history or politics nerd who is a little older than the average Europeian. Zubaydah was captured by the US and detained as an enemy combatant/terroristic actor in Pakistan in 2002. Over the next 4 years he was shuttled around the world to black ops sites - something the US has generally denied but which there is plenty of evidence for nonetheless. Finally, in 2006, Zubaydah ended up in Guantanamo, where he has been ever since. In the interim, much information has come out and been declassified about what happened to Zubaydah during the 4 years he was shuffled around the world - including the fact that he was subjected to "enhanced interrogation techniques" - i.e. torture - while in US custody. After a European Court of Human Rights case in 2014 found Poland guilty of conspiring with the United States in the torture of Zubaydah and ordered him to be compensated, a Polish criminal investigation was opened which is ongoing - and it is that investigation that this case is involved with.
(2) As part of the Polish investigation, Zubaydah's lawyers want evidence from two CIA officers who carried out the torture in Poland (something which has been partially declassified) to be made available for discovery under 28 U.S.C. 1782, a provision that allows discovery for international proceedings. The United States is challenging this discovery on state secrecy grounds, arguing that while much of the information (about a black site being in Poland, and about torture techniques being used there) has been released publicly, the United States has not actually acknowledged it officially - something the US doesn't want to do and has reasons not to do to maintain plausible deniability and to maintain the confidence of its intelligence partners. This point would be questioned repeatedly during oral argument, with multiple Justices saying, effectively, "You have all the information you need already, you're just trying to get it on the record from as official a source as possible, right?" - something the lawyers for Zubaydah deny. They say they need the testimony to establish a connection between the location and the timing of the torture to ensure it is clear that it was carried out in Poland ... and that the information can be provided to the Polish prosecutor without actually *saying* that. Yeah, everyone here is sort of pretending that there's something left to hide when there really isn't, but that's what happens when a government doesn't want to officially admit something.
(3) A few remarkable exchanges happened in the second half of the argument time with Justices going a bit off the rails and perhaps forgetting that they aren't European judges who are entitled to go beyond the scope of the case they're hearing to issue orders and seek Justices. The first to go there was Justice Breyer during the oral argument time of Mr. Zubaydah's lawyers. Here's a transcript of the exchange, in which Justice Breyer expresses incredulity not just that testimony isn't just directly solicited from Mr. Zubaydah, but that Mr. Zubaydah has been sitting in Guantanamo for 14 years with little being done by the court system to get him out (as a matter of fact, there's been a very, very long delay by the US court system in processing any motions involving Zubaydah):
(4) Justice Breyer would not be the only one to go down this rabbit hole. During the rebuttal argumet, the attorney for the United States said that Mr. Zubaydah was not being held incommunicado and that there was a process for reaching him that was the same for other detainees at the facility. This led Justices Gorsuch and Sotomayor to get involved with the following exchange:
Of course, the lawyer couldn't commit to this in the middle of a courtroom without discussing this with anyone else - something which Justice Alito tried to make clear with a series of questions he interjected at this point asking what the scope of the lawyer's authority was - but he did commit to getting back to the Court on this issue so perhaps there will be a very unusual supplemental motion filed with the Court answering this question in the coming days. In any case, the above exchanges were truly remarkable and suggest a level of contempt on the Court for how Guantanamo is still being run that could lead to some very interesting cases in the future if anyone tries to take advantage of the opening.
(5) State secrecy usually wins in cases like this but honestly, numerous justices asked whether there is any secrecy left to preserve here, and this could be the rare case where the Court simply says there isn't enough to preserve and allows Zubaydah's lawyers to get the testimony that they want. This will be a fascinating opinion to read when it comes out, although in the long term the side show quotes above may be the most profound piece of this argument moving forward.
