Supreme Court Justices Ask Why a Guantanamo Detainee Cannot Testify

Supreme Court justices on Wednesday questioned why the U.S. government will not let a suspected high-ranking al Qaeda figure held at the American naval base at Guantanamo Bay, Cuba testify about his torture at the hands of the CIA.

Three of the nine justices pressed U.S. Acting Solicitor General Brian Fletcher on the subject as the court heard oral arguments in the government's bid to prevent two former CIA contractors from being questioned in a criminal investigation in Poland examining the treatment of detainee Abu Zubaydah.

Zubaydah, a Palestinian man captured in 2002 in Pakistan and held by the United States since then without charges, repeatedly underwent waterboarding, a form of simulated drowning widely considered torture.

While the justices in general seemed skeptical that Zubaydah's lawyers could overcome the government's national security arguments, some raised the option of Zubaydah testifying himself as an alternative.

"Why not make the witness available?" asked conservative Justice Neil Gorsuch, referring to Zubaydah. "What is the government's objection to the witness testifying to his own treatment and not requiring any addition from the government of any kind?"

Zubaydah's testimony, Gorsuch said, would provide an "off-ramp ... that would obviate the need for any of this."

Liberal justices Stephen Breyer and Sonia Sotomayor seemed to agree, with Breyer questioning why Zubaydah remains at Guantanamo.

"I don't understand why he is still there," Breyer said.

"We want a clear answer," Sotomayor added.

Fletcher would not commit on whether Zubaydah could testify but said he could report back to the justices. Zubaydah's lawyers have said he is not permitted to testify under the conditions of his Guantanamo confinement.

The government is appealing a lower court ruling that Central Intelligence Agency contractors James Elmer Mitchell and John Bruce Jessen could be subpoenaed under a U.S. law that lets federal courts enforce a request for testimony or other evidence for a foreign legal proceeding.

Poland is believed to be the location of a "black site" where the CIA used harsh interrogation techniques against Zubaydah.

Zubaydah, now 50, has spent 15 years at Guantanamo and is one of 39 detainees still held there. He lost an eye and underwent waterboarding 83 times in a single month while held by the CIA, U.S. government documents showed.

He was "an associate and longtime terrorist ally of Osama bin Laden," the leader of the al Qaeda Islamist militant group killed by U.S. forces in Pakistan in 2011, a Justice Department filing said.

The justices have turned away multiple cases brought by Guantanamo detainees challenging their confinement. Zubaydah's own case has been pending in lower courts for 14 years.

Zubaydah's lawyers want Mitchell and Jessen to testify and provide documents in the criminal investigation in Poland. The U.S. government has asserted what is known as the "state-secrets privilege" to prevent them from being questioned, saying it would jeopardize national security.

Zubaydah's lawyer David Klein said the fact that there was a "black site" in Poland is widely known, not a state secret. Mitchell and Jessen could testify about what they saw and heard without mentioning the location, according to Zubaydah's lawyers. The government disputes that assertion.

Klein said the evidence is needed to confirm that Zubaydah was tortured when he was in Poland.

Conservative Chief Justice John Roberts appeared sympathetic to the government's position, noting that if the United States confirms facts that implicate Poland's government "that would be a breach of faith with our allies."

The U.S. government has disclosed that Zubaydah was held overseas and interrogated using "enhanced interrogation techniques" but has not revealed the location of the sites. The European Court of Human Rights in 2015 determined that Zubaydah was held in Poland in 2002 and 2003.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled in 2019 that Mitchell and Jessen could be subpoenaed. A Supreme Court ruling is due by the end of June.

Details of CIA activities were confirmed in a 2014 U.S. Senate report that concluded that the interrogation techniques were more brutal than originally disclosed and that the agency misled the White House and public about its torture of detainees captured overseas after al Qaeda's Sept. 11, 2001, attacks on the United States.