During the time of multiple presidential administrations now, both Republican and Democrat, the Central Intelligence Agency, aka the CIA, has been known to operate prisons outside of the United States itself, and, according to information uncovered in Congressional hearings, torture of prisoners taken during the second Gulf War took place in those locations.
One prisoner still being held in the facility at Guantanamo Bay in Cuba is suing the U.S. government for his treatment at one such prison in Poland. Subpoenas have been issued in the case, but the government will not allow the man to testify in this matter citing national security and state secrets as cover.
Abu Zubaydah, who has been held at Guantanamo since 2006, wants to subpoena the former CIA contractors who developed the program of waterboarding, sleep deprivation, and other techniques used by President George W. Bush’s administration in overseas facilities following the 2001 terrorist attacks. The Biden administration says the information Zubaydah seeks would reveal state secrets.
Several of the conservative justices signaled they were skeptical of Zubaydah’s argument and quizzed his attorney to explain what he hoped to achieve with the testimony. But a number of justices also pressed the government on allowing Zubaydah to testify as part of a Polish inquiry into the CIA program in that country.
After more than an hour of argument, and just as an attorney for the Biden administration was preparing to close his presentation with a brief rebuttal, Associate Justice Neil Gorsuch launched into a series of questions on whether the Biden administration would allow Zubaydah to testify – and if not, why not.
“Why not make the witness available? Gorsuch asked. “I’d just really appreciate a straight answer to this: Will the government make petitioner available to testify as to his treatment during these dates?”
That prompted Associate Justice Stephen Breyer to raise a more fundamental question of “why he’s still there after 14 years.” Associate Justice Sonia Sotomayor jumped in next.
“We want a clear answer: Are you going to permit him to testify as to what happened to him (on) those dates without invoking a state secret or other privilege?” she asked. “Yes or no?”
These questions can well open up a number of cans of worms as other prisoners could testify during lawsuits. In addition, the CIA does not want the locations of its secret prisons revealed even if they probably should be prior to dismantling or abandoning them. And no part of the government wants to be tagged with the torture label.
Unfortunately, the Supreme Court justices are asking questions that really do need to be answered.
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