Arguments about the government’s ability to assert what is known as the “state-secret privilege” are reportedly being questioned.
The central issue of the case concerns whether Zubaydah, 50, who was captured in Pakistan in 2002, will be able to obtain information related to his detention.
Zubaydah and his lawyer are requesting a subpoena testimony from two former CIA contractors who supervised his torture while detained at the “black site” CIA facility in Poland.
A federal appeals court allegedly sided with Zubaydah and claimed that a judge has the power to determine whether any information he is seeking can be disclosed, regardless of the government’s oath to keep the information a secret.
Zubaydah, the first person held by the CIA, spent four years at CIA black sites where he underwent extensive torture, before being transferred to Guantánamo Bay in 2006. He was described as an al-Qaeda* leader and long-time associate of Osama bin Laden before the Senate torture report later found that the CIA had "significantly overstated" Zubayah's role in the organization.
The CIA black site in Poland has never been publicly acknowledged by the US government, though its existence has been widely reported in the media.
Zubdayab’s lawyers reportedly noted that they expect non-privileged information from contractors James Elmer Mitchell and John Bruce Jessen underlining Zubdayah’s “torture in Poland, his medical treatment and the conditions of his confinement.”
The Biden administration insists that information — that includes the locations of former CIA detention facilities — cannot be disclosed to prevent it from jeopardizing national security.
After a federal court initially ruled that Mitchell and Jessen should not be required to testify, an appeals court ruled 2-1 that the lower court made a mistake in ruling out questioning entirely before attempting to differentiate what can and cannot be disclosed.
Zubaydah’s lawyers say the CIA was mistaken in believing he was a high-ranking member of al-Qaeda.
The government reportedly acknowledges that Zubaydah's treatment by the CIA "included the use of enhanced interrogation techniques."
The Supreme Court is set to hear arguments next month in another case involving questions about the state secrets privilege. That case, FBI v. Fazaga, arose out of the use of an FBI informant to secretly infiltrate Muslim communities in southern California more than a decade ago. Oral arguments will take place on November 8.
*A terrorist organization banned in Russia and many other states