Twenty years after September 11, President Joe Biden has declared that “it’s time to end the forever war,” and ordered the withdrawal of American forces from Afghanistan. But there is one place where the Biden administration remains as committed to the forever war as its predecessors: inside federal courtrooms, where it is continuing to argue that national security shields the executive branch from judicial scrutiny. Next month, the Justice Department will argue to the Supreme Court that the “state secrets privilege” requires concealment of evidence about the CIA’s torture of a prisoner named Abu Zubaydah, evidence that has been public for over a decade.
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Since the September 11 attacks, the U.S. government has repeatedly used “state secrets” as an excuse to hide mass surveillance, denial of Muslim Americans’ rights, drone killings (including of U.S. citizens), torture, and other abuses from judicial scrutiny. Keeping these disputes out of court left victims of serious abuses of power without any remedy, and gave the executive branch the last word on the legality of its own actions.
During that time, the Supreme Court repeatedly declined to review lower courts’ dismissals of lawsuits on grounds of state secrets. It only got involved when lower courts started rejecting the government’s claims of secrecy — an indication that rather than reining in the state secrets privilege, the court is likely to expand it. That is a possibility that should alarm us all.
Abu Zubaydah: The First Victim of “Enhanced Interrogation”
On September 17, 2001, less than one week after the September 11 attacks, President George W. Bush signed a classified “Memorandum of Notification” authorizing the CIA to secretly capture and imprison persons who pose “a continuing, serious threat of violence or death to U.S. persons and interests or [who are] planning terrorist activities.”
The CIA had captured terrorism suspects in the decade before September 11. Suspects were usually held in CIA custody for a short time before being transferred to their home countries, where they were usually wanted on criminal charges — most commonly Egypt. Before September 11, each “rendition” required high-level approval of the decision to capture and transfer specific, named individuals. CIA officials maintained that the purpose was to get suspects off the street, not to interrogate them, although many were interrogated under torture.
Bush’s September 17 memorandum of notification removed these limits and gave lower level CIA officials “significant discretion in determining whom to detain, the factual basis for the detention, and the length of the detention,” in the words of a Senate Intelligence Committee report. The CIA captured more people, based on less evidence, and rendered them to foreign countries including Syria, Egypt, Jordan, Morocco, and Libya for interrogation and torture.
But in March 2002, the U.S. government captured a suspect whose interrogation it considered too important to outsource. On March 28, 2002, U.S. and Pakistani forces captured over 30 suspects in a series of raids in Faisalabad, Pakistan. One of the suspects was a Palestinian man named Abu Zubaydah, whom the CIA mistakenly believed was a high ranking al-Qaida member.
While still recovering from severe gunshot wounds, Zubaydah was flown to a covert CIA detention facility in Thailand. Although Zubaydah was held at a CIA prison, FBI agents Ali Soufan and Steve Gaudin were the first to arrive at the site, and began his interrogation using non-coercive techniques. During those early interrogations, Zubaydah identified Khalid Sheikh Muhammad as the mastermind of the September 11 attacks, and provided other useful information about al-Qaida. But the CIA, convinced that Zubaydah was withholding details about future attacks on the United States, contracted with a psychologist named James Elmer Mitchell to provide advice on Zubaydah’s interrogation.
Mitchell was not an interrogator. He and his fellow contractor and future business partner, Bruce Jessen, were psychologists who had worked as instructors with the U.S. Air Force Survival, Evasion, Resistance and Escape school, which trained U.S. military personnel to resist coercive interrogations that they might face in enemy hands. Mitchell and Jessen believed that they could use more brutal forms of the techniques used at the school to induce a state of “learned helplessness” in CIA prisoners, leaving them unable to resist telling interrogators everything they knew. The CIA’s counterterrorism center concurred. Mitchell and Jessen’s company would eventually receive over $81 million for their central role in operating what the CIA euphemistically called its “enhanced interrogation” program.
In mid-April 2002, Mitchell began using “enhanced” techniques on Zubaydah, including nudity and sleep deprivation. Soufan objected, both to his FBI superiors and to Mitchell, and left Thailand with his supervisors’ approval. Eventually Gaudin left too, and the FBI ordered him not to return.
Mitchell made a list of 12 brutal interrogation techniques he proposed to use on Zubaydah. They included not only sleep deprivation but also physical blows; slamming a prisoner into a wall; stress positions; “cramped confinement” in coffin-sized or smaller boxes; the use of diapers; the use of insects; waterboarding; and mock burial. He also suggested that the CIA hire Jessen.
The Justice Department’s Office of Legal Counsel, which is supposed to provide guidance to agencies on whether their proposed actions are legal, formally approved all of the techniques other than mock burial. The CIA then authorized Mitchell and Jessen to begin using them on Zubaydah. Starting on August 4, 2002, they tortured him for almost 24 hours a day for several weeks.
During that time, Zubaydah was kept naked, shackled, and hooded. He was slammed into a concrete wall, and waterboarded at least 83 times, leading to vomiting, “immediate fluid intake and involuntary leg, chest, and arm spasms,” and “hysterical pleas,” in the words of CIA cables quoted in a Senate report on the torture program. After one session, he “became completely unresponsive,” and remained unconscious until medical intervention.
In between waterboarding sessions, Zubaydah was often kept in one of the “confinement boxes.” According to the Senate report:
Abu Zubaydah spent a total of 266 hours (11 days, 2 hours) in the large (coffin size) confinement box and 29 hours in a small confinement box, which had a width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet.
Despite all this, Zubaydah continued to deny any knowledge of plans for future terror attacks on the United States. After about a week of torture, the interrogation team in Thailand started to believe him. They wrote to CIA headquarters that it was “highly unlikely” that Zubaydah was withholding intelligence about threats to the United States, and warned that the severity of his treatment was “approach[ing]” the legal limit. The head of the CIA counterterrorism center wrote back that “[s]uch language is not helpful.” Headquarters ordered the interrogation to continue.
This brutality did not uncover new details about any plans to attack the United States. Nonetheless, Mitchell and Jessen deemed their interrogation of Zubaydah a success, because “our goal was to reach the stage where we have broken any will or ability of subject to resist or deny providing us information.” They suggested that it be used as “a template for future interrogation of high value captives.” The CIA agreed.
The Truth Starts to Come Out
Zubaydah’s torture, and the CIA’s torture program more generally, was meant to remain hidden forever. The CIA classified the program at the highest level, and restricted knowledge of it even among those with the highest security clearance. It did not brief the secretaries of State or Defense on the program until September 2003, or provide details to President Bush of the specific “enhanced interrogation” techniques used until April 2006, nearly four years after it began. The CIA did not brief most members of the House and Senate intelligence committees on the program until September 2006.
The briefings that the CIA did provide were full of false claims that the “enhanced interrogations” were necessary to thwart terrorist attacks and save lives. These falsehoods were also central to the Office of Legal Counsel “torture memos” authorizing the program in 2002 and re-authorizing it in 2005 and 2007.
The CIA was even more determined to hide the torture program from the broader public. Before the agency began applying the “enhanced interrogation techniques,” the team at the black site in Thailand sent a cable requesting “reasonable assurances” that Zubaydah “will remain in isolation and incommunicado for the remainder of his life.” CIA officials wrote back agreeing that the prisoner “should remain incommunicado for the remainder of his life.” (Zubaydah was eventually able to communicate with the International Committee of the Red Cross and get access to counsel, but his communication with the outside world remains severely restricted and the U.S. government seems to intend to imprison him until his death.)
Zubaydah’s sessions were videotaped, but 21 hours of footage were deleted or recorded over before internal CIA investigators reviewed the tapes. CIA officers spent the next several years seeking permission to destroy the rest. In 2005, the remaining tapes were destroyed in an industrial-strength shredder, on the orders of the director of the CIA’s National Clandestine Service, Jose Rodriguez, and his deputy, Gina Haspel. (Haspel would go on to become CIA director under President Donald Trump.)
But the torture program did not remain secret forever. In part, this was because use of torture spread through the CIA like a virus and, before long, infected the military too.
In September 2002, the CIA opened a secret prison in Afghanistan, identified in the Senate intelligence committee report as “DETENTION SITE COBALT.” That November, a CIA officer killed a prisoner there. The victim, an Afghan man named Gul Rahman, died of hypothermia after the CIA left him partially naked and shackled to the floor of a concrete cell in 30 degree weather. At least 64 prisoners were held at COBALT, which a CIA official described as “a dungeon.” The true number may have been higher, but it’s impossible to know because the CIA kept poor records at COBALT. They kept even worse records at other facilities in Afghanistan.
Authorization of brutal techniques spread to the military in Afghanistan, Guantanamo, and Iraq. In all cases, interrogators and guards also went beyond what was authorized — most notoriously, at the Abu Ghraib prison in Iraq, where photographs of guards torturing prisoners became a public scandal in April 2004. The Bush administration claimed that the photos showed the isolated, unauthorized acts of a few low-ranking military guards. But the most disturbing pictures from Abu Ghraib showed the corpse of a prisoner killed during an interrogation by the CIA.
After Abu Ghraib, a trickle of news reports about torture became a torrent. Several of the legal memos justifying torture were leaked to the press. Prisoners at Guantanamo Bay got access to lawyers and began describing the abuse they had suffered there and in Afghanistan. Other victims of CIA black sites and “renditions” got out of jail and told their stories. Investigative journalists, human rights researchers, and amateur aviation enthusiasts began tracking private jets that the CIA used to transport prisoners, and used flight records to track renditions to and from secret CIA prisons in Thailand, Afghanistan, Poland, Romania, and Lithuania. In September 2006, Bush acknowledged that the CIA had operated detention sites where it subjected prisoners to “an alternative set of procedures.” There were investigations by governments and non-governmental organizations, in the United States and overseas.
Public but Classified
The CIA did not give up its secrets without a fight. It opposed disclosures about its torture program at every turn, even as it released false claims that “enhanced interrogation” had thwarted attacks and saved lives.
When President Bush acknowledged the existence of the CIA interrogation program in 2006, he refused to disclose the specific techniques used to torture prisoners. In 2009, President Barack Obama ordered the release of the still-classified Justice Department torture memos, over the CIA’s objections. The CIA then took the position that, while the sanitized descriptions of “enhanced interrogation” in the torture memos had been declassified, individuals’ memories of their own torture remained state secrets.
Over and over, the CIA has warned of dire threats to national security if the details of its torture program become public. Those warnings have been repeatedly proven false when the evidence has come out.
But no matter how many times the intelligence community cries wolf, U.S. courts still defer to them on the need for secrecy. Before the publication of the Senate report, every civil lawsuit brought by a victim of CIA torture and rendition was dismissed on grounds that allowing it to proceed would endanger national security. At Guantanamo, descriptions of detainees’ treatment in CIA custody were censored in military commissions proceedings, and medical professionals were instructed not to ask about their patients’ history of abuse. The policy on secrecy did not prevent the architects of the torture program from writing memoirs about it, or the agency from assisting in the production of the Hollywood blockbuster Zero Dark Thirty, which falsely portrayed “enhanced interrogation” as leading to crucial breakthroughs in the hunt for Osama Bin Laden.
When the Senate Intelligence Committee completed a comprehensive investigation of the torture program in 2014, the CIA surveilled Senate investigators, and tried to get one of them prosecuted based on a false claim that he had hacked into agency computers. Even after the Senate report’s hard-fought release, the CIA refused to acknowledge which countries hosted black sites or participated in renditions. The agency also refused to acknowledge the involvement of specific CIA officials and contractors in torture — including not only undercover officers serving overseas, but also high ranking officials at headquarters and lawyers who had openly acknowledged their CIA affiliation for years.
Notable exceptions to the latter rule were Mitchell and Jessen, the psychologists who designed the “enhanced interrogation” techniques and applied them to Zubaydah and other CIA detainees. Mitchell and Jessen were identified by the pseudonyms “Grayson Swigert” and “Hammond Dunbar” in the Senate report, but after it was published Mitchell dropped the pretense. He wrote his memoirs and began making appearances on Fox News. He and Jessen testified under oath in a civil lawsuit brought by CIA torture victims against them — the first that survived a motion to dismiss. They also testified in pretrial hearings at the Guantanamo Bay military commissions.
Zubaydah is not facing charges in a military commission or any other U.S. court. His lawyers sued under a law that empowers federal court judges to order a person to produce testimony or evidence “for use in a proceeding in a foreign or international tribunal,” seeking to compel Mitchell and Jessen to testify in a Polish criminal investigation into the CIA black site there. (Polish prosecutors have repeatedly requested cooperation from the U.S. government in the investigation, to no avail.)
Predictably, the government moved to dismiss the case on grounds that it would require disclosure of state secrets. A district court granted the motion, but the U.S. Court of the Appeals for the Ninth Circuit reversed.
Writing for the majority, Judge Richard Paez wrote that “in order to be a ‘state secret,’ a fact must first be a ‘secret.’” The fact that the CIA operated a prison in Poland has been public for well over a decade, confirmed by multiple European court decisions, acknowledged by former Polish government officials (including the former president and prime minister of Poland at the time the site operated), and corroborated by a wealth of other evidence. The court conceded that official U.S. government acknowledgment of this fact might still harm national security, but ruled that Mitchell and Jessen were private citizens, and their testimony would not constitute official government confirmation any more than it had in the other cases where they gave evidence. It remanded the case to the district court to work out the details about what testimony Mitchell and Jessen could be compelled to provide.
The Justice Department — first under Trump, and now under Biden — sought review by the Supreme Court, and the Supreme Court accepted. If the justices’ past history is any guide, the court is very likely to rule in the government’s favor, and further expand state secrets privilege.
Secrecy and Impunity
The Supreme Court’s ruling may not have much of a concrete effect on Zubaydah’s case. It is unclear what limits the district court would have placed on Mitchell and Jessen’s testimony, or whether the two psychologists would really be willing to incriminate themselves to Polish prosecutors. But the government’s ongoing coverup of the CIA torture program, and the Supreme Court’s likely ratification of that coverup, have other consequences.
The U.S. government does not need to invoke the state secrets privilege to prevent Zubaydah from testifying in Poland about his torture or in any other court. They can simply keep him locked up for the rest of his life, as the CIA planned in 2002. It is very difficult to believe that covering up his torture plays no role in his status as a “forever prisoner.”
The torture program and the ongoing coverup have also made justice for September 11 impossible. Twenty years on, the defendants’ trials have not even begun. The executive branch refuses to concede that the due process clause of the U.S. Constitution applies at Guantanamo Bay, and has not cleanly renounced the use of evidence obtained under torture in military commissions. The only outcomes that seem plausible are indefinite delay, or executions after unfair trials.
An expansion of the state secrets privilege would enable other abuses too. The government has already successfully argued for dismissal of lawsuits from civilians who lost family members in drone strikes on national security grounds. If the state secrets privilege is expanded, the likelihood that victims of targeted killing will get justice, acknowledgment, or compensation will decline even further.
The Supreme Court will hear another state secrets case this fall where the FBI is seeking dismissal of a lawsuit alleging that it spied on Muslim men solely on the basis of their religion. If the FBI prevails in that case, it will be able to continue racial and religious profiling, reinforcing the separate and unequal justice systems the United States has for Muslim and non-Muslim terrorism suspects.
Worse than any of these consequences may be the future atrocities that secrecy enables. If the government can use its national security powers to hide evidence of torture that has been public for over a decade, what crimes can’t it cover up?
There are steps all three branches of government could take to rein in the abuse of national security secrecy:
- The president should order the full declassification of the CIA torture and rendition program. He should revise the executive order on national security classification to forbid classification that has the effect of concealing severe human rights violations, crimes, or violations of the Constitution. He should also direct the Justice Department to stop arguing for expansion of the state secrets privilege, renounce the use of evidence derived from torture, and concede that the due process clause of the 14th Amendment protects individuals detained at Guantanamo Bay.
- The Supreme Court should reject the government’s attempts to expand the state secrets privilege. Lower courts should look more skeptically at the government’s invocations of national security secrecy. Rather than accept blanket assertions about the need for secrecy, courts should insist on reviewing classified evidence, including relevant documents and testimony from officials with direct knowledge, and ensure that opposing counsel with security clearances can contest the government’s arguments.
- Congress should pass laws authorizing civil suits against federal officials for violations of the Constitution, and limiting the use of the state secrets privilege.
The odds of any branch of government taking these actions are slim, but the public must insist.
The Bush administration’s worst abuses of human rights happened in other countries. In recent years the authoritarian impulses, xenophobia, and racial animus that the war on terror unleashed have come closer and closer to home. They now pose a greater threat to our democracy than al-Qaida ever did.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.