A Surprising Proposal at the Supreme Court in Torture Case

WASHINGTON — Twenty years aft the Sept. 11 attacks, the Supreme Court connected Wednesday recovered itself struggling to address 2 issues stemming from that period: torture and authorities secrecy. Before the justices were done for the day, the proceedings had taken a astonishing turn.

The basal question for the justices was whether the authorities could invoke nationalist information to artifact grounds by 2 C.I.A. contractors who were instrumental successful the brutal interrogations of the detainee known arsenic Abu Zubaydah, who was waterboarded much than 60 times and is being held without complaint astatine Guantánamo Bay.

Abu Zubaydah sought to subpoena the contractors successful transportation with a Polish transgression investigation. The enquiry was prompted by a determination by the European Court of Human Rights that helium had been tortured successful 2002 and 2003 astatine concealed sites operated by the C.I.A., including 1 successful Poland.

The United States authorities invoked the authorities secrets doctrine to barroom the contractors from testifying successful an evident effort to debar formally admitting what is communal knowledge: that Poland was big to 1 of the alleged achromatic sites.

Three justices projected a caller solution: Why not fto Abu Zubaydah himself attest successful transportation with the Polish inquiry? By allowing him to picture what helium had endured, the justices suggested, the tribunal could sidestep the question of whether the authorities had to let the C.I.A. contractors to appear.

“Why doesn’t helium testify?” Justice Stephen G. Breyer asked Abu Zubaydah’s lawyer. “He was there. Why doesn’t helium accidental this is what happened?”

The lawyer, David F. Klein, said that was not possible. “He has been held successful Guantánamo incommunicado,” Mr. Klein said of his client.

In the argument’s last minutes, Justice Neil M. Gorsuch urged the government’s lawyer to let Abu Zubaydah to testify.

“Why not marque the witnesser available?” Justice Gorsuch asked Brian H. Fletcher, the acting United States solicitor general. “What is the government’s objection to the witnesser testifying to his ain treatment?”

Justice Sonia Sotomayor pursued the point. “Are you going to fto him attest arsenic to what happened to him?” she asked.

Mr. Fletcher would not springiness a nonstop answer. “I’m not prepared to marque representations for the United States, particularly connected matters of nationalist security,” helium said.

But helium promised to springiness the tribunal a much considered response, presumably successful a letter, aft consulting with different authorities officials.

Justice Gorsuch seemed exasperated by the government’s position.

“This lawsuit has been litigated for years and each the mode up to the United States Supreme Court,” helium said, “and you haven’t considered whether that’s an off-ramp that the authorities could supply that would obviate the request for immoderate of this?”

Justice Brett M. Kavanaugh, participating successful the statement remotely aft investigating affirmative for the coronavirus past week, asked the past question, and it was an adjacent much cardinal one. It acrophobic the presumption of the 2001 instrumentality that approved going to warfare against those liable for the Sept. 11 violent attacks, the Authorization for Use of Military Force, oregon A.U.M.F.

“Is the United States inactive engaged successful hostilities for purposes of the A.U.M.F. against Al Qaeda and related violent organizations?” helium asked, seeking to get astatine whether the United States inactive has a ground for holding Abu Zubaydah.

Mr. Fletcher said yes. “That is the government’s position,” helium said, “that notwithstanding withdrawal of troops from Afghanistan, we proceed to beryllium engaged successful hostilities with Al Qaeda and truthful that detention nether instrumentality of warfare remains proper.”

Most of Wednesday’s statement was devoted to an exploration of whether the authorities could invoke the authorities secrets doctrine to barroom the C.I.A. contractors, James E. Mitchell and Bruce Jessen, from testifying astir the torture of Abu Zubaydah, whose existent sanction is Zayn al-Abidin Muhammad Husayn.

He was the archetypal captive held by the C.I.A. aft the Sept. 11 attacks to acquisition alleged enhanced interrogation techniques, which were based connected a database of suggestions drawn up for usage connected him by Dr. Mitchell and Dr. Jessen, some psychologists. It is undisputed that Abu Zubaydah was tortured astatine 1 oregon much achromatic sites, and the justices often utilized the connection “torture” to picture what helium had endured.

What to Know About the Supreme Court Term

Mr. Fletcher said Abu Zubaydah’s attraction was not a concealed but that its determination was. “Our nation’s covert quality partnerships beryllium connected our partners’ spot that we volition support those relationships confidential,” helium said.

That spot would beryllium broken, helium said, by confirming oregon denying the beingness of an alleged C.I.A. installation successful Poland.

That gave emergence to a semantic puzzle. Was it imaginable to let grounds from the contractors astir what had happened but not where?

Chief Justice John G. Roberts said it seemed that the contractors could speech astir galore things different than the determination of the events.

Mr. Fletcher disagreed. “You can’t instrumentality the determination retired of this proceeding due to the fact that the full constituent of the proceeding is to get grounds for a Polish investigation,” helium said.

Mr. Klein, a lawyer for Abu Zubaydah, said helium did not question grounds astir Poland, arsenic a authoritative determination already had the applicable information. Rather, Mr. Klein said, helium sought to supply the authoritative with accusation astir his client’s attraction by asking the contractors a bid of questions.

“What happened wrong Abu Zubaydah’s compartment betwixt December 2002 and September 2003?” helium asked, giving the dates during which his lawsuit was understood to beryllium held successful Poland. “How was Abu Zubaydah fed? What was his aesculapian condition? What was his compartment like? And, yes, was helium tortured?”

Justice Elena Kagan sketched retired what she suggested was a spread successful Mr. Klein’s argument.

The authorities has “conceded that Abu Zubaydah was tortured, but, due to the fact that of relations with allies with cooperating quality services, they won’t accidental wherever it happened,” she said. “And you’re present saying: I request to cognize erstwhile it happened, and to cognize erstwhile it happened, the authorities would fundamentally beryllium saying wherever it happened too.”

Abu Zubaydah, a Palestinian, was captured successful Pakistan successful March 2002 and was initially thought beryllium a high-level subordinate of Al Qaeda. A 2014 report from the Senate Select Committee connected Intelligence said “the C.I.A. aboriginal concluded that Abu Zubaydah was not a subordinate of Al Qaeda.”