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Supreme Court pushes government after it sought to block testimony in torture case

ARI SHAPIRO, HOST:

At the Supreme Court today, an unexpectedly tense argument over CIA torture at black sites after the 9/11 attacks. The question before the court was whether the government - first under Obama, then Trump, and now the Biden administration - could block testimony from the government contractors who supervised the torture. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: At the center of the case is Abu Zubaydah, a Guantanamo detainee who's never been charged with a crime, though he's been in U.S. custody for 20 years. He was the first prisoner held by the CIA to undergo extensive torture, reportedly at black sites in Thailand and Poland, before being transferred to Guantanamo in 2006. A Senate Intelligence Committee report subsequently documented that he was subjected to years of horrific treatment, including being waterboarded 83 times in just 20 days. Though eventually it turned out that he was not the top al-Qaida operative that the CIA thought he was.

Now Zubaydah has subpoenaed the government contractors who supervised his questioning. They've testified twice before in other litigation, and one wrote a book about it. But this time, the government is seeking to block their testimony on grounds of national security. The problem today was that this national security secret is no secret at all. In fact, the justices and lawyers mentioned Poland 103 times during the 70-minute argument in connection with torture. And many of the justices seem torn between deferring to the executive branch to protect state secrets on the one hand and on the other aiding an absurd fiction.

Acting Solicitor General Brian Fletcher rejected the idea of using code words to conceal the location of the black sites. After all, he noted, Zubaydah's subpoenas are aimed at providing further information for a Polish prosecutor who's reopened an inquiry into the matter. Lawyer David Klein, representing Zubaydah, initially had a harder time. Here, for instance, is an exchange with Justice Barrett.

(SOUNDBITE OF ARCHIVED RECORDING)

AMY CONEY BARRETT: The fact that he was tortured by these contractors in Poland - that's not a state secret.

DAVID KLEIN: That's correct, because the very fact of torture - the so-called enhanced interrogation techniques - are not a secret. They are declassified by the government. The fact that the site is in Poland and that he was taken there was found by a court of law and also acknowledged by Poland's president, who said that he approved it. So no, we don't think that those facts are state secrets.

TOTENBERG: Chief Justice Roberts didn't seem to buy that argument.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: But you don't have the United States government acknowledging that. And the United States government says this is critically important because our friends, allies, intelligence sources around the world have to believe that we keep our word. And our word was, this is secret.

TOTENBERG: Justice Breyer interjected to ask why lawyer Klein didn't just have his client testify. After all, he knows what happened to him.

(SOUNDBITE OF ARCHIVED RECORDING)

KLEIN: Abu Zubaydah cannot testify. He is...

STEPHEN BREYER: Why not?

KLEIN: Because he is being held incommunicado.

TOTENBERG: The argument took a dramatic turn when Klein sat down and the government's Fletcher rose to make a rebuttal argument. But he got just five words out of his mouth when Justice Gorsuch launched a grenade.

(SOUNDBITE OF ARCHIVED RECORDING)

NEIL GORSUCH: Why not make the witness available? What is the government's objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?

BRIAN FLETCHER: By the witness, you mean Abu Zubaydah? Right. He is not being held incommunicado. He is subject to the same restrictions that apply to other similar detainees at Guantanamo. He's able to communicate with his lawyers about...

GORSUCH: That's not really answering my question. Will the government make the petitioner available to testify on this subject?

TOTENBERG: But again and again, Fletcher demurred, refusing to commit to the government making Zubaydah available to testify. Finally, an exasperated Gorsuch did the best he could to stick it to Fletcher.

(SOUNDBITE OF ARCHIVED RECORDING)

GORSUCH: Will the government at least commit to answering - informing this court whether it will or will not allow the petitioner to testify as to his treatment during these dates?

TOTENBERG: Fletcher said only that he understood the question and the government would respond. It's hard to imagine the court won't ultimately side with the government in this case. But by the end of today's argument, it didn't look like a slam dunk.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.