November 20, 2022

Abu Zubaydah Makes Trips to the Top US Court

Abu Zubaydah, a Saudi national and alleged terrorist who was captured in 2002, has been granted permission to challenge the legality of his detention without charge before the US Supreme Court. The case will be an important test for state secrecy and international law on torture.

Zubaydah is believed to have been a senior member of the Al-Qaeda terrorist network. CIA operatives waterboarded him 83 times during his 432 days in secret prisons around the world, and he lost an eye under torture by US agents. In 2007, the Bush administration decided that Zubaydah had little intelligence value and moved him to the Guantánamo detention centre. Zubaydah was never charged with a crime, and in 2009 the government quietly dropped plans to try him before a special military commission.

Zubaydah’s petition focuses on evidence in the case that is so-called classified or top secret which cannot be disclosed to the petitioner, his counsel or the courts.

The Obama administration says such evidence should not be disclosed because it would harm national security and that holding a trial in which such evidence could be admitted against Zubaydah would present an unacceptable risk of harmful disclosures.

Zubaydah’s lawyers counter If the Government is permitted to assert a fact is classified without providing any indication of the harm that would result from disclosure, then it has created a monster. This nebulous standard for the invocation of state secrets requires this Court to act as an unquestioning gopher in carrying out the Executive’s wishes.

The case raises issues of whether foreign nationals held outside the United States can bring habeas corpus petitions to challenge the legality of their detention in US courts, and issue which has been particularly controversial with regard to detainees seized in Afghanistan in connection with the war there.

The Obama administration wants this question decided against Zubaydah, arguing in court papers that permitting foreign al-Qaeda operatives captured abroad during hostilities conducted overseas to file habeas petitions in federal court would create significant risks to sensitive national security information, and that if the Court were to accept Zubaydah’s argument, it would undo restrictions imposed by Congress on the rights of detainees at Guantánamo.

The administration also warns that giving Zubaydah a victory could open American officials to the threat of criminal prosecution overseas, and that such a decision could undermine US foreign relations.

The Obama administration acknowledges that US courts have ordered the release of classified information in terrorism related cases before but argues those decisions should not apply to Zubaydah’s case because his petition demands much more sensitive information than what has been handed over in other cases.

Lawyers for Zubaydah submitted a reply brief to the court Friday which reads in part The government seeks here not just to ensure that it can win this case, but that anyone who has been subjected to torture and rendition by the United States regardless of his citizenship or where he is held will be denied any remedy whatsoever for the torture that he has suffered.

The New York Times Editorial Board writes The White House is arguing against habeas corpus rights for a man who was tortured by the C.I.A. so it is no surprise that Justice Antonin Scalia would say of Mr. Zubaydah’s case, That sounds like what we have today.

A federal appeals court revived a constitutional challenge to the FISA Amendments Act of 2008, which authorizes the government’s warrantless surveillance program and allows for the interception of Americans’ international communications.