Lawyer: Guantanamo case should be put on hold at high court

A lawyer for a Guantanamo Bay detainee says the Supreme Court should wait to decide a case involving his client until it’s clear what the Biden administration will let the man say about his torture abroad by the CIA.

The lawyer for Abu Zubaydah told the Supreme Court in a letter Monday that a case involving his client argued at the high court earlier this month should be put on hold for the time being. An agreement by the government to let Zubaydah provide information could mean the Supreme Court doesn’t need to issue a ruling on when the government can shield information by saying it’s a state secret.

Zubaydah was captured in Pakistan in 2002 and thought to be a high-ranking member of al-Qaida, the terrorist group that carried out the Sept. 11, 2001, attacks on New York and Washington. He was tortured while being held at so-called CIA black sites abroad before being transferred to Guantanamo Bay in 2006.

According to a Senate report, among other things Zubaydah was waterboarded more than 80 times and spent over 11 days in a coffin-size confinement box.

It’s been widely reported that Zubaydah was held at black sites in Thailand and Poland, but the U.S. government has not confirmed that. Polish officials, meanwhile, are investigating his treatment there. As part of that investigation, Zubaydah wants the testimony of two former CIA contractors who developed the CIA’s interrogation program.

The Biden administration, like the Trump administration before it, has opposed the questioning, arguing that confirming where Zubaydah was held could damage national security. That’s even as the two former contractors have testified publicly on other occasions.

At arguments in the case earlier this month, Justice Neil Gorsuch asked if the government would allow Zubaydah, rather than the contractors, to provide the information to Polish officials about his treatment. Zubaydah’s lawyers had said the government was preventing him from doing so.

The Biden administration’s top Supreme Court lawyer, acting Solicitor General Brian H. Fletcher, said he’d get back to the justices. In a letter filed a little over a week ago the administration said it would let Zubaydah provide information to Polish officials.

Any declaration written for Polish officials would still be subject to a “security review,” the government said, meaning it could be redacted. The government noted that a court case in the United States involving Zubaydah already includes a public declaration from him with redactions describing his treatment in CIA custody.

Zubaydah’s lawyer David F. Klein, for his part, sounded a skeptical note in his own letter to the court Monday. He wrote it’s “theoretically possible the Government’s new position will lead to a declaration” that can help Polish officials. But he said that when Guantanamo prisoners “have attempted in the past to describe their torture to the outside world … the Government has sometimes redacted virtually every word.”

Klein said it will take “some time” to learn whether a statement from Zubaydah would be treated similarly. He said lawyers would need to meet with Zubaydah, prepare a declaration and have it go through the redaction process. He urged the court to set a “reasonable deadline” for that review to be complete. When it is, he said, “the parties would return to the Court and address the impact of the declaration, if any, on the issues before the Court.”

The government claims Zubaydah was “an associate and longtime terrorist ally of Osama bin Laden.” But Zubaydah’s lawyers say the CIA was mistaken in believing he was a high-ranking member of al-Qaida.

The Biden administration has said it will seek to close the Guantanamo Bay detention facility.