US supreme court to rule on whether CIA black sites are state secrets

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WASHINGTON (NYTIMES) – The Supreme Court agreed on Monday (April 26) to decide whether the government can block a detainee at Guantánamo Bay from obtaining information from two former CIA contractors involved in torturing him on the grounds that it would expose state secrets.

The detainee, known as Abu Zubaydah, sought to subpoena the contractors, James E. Mitchell and Bruce Jessen, in connection with a Polish criminal investigation. The inquiry was prompted by a determination by the European Court of Human Rights that Zubaydah had been tortured in 2002 and 2003 at so-called black sites operated by the CIA, including one in Poland.

Zubaydah was the first prisoner held by the CIA after the terrorist attacks on Sept 11, 2001, to undergo so-called enhanced interrogation techniques, which were based on a list of suggestions drawn up for use on him by Mitchell and Jessen, both psychologists.

Mitchell has testified that he and Jessen, who had experience with an Air Force programme that taught pilots how to resist torture, were hired by the CIA to consult on the interrogation of Zubaydah. They were ultimately assigned to carry out the techniques on him in the summer of 2002.

A federal judge granted the government’s motion to block the subpoena, saying that “proceeding with discovery would present an unacceptable risk of disclosing state secrets.”

But a divided three-judge panel of the US Court of Appeals for the 9th Circuit, in San Francisco, ruled that it might be possible to segregate information protected by the state secrets privilege, which bars disclosures that could endanger national security, from other materials.

The full 9th Circuit declined to rehear the panel’s decision, over the dissents of 12 judges who said the ruling was riddled with “grave legal errors” and posed “a serious risk to our national security.”

The government, in briefs filed by both the Trump and Biden administrations, asked the Supreme Court to intervene, saying that “the identities of its foreign intelligence partners and the location of former CIA detention facilities in their countries” could not be disclosed “without risking