On June 26, President Joe Biden issued a powerful statement to mark the occasion of the International Day in Support of Victims of Torture. He “reaffirmed the United States’ unequivocal ban on torture and opposition to all forms of inhumane treatment,” saying that “torture goes against everything we stand for as a nation.” It is ineffective, illegal, helps terrorist recruitment, and “compromises our moral standing in the world.” Biden “pledge[d] the full efforts of the United States to eradicate torture in all its forms” and listed measures he was taking to eliminate this “stain on our moral conscience” and “end such inhumane practice for good.”
Stirring words. And yet: this week, Joe Biden’s solicitor general, Brian Fletcher, was in the U.S. Supreme Court arguing against the disclosure of information about the United States’ own record of torturing people. The Biden administration continued a Trump administration effort to prevent ex-CIA contractors from providing testimony about the torture of a man named Abu Zubaydah, who is still being held at Guantánamo Bay and was waterboarded dozens of times at a CIA black site in Poland in 2002. What the U.S. did to Zubaydah is horrifying. From one of his legal briefs:
Abu Zubaydah was held in various CIA “black sites” in foreign countries, where he was subjected to a relentless regime of “enhanced interrogations.” On 83 different occasions in a single month of 2002, he was strapped to an inclined board with his head lower than his feet while CIA contractors poured water up his nose and down his throat, bringing him within sight of death. He was handcuffed and repeatedly slammed into walls, and suspended naked from hooks in the ceiling for hours at a time. He was forced to remain awake for eleven consecutive days, and doused again and again with cold water when he collapsed into sleep. He was forced into a tall, narrow box the size of a coffin, and crammed into another box that would nearly fit under a chair, where he was left for hours. He was subjected to a particularly grotesque humiliation described by the CIA as “rectal rehydration.”
The CIA justified all this barbarism on the grounds that Zubaydah was supposedly one of the top officials in Al Qaeda. This turned out to be completely false.
Because some other countries actually do take torture seriously, Zubaydah has managed to get heard in the European Court of Human Rights, and there is an ongoing investigation by the Polish government into what happened, because it occurred on Polish soil. Zubaydah himself is prohibited from testifying, because the U.S. government has decided that letting him speak might be awkward and make this country look bad. As Zubaydah’s brief says, he “cannot offer his own testimony, as the victim of a crime normally would, because the U.S. Government forbids it, having decided nineteen years ago that he ‘should remain incommunicado for the remainder of his life’ to prevent facts about the ‘psychological pressure techniques’ (torture) inflicted on him from coming to light.” (He has produced harrowing drawings depicting what was done to him.)
To get around the prohibition on Zubaydah himself giving evidence, his legal team subpoenaed ex-CIA contractors who admitted to having knowledge of what was done. But the Trump administration, and now the Biden administration, fought hard to prevent these contractors from testifying.
The case itself is absurd, a fact that came out in the Supreme Court oral arguments. The U.S. government is asserting that it would harm “national security” for the witnesses to talk about the torture. Of course, there is no actual plausible argument for this. Not only did these events occur nearly 20 years ago, but the facts about the Polish black site are already well-known. The government does not in fact contend that a particular “secret” will be leaked, but rather that it would be harmful to have official confirmation by the ex-contractors of what is already known. This is such a silly position that the government can’t justify it on its merits, so it has to instead argue that the CIA director is entitled to be deferred to on what is or is not a sufficiently compelling national security interest to justify prohibiting this kind of testimony. In other words, even if the justification is absurd, it is not the role of the courts to scrutinize absurd justifications.
In the Supreme Court this week, Elena Kagan pointed out to Biden’s lawyer that fighting to preserve the critically important “secrecy” of something we all know happened is silly: “at a certain point, it becomes a little bit farcical,” she said. “I mean if everybody knows what you’re asserting privilege on, what exactly does this privilege?” In fact, it’s quite obvious that the Biden administration is not actually trying to keep some particular harm from being done to the United States (and remember that torturing people and offering no accountability is actually likely to worsen risks to the U.S.). The fact of the matter is simple: the CIA does not like to be second-guessed. It does not want courts up in its business. It wants absolute impunity, and it wants judgments about what “national security” requires to be the CIA’s alone to make. The Biden administration has no desire to challenge the CIA and is happy to defend it in court.
But this is a disgrace. Biden has long made a big public show of his opposition to torture. Long before his latest proclamation, in 2014 he hailed the release of the report documenting U.S. torture activity as a “badge of honor.” (A weird phrase to use.) But we have here a very simple test of whether he actually means any of it. We know the CIA tortured Abu Zubaydah, that there are witnesses who can testify to it. We don’t know of any reason why it should be harmful for the witnesses to disclose this, and the government is unwilling to provide such a reason. This should be open and shut: how can any opponent of torture take the stand that the Biden administration is now making in court?
It’s also worth mentioning Zubaydah’s indefinite Guantánamo detention and silencing, which is itself indefensible. Justice Breyer was somewhat incredulous during the recent court proceedings that Zubaydah couldn’t offer his own testimony. The exchange between Breyer and Zubaydah’s lawyer is fascinating and worth reading:
Why doesn’t Mr. Zubaydah—he was there. Why doesn’t he say this is what happened? […]
Abu Zubaydah cannot testify.
Because he is being held incommunicado. He has been held in Guantánamo incommunicado.
Why? Why? Just out of—I mean, I’m not sure this is relevant, but, I mean, in Hamdi, we said you could hold people in Guantánamo. The words were: Active combat operations against Taliban fighters apparently are going on in Afghanistan. Well, they’re not anymore. So what’s the—why is he there?
That’s a question to put to the government. We don’t know the answer to that.
I mean, have you filed a habeas or something to get him out?
There’s been a habeas proceeding pending in D.C. for the last 14years. There’s been no action.
Well, how don’t they decide it? They don’t decide it?
I mean, you just let it sit there? All right. I guess this is not relevant. but I’m just curious about it.
A couple of features of this exchange make it noteworthy. First, we can see how in law, things that are highly relevant, in fact the most important things, can be treated as irrelevant sidenotes. At the core of this case is that Zubaydah is being held for the rest of his life despite never having been charged with or convicted of any crimes. It’s a horrifying violation of human rights that makes the law a complete joke. Of course, any Supreme Court that actually cared about the “rule of law” would have ordered Zubaydah released many years ago, because the entire point of having a criminal court process is supposedly to make sure that people only go to prison when they have done crimes. But here this fact is a mere curiosity, and since Zubaydah can’t actually get out, the legal issue that brings him to the Supreme Court is can he subpoena two contractors to testify in a Polish government investigation?
We can also see a glimpse here of how profoundly ignorant Supreme Court justices can be of the reality of the American legal system. I don’t think Breyer is feigning ignorance for the sake of exposing an injustice here. I think his surprise is genuine. I do not think he knows the restrictions placed on Guantánamo detainees’ speech or the flagrantly unconstitutional processes by which they are detained. He does not speak like a man who has actually investigated the basic facts of a legal system that he is charged with overseeing. He seems to be realizing on the spot that all of the flimsy legal justifications for indefinite detention (related to the ongoing war in Afghanistan) have long since evaporated and yet somehow, curiously, Zubaydah is still being held.
Justice Sotomayor asked the Biden administration’s lawyer whether Zubaydah would be permitted to testify. Naturally, the solicitor general replied: “I’m not prepared to make representations for the United States, especially on matters of national security.” We will see whether they choose to change the existing policy, but for now, the Biden administration’s policy here is indefensible and makes his public statements in support of torture victims a cruel joke. If we believe in due process, we cannot detain unconvicted, legally innocent people for the rest of their lives. If we oppose torture, the first thing to do is not torture people, and to make sure that if people have been tortured by this country’s agents, there is real accountability. Instead, Biden is repeating the Obama approach of publicly speaking the language of human rights while offering full support to agencies, like the CIA, that routinely violate those rights.