Jurisprudence

Gorsuch and Sotomayor Want the U.S. to Stop Covering Up Post-9/11 Torture

In a remarkable dissent, the justices condemned the government for pretending that the “shame” of torture remains a state secret.

Gorsuch standing in a crowd smiling in a suit
Justice Neil Gorsuch. Pool/Getty Images

Abu Zubaydah isn’t asking for much. Although the U.S. government has never charged him with a crime, it has detained him for two decades on the belief that he is a terrorist. Before transferring Zubaydah to Guantanamo in 2006, the government tortured him at two different “black sites” in Thailand and Poland. Today, Polish prosecutors are investigating whether to bring charges against the perpetrators of these abuses, and they’ve asked Zubaydah to submit evidence. He now seeks depositions and documents that would confirm his inhumane treatment in Poland—information that’s already been disclosed by unofficial sources.

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On Thursday, the Supreme Court rejected his request in a disappointing but unsurprising 7–2 vote. Only Justice Neil Gorsuch, joined by Sonia Sotomayor, dissented in full, criticizing his colleagues for acquiescing to the cover-up of America’s crimes. This pairing is not as strange as it might seem. Both justices are often skeptical of state power, especially when the government tries to deprive someone of liberty without due process. Both, too, are wary of official efforts to conceal the workings of government from the public. In U.S. v. Zubaydah, these concerns drove Gorsuch and Sotomayor to reject executive privilege over information about Zubaydah’s torture. It is distressing that they wound up in dissent. But the court’s unusual split reveals a great deal about fractures within both the conservative and liberal blocs.

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Like so many of the United States’ worst human rights abuses in modern history, the illegal persecution of Zubaydah can be traced back to 9/11. In the wake of the attacks, intelligence officials concluded that Zubaydah was a senior al-Qaida lieutenant—an allegation that remains tenuous and disputed. He was captured in March 2002 and transferred to a black site in Thailand called Detention Site Green. (The facility was run by Gina Haspel, who later served as Donald Trump’s CIA director.) According to the Senate Torture Report, two CIA contractors, James Mitchell and John Jessen, then tortured Zubaydah. As Gorsuch described the experience:

They waterboarded Zubaydah at least 80 times, simulated live burials in coffins for hundreds of hours, and performed rectal exams designed to establish “total control over the detainee.” Six days into his ordeal, Zubaydah was sobbing, twitching, and hyperventilating. During one waterboarding session, Zubaydah became “completely unresponsive, with bubbles rising through his open, full mouth.” He became so compliant that he would prepare for waterboarding at the snap of a finger.

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Although Mitchell and Jessen concluded that Zubaydah possessed no useful information, the CIA directed them to continue torturing him for two weeks, just to be sure.

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In December 2002, the government transported Zubaydah to a Polish black site, Detention Site Blue. The Council of Europe confirmed the existence of this site in 2007; former Polish President Aleksander Kwasniewski confirmed it in 2012; and the European Court of Human Rights confirmed it in 2014, while also finding that Zubaydah was tortured there. Mitchell has published a book and appeared in a documentary detailing the torture of detainees at Detention Site Blue. Mitchell and Jessen have repeatedly testified about their work in Poland. Yet the U.S. government refuses to acknowledge the existence of this black site, let alone the horrors inflicted there. So when Zubaydah subpoenaed Mitchell and Jessen to aid Poland’s probe, the executive branch stepped in, declaring that such information was shielded by the “state secrets privilege.”

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This privilege stands for the principle that the executive has an inherent constitutional authority to withhold clandestine information that implicates national security or foreign affairs. No one suggests it is absolute, but no one seems to understand its limits, either. On Thursday, seven justices declared that the CIA had put forth legitimate reasons to conceal the information that Zubaydah seeks—chiefly, that it would hinder intelligence cooperation with other nations. They also held that Zubaydah had not convincingly proved that he needs the subpoenaed materials to help Poland’s investigation. So they threw out the whole case, declaring that, whatever the precise contours of the privilege, it clearly applies here.

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But the majority split badly on its rationale. Justice Stephen Breyer, joined by John Roberts, Brett Kavanaugh, and Amy Coney Barrett—applied a fairly deferential test with some minimal scrutiny of the government’s claims. Justice Clarence Thomas, joined by Sam Alito, argued for a rubber stamp any time the president raises the state secrets privilege. Justice Elena Kagan agreed that the government should win this round, but argued that Zubaydah should have another chance to file a narrower request.

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It fell upon Gorsuch to clear away the analytical fog by explaining what’s really going on here: The government is not worried about alienating international allies; it is worried about humiliating itself, along with myriad current and former officials, by confessing to its torture program. That concern, however, is not sufficient grounds for the privilege. As Gorsuch noted, the president shares power over foreign affairs with Congress, and Congress may authorize the judiciary to hear cases involving international relations. Here, Congress did just that, passing a law that lets federal courts order discovery to aid foreign proceedings, “including criminal investigations conducted before formal accusation.” Poland’s probe fits the bill perfectly. And so, Gorsuch wrote, the Constitution requires the courts to apply “independent judgment” and uphold “the ancient right to every man’s evidence.”

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There is another principle just beneath this analysis: the notion that, as Gorsuch put it, “there comes a point where we should not be ignorant as judges of what we know to be true as citizens.” Everyone knows that “the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and avoid (or at least delay) further embarrassment for past misdeeds.” He continued:

The facts are hard to face. We know already that our government treated Zubaydah brutally—more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls “rectal rehydration.” Further evidence along the same lines may lie in the government’s vaults. But as embarrassing as these facts may be, there is no state secret here. This Court’s duty is to the rule of law and the search for truth. We should not let shame obscure our vision.

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Obviously, Gorsuch’s standard is far less deferential than the majority’s, reflecting a profound suspicion of unchecked state power. It is unfortunate that the justice applies this suspicion inconsistently, shrugging at restrictions on bodily autonomy, voting rights, and immigration. In fairness, though, he has also often sided with criminal defendants in important cases. Gorsuch and Sotomayor have repeatedly teamed up to demand stricter enforcement of constitutional protections for the accused, including the right to a jury trial, the right to confront a witness, and the right against unreasonable searches.

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The two also foreshadowed their dissent in Zubaydah last November when they dissented from the court’s refusal to take up a case involving the Foreign Intelligence Surveillance Court. This court, in Gorsuch’s words, “​​evaluates extensive surveillance programs that carry profound implications for Americans’ privacy and their rights to speak and associate freely.” Yet its proceedings and decisions are kept secret. The ACLU alleged that this concealment violates the First Amendment right of public access to government proceedings. Gorsuch’s dissent—joined solely by Sotomayor—highlighted the executive’s long history of ignoring “legal limitations on its surveillance activities,” using secrecy to obscure unlawful spying.

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“This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” he wrote. “If these matters are not worthy of our time, what is?”

It’s fascinating to see how these two justices’ civil libertarianism sets them apart from each wing of the court. In style and substance, Gorsuch’s opinion in Zubaydah could not be more different from Thomas’, even though the two justices are frequently in agreement. While Gorsuch began with a focus on the detainee’s horrific torture, Thomas fixated on the accusation against him. “Abu Zubaydah is a terrorist,” Thomas announced—an allegation unproven in the courts, where Zubaydah hasn’t even been charged, let alone indicted and convicted. Thomas’ law-and-order, tough-on-terror posture contrasts sharply with Gorsuch’s evident disgust with the CIA and its enablers. Breyer’s opinion similarly illustrates an irreconcilable disagreement with Sotomayor over the appropriate level of deference to grant the government. It harks back to their sharp split in Utah v. Strieff, a 2016 decision in which Breyer cast the decisive vote to allow evidence produced by an illegal search. Sotomayor’s impassioned and celebrated dissent highlighted systemic police violence against racial minorities, accusing Breyer and the conservatives of dismissing their plight.

None of these distinctions matters to Zubaydah or the 38 other men currently held at Guantanamo. The Supreme Court has never followed through on its promise to extend real rights to these detainees. Zubaydah is just the latest in a long line of injustices inflicted on the forever war’s permanent prisoners. At least this time, two justices did not feign ignorance of what we all know to be true.

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