At a Glance
Amicus briefs were filed on August 20, 2021. Argument will be heard before the U.S. Supreme Court on October 6, 2021.
Prof. Hannah R. Garry, USC Law School
CCR (CCR brief), Maher Arar, Mourad Benchellali, Murat Kurnaz, Zahra Ahmed Mohammed, Nizar Sassi (USC brief)
Abu Zubaydah is a victim of some of the most egregious torture perpetrated against detainees in the post-9/11 era. Held in CIA prisons located in various third countries from 2002 to 2006, he was the first detainee to be waterboarded. He is currently held at Guantánamo and has never been charged with any crime. Through his attorneys he filed a criminal complaint in Poland seeking to hold Polish officials accountable for their complicity in his torture, and invoked a process in U.S. federal court to get information from two psychologists who designed the CIA torture program, James Mitchell and Bruce Jessen. The government intervened and sought to block their efforts, invoking the state secrets privilege, and the district court granted the government’s motion. The Court of Appeals for the Ninth Circuit reversed, and the Supreme Court agreed to review the case on the government’s request.
The Center for Constitutional Rights filed one of nineteen amicus briefs in the case in support of Abu Zubaydah. CCR’s amicus draws on our experience of representing numerous detainees abused in Guantánamo, Abu Ghraib, and the secret network of CIA prisons, as well as victims of “extraordinary rendition” to torture and targeted killings. The brief documents from this experience “many examples whereby government claims to secrecy and attempts to foreclose judicial review on grounds of national security have served to cover up incompetence, abuse, and violations of law and which have otherwise not produced the harms to national security the government reflexively recites.” It concludes that “[t]he tailored judicial review authorized by the Ninth Circuit in this case—like the judicial review made available in other cases implicating national security described below—correctly preferences democratic accountability over executive fiat.”
Another amicus brief was submitted by four victims and surviving family member of a victim of the U.S. torture program, including CCR client Maher Arar and Murat Kurnaz.Coming from the unique perspective of men who endured profound physical and mental suffering at the hands of Americans or their proxies – including in Bashar al-Asa’ad’s Syria – the brief argues that the United States has an obligation under international law to prevent, punish and provide redress for torture, and that to invoke the state secrets privilege conflicts with these obligations, including its obligations as a signatory to the Convention Against Torture. The argument is three-part: (1) torture is a universally recognized jus cogens violation of international law; (2) the United States is obligated to prevent, punish and redress torture; (3) the right to remedy, established under international law, is a comprehensive reparative concept that includes restitution, compensation, rehabilitation, truth and guarantee of non-occurrence, which are vindicated in part through investigations. The US blocking of Mitchell & Jessen's depositions -- especially after it has spent nearly two decades denying justice domestically -- contradicts US obligations under international law, including to amici. The brief calls on the Supreme Court to affirm the Ninth Circuit decision to meet the U.S. obligations.