- The Washington Times - Wednesday, October 20, 2021

The Biden administration is allowing a Guantanamo Bay detainee to provide testimony in a criminal case in Poland about his treatment by CIA interrogators at a black site allegedly in that country in what legal scholars say is an unusual move.

Abu Zubaydah, an ally of Osama bin Laden, was captured in Pakistan in 2002 and kept at a CIA detention facility abroad where he was repeatedly waterboarded, placed in tight spaces and deprived of sleep.

He and his lawyer filed a criminal case in Poland over his treatment by two former CIA contractors. Polish officials sought to get information from the U.S. government, which declined to turn over any details, citing national security concerns.

Zubaydah and his lawyer sought discovery against the former contractors in a federal case, prompting the government to intervene and assert its “state secrets privilege.” 

They wanted to use the information from the CIA contractors in their criminal complaint in Poland.

The U.S. Circuit Court of Appeals for the 9th Circuit sided with Zubaydah, rejecting the government‘s claims of potential harm to national security.

The Trump administration had asked the justices to review the case, and the Justice Department under President Biden continued to fight against the compelled discovery, arguing that the 9th Circuit got it wrong.

But during oral arguments on Oct. 6, Supreme Court Justice Stephen G. Breyer and others quizzed the government about why Zubaydah couldn’t answer questions from Polish investigators.

In a rare reversal, the Biden Justice Department submitted a filing after the oral arguments, saying it would allow Zubaydah to provide a declaration about his treatment at the CIA facility abroad — which can be redacted by the feds after a national security review.

“The Department of Defense has informed this Office that under the circumstances presented here it would allow Abu Zubaydah, upon his request, to use such a process to send a declaration that could be transmitted to Polish prosecutors. Like other communications from similarly situated detainees, such a declaration would be subject to a security review,” Acting Solicitor General Brian H. Fletcher wrote last week in a letter to the high court.

Josh Blackman, a professor at South Texas College of Law, said the move “is very, very rare.”

“I can’t remember the last time the government changed positions in a national security case based on questions from the bench. Now, the Court will likely remand the issue to the lower court to consider the government‘s new position. And the Justices can avoid ruling on this difficult question of state secret privilege,” Mr. Blackman said.

Lawyers for Zubaydah say he was tortured to the point he was on the brink of death, and was not a top leader of Al-Qaeda as the government alleged.

“The Polish prosecutor has invited Abu Zubaydah to submit evidence in the investigation, which is Abu Zubaydah‘s right under Polish law,” they argued in court papers. 

Joe Margulies, who is representing Zubaydah, said they are considering how to respond to the Justice Department’s change in position.

“We are still evaluating the government‘s letter and deciding how to respond,” Mr. Margulies said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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