•   
  •   
  •   

US Supreme Court wrestles with eroding secrecy around U.S. torture tactics

12:30  07 october  2021
12:30  07 october  2021 Source:   politico.com

Justice Alito Responds to ‘Annoying’ Critics of ‘Shadow Docket,’ Says There Is No ‘Dangerous Cabal’ Deciding Cases ‘in the Dead of Night’

  Justice Alito Responds to ‘Annoying’ Critics of ‘Shadow Docket,’ Says There Is No ‘Dangerous Cabal’ Deciding Cases ‘in the Dead of Night’ In an academically-toned speech at the University of Notre Dame's Kellogg Institute for International Studies, Supreme Court Justice Samuel Alito on Thursday hit back at critics of the court's so-called "shadow docket" — a term loosely applied to various high court procedures but mostly to the court's disposition of emergency applications. The post Justice Alito Responds to ‘Annoying’ Critics of ‘Shadow Docket,’ Says There Is No ‘Dangerous Cabal’ Deciding Cases ‘in the Dead of Night’ first appeared on Law & Crime.

The Supreme Court wrestled Wednesday with the role of U.S. courts in protecting the last remnants of secrecy around the increasingly well-known fact that the CIA tortured terrorism suspects almost two decades ago in the early years of the war on terror.

A 2005 photo shows a watch tower outside of Stare Kiejkuty, Poland, the site of an alleged former CIA black site. © Czarek Sokolowski/AP Photo A 2005 photo shows a watch tower outside of Stare Kiejkuty, Poland, the site of an alleged former CIA black site.

The case before the justices, involving the alleged torture of Al Qaeda operative and Guantanamo prisoner Abu Zubaydah while he was held in Poland in 2002 and 2003, presents fundamental questions about whether and when judges can override executive branch decisions on matters related to national security and so-called “state secrets.”

Supreme Court pivots to abortion, guns, and death penalty as public approval slides

  Supreme Court pivots to abortion, guns, and death penalty as public approval slides Facing a crisis of legitimacy, the U.S. Supreme Court begins a new term set to decide divisive cases on abortion, gun rights, the death penalty and religious freedom. © Tom Brenner/Reuters By the end of June 2022, the court's conservative majority has the potential to roll back 50 years of abortion rights precedent; declare a right to carry a handgun outside the home; bolster the death penalty; and, allow some American parents to use taxpayer funds for religious schools.

However, during more than an hour of oral arguments Wednesday morning, it became clear that many of the justices have little appetite for grappling with those questions in the Zubaydah case and instead are looking for ways to resolve it without squaring up to those choices.

While Zubaydah is pressing for testimony from former CIA contractors James Mitchell and John Jessen that could aid a Polish investigation into his treatment in that country, Justice Neil Gorsuch suggested he had happened upon what he viewed as a simpler answer: have Zubaydah himself testify about what happened to him during his detention in Poland.

“Why not make the witness available?” Gorsuch asked the attorney representing the U.S. government, Acting Solicitor General Brian Fletcher.

Abortion, guns top agenda for new Supreme Court term

  Abortion, guns top agenda for new Supreme Court term The court could also take up disputes over public funding for religious education and consideration of a student's race in college admissions.The court will also take up a dispute over public funding for religious education, and it could plunge back into the controversy over considering a student's race in college admissions.

Fletcher said Zubdaydah could testify through an affidavit or some other means, but the lawyer cautioned that his statements could be sanitized of classified information, which is the same basis the government is using to block the demand for Mitchell and Jessen’s testimony.

“We would allow him to communicate about this subject on the same terms” as other so-called high-value detainees at Guantanamo, Fletcher said, including the classification review.

That didn’t satisfy Gorsuch. “I’d really appreciate a straight answer to this,” the justice, a nominee of President Donald Trump, replied.

Fletcher said he didn’t have the authority to address such a potential compromise on the fly, a response that further irked Gorsuch.

“This case has been litigated for years, all the way to the U.S. Supreme Court and you have never considered whether that’s an off-ramp the government can provide that would obviate the need for any of this?” Gorsuch asked incredulously.

Supreme Court rejects appeal by D.C. residents for more representation

  Supreme Court rejects appeal by D.C. residents for more representation The Supreme Court on Monday advised a lower court to reconsider earlier decisions on the border wall and rejected an appeal from Washington, D.C. residents for voting rights in Congress.The high court on Monday directed lower courts to reconsider their previous rulings that froze funding for construction of a wall at the southern border.

The justice’s line of inquiry got an unusual endorsement from Justice Sonia Sotomayor, an appointee of President Barack Obama who is considered by many to be the current court’s most liberal justice. “We want a clear answer,” she insisted.

The tag-teaming prompted Justice Samuel Alito, nominated by President George W. Bush, to jump in to defend Fletcher by suggesting that the Justice Department lawyer wasn’t empowered to address potential testimony from Zubaydah. Fletcher ultimately agreed to advise the court by letter of the government’s stance.

Sotomayor also floated a technical dodge of her own for the case, suggesting that the U.S. government’s decision to turn down Poland’s formal request for legal assistance under a treaty definitively resolved the issue and foreclosed Zubaydah’s request.

Technicalities abounded in the case, as Zubaydah’s attorney David Klein insisted that his client wasn’t looking to force Mitchell and Jessen to specify that mistreatment of the prisoner happened in Poland but instead the dates of the alleged abuse. However, other information obtained by Polish prosecutors would have already established that Zubaydah was at a so-called black site in Poland at those times.

'Above the partisan divide'? Supreme Court begins heated new term amid slipping support

  'Above the partisan divide'? Supreme Court begins heated new term amid slipping support Criticism of the Supreme Court, particularly from the left, has prompted four justices to speak out publicly in recent days to defend the high court.With abortion, gun rights and religion featured prominently on the docket in coming weeks, the high court is diving into culture war controversies as several of the justices have fanned out in recent weeks to publicly defend against criticism on the left, sinking approval ratings and a bevy of proposed structural changes.

“The subtlety of all this is somehow escaping me,” Alito declared at one point.

“The where and the when are already known, but not the what,” said Klein. “We’re looking for eyewitness testimony….We want to shine a light on it.”

While much of the litigation in U.S. courts in the case has turned on whether the government can invoke the state secrets privilege to block any response to Poland, Klein said the publication of a Senate Intelligence Committee report in 2014 and testimony by the two psychologist contractors in military commission proceedings laid bare the CIA’s tactics. The Senate report detailed that Zubaydah had been waterboarded — subjected to a form of simulated drowning — 83 times.

Justice Elena Kagan, another Obama appointee, said to Fletcher that the government’s insistence on using the state secrets privilege to not confirm things that are common knowledge was becoming hard to swallow.

“At a certain point, it becomes a little bit farcical this assertion of privilege, doesn’t it?” she asked. “Maybe we should rename it.”

Klein said even debating the issue as one of “state secrets” was off the mark.

“We’re not talking about a secret anymore. We’re talking about a governmental wish not to assist this Polish investigation,” he said.

However, Fletcher argued that the courts should defer to executive branch officials, as long as they’ve taken account of public disclosures such as statements by officials in other countries. The Biden Justice Department attorney urged the justices to accede to former CIA Director Mike Pompeo’s judgment in Zubaydah’s case that effectively confirming Poland’s cooperating with the CIA black-site program would undermine the CIA’s ability to get allies to offer assistance in the future.

Supreme Court takes up secret CIA black sites in 9/11 detainee's case

  Supreme Court takes up secret CIA black sites in 9/11 detainee's case The Supreme Court will wrestle with government state secrets privilege in a case brought by the first Al-Qaeda suspect detained and interrogated at a CIA "black site." Abu Zubaydah, who was captured in Pakistan in 2002, was waterboarded 83 times, spent 11 days in a coffin-size confinement box and was subjected to “walling, attention grasps, slapping, facial holds, stress positions and sleep deprivation,” according to a declassified 2014 Senate Intelligence Committee report.

At one point, Chief Justice John Roberts suggested that if Mitchell and Jessen were ordered not to mention any places, they still might be able to shed light on exactly what happened to Zubaydah.

“It seems to me there may be a lot they could talk about that doesn’t have to do with the actual location at which events occurred,” he said.

The arguments in Zubaydah’s case also revealed something that could have consequences for other detainees and for war-powers debates in Congress: Justice Breyer has strong doubts about whether the U.S. has legal authority to hold the alleged Al Qaeda leader and the 38 other prisoners still at Guantanamo.

On at least two occasions, Breyer said he couldn’t fathom why Zubaydah was being held at Guantanamo even though the U.S. pulled its troops from Afghanistan in August.

“Why is he there?” Breyer asked. “I don’t understand why he’s still there after 14 years.”

Klein and Fletcher said Zubaydah has a habeas corpus petition pending in federal court in Washington, but no ruling has been issued.

At the tail end of the argument, Justice Brett Kavanaugh, a Trump nominee, chimed in, getting Fletcher to state the Biden administration’s position that the detention of Zubaydah and most of the others at Guantanamo is justified under Congress’s 2001 Authorization for Use of Military Force because the U.S. is still in active hostilities with Al Qaeda.

Biden's Supreme Court commission 'divided' on adding justices but warns of 'considerable' risk .
President Biden's commission to study the Supreme Court is working as polls show slipping support for the high court, particularly on the left.As had been expected, the 36-member panel steered clear of policy recommendations and instead offered arguments in support of and against "packing" the court beyond its current nine seats. The group also considered – but did not endorse or oppose – term limits, changes to the court's procedures and judicial ethics.

usr: 0
This is interesting!