by Jonah Levine
What You Can Do:
- Donate to the ACLU, who consistently files amicus briefs to support human rights issues at the Supreme Court (https://www.aclu.org/).
- Take a class with Professor Margulies, including Crime and Punishment.
Cornell University’s own Professor Joseph Margulies will be approaching the bench for the Supreme Court’s latest controversy, United States v. Zubaydah. The case concerns the CIA’s torture of Abu Zubaydah, a Palestinian man who was detained by the United States government in the aftermath of the September 11th terrorist attacks. After being captured in 2002, Zubaydah was transferred to “black sites” in Thailand and Poland and was later moved to Guantanamo Bay . Though the Bush administration originally insisted that he was the third-ranking official of Al-Qaeda, interrogators later uncovered that he had no information on the terrorist organization’s plans .
Margulies, a professor at Cornell’s Law School and Department of Government, has long been a critic of the security state. He has represented several individuals detained at Guantánamo bay before Zubaydah and has published two books on the security state following the events of 9/11. 
Throughout his detainment at “black sites,” Zubaydah was subject to the CIA’s enhanced interrogation techniques—a program in which suspects were waterboarded, placed in claustrophobic spaces, slammed against walls, and deprived of days of sleep in order to extract information . Margulies notes “the most aggressive stage was in 2002… That was the period when the waterboarding began. It lasted for 20 days, 24 hours a day.”
The case arose when a Polish investigation into the black sites requested United States federal information on Zubaydah’s case. The U.S. declined, citing national security concerns. Although the European Court for Human Rights ruled “beyond a reasonable doubt” that a black site in Poland existed and that Zubaydah was held there, the U.S. still treated this information as confidential . Arguing that revealing the existence or nonexistence of the Polish black sites would damage other countries’ trust in the United States’ capacity to keep national secrets, the U.S. refused to release information of Zubaydah’s case.
The case hinges on the strength of the “state secrets privilege,” a court doctrine that permits the government to withhold information requested by courts if such information poses a substantial threat to national security. The doctrine is supported primarily by the precedent U.S. v Reynolds, a 1953 case in which the Supreme Court allowed the Air Force to conceal sensitive information surrounding the fatal crash of an Air Force Bomber in Waycross Georgia. Oral arguments for U.S. v Zubaydah were held on October 6, 2021, and the justices expressed skepticism that the information the U.S. sought to conceal was really a secret. Speaking to Acting Solicitor General Brian Fletcher, who is representing the United States in the case, Justice Kagan commented “at a certain point, it becomes a little bit farcical, this idea of the assertion of a privilege, doesn’t it?… If everyone knows what you’re asserting privilege on… It’s not a state secret privilege anymore” . Evidence of the black sites is common knowledge at this point, so it is hardly likely that the U.S. would upset foreign actors by confirming it.
At the time of the hearing, the Biden] administration agreed with the Trump Administration’s view that Zubaydah’s information should be kept secret; they have since reversed course. A letter distributed by the Biden administration on October 17 supported Zubaydah’s right to inform Polish officials of his experience . Between the Court’s skeptical interrogation of the United States’ stance in oral arguments and the Biden Administration’s newfound support of Zubaydah, it appears that the Court may challenge the state secrets doctrine in the upcoming ruling. As the case proceeds, Margulies is committed to ensuring justice for his client. He says “there needs to be accounting. Torture must be known. You cannot allow torture to be done in secret and kept in secret” .