The justices condemned the government for pretending that the “shame” of torture remains a state secret.
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.
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.
