Is It a ‘State Secret’ If Everyone Knows It?

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The Supreme Court is set to consider whether something that most everyone knows can still be a “state secret” the government cannot be compelled to reveal, a decision centered around a request by Guantánamo Bay terrorism suspect Abu Zubaida for more information about his CIA-sponsored torture which the government says would threaten national security by confirming widespread reports that he was tortured at a secret detention site in Poland, reports the Washington Post. Zubaida, once a prized capture whose treatment after the Sept. 11, 2001, terrorist attacks has been extensively documented.

The government has invoked the “state secrets” privilege to oppose his efforts for additional information about foreign intelligence officials who partnered with the CIA in detention facilities abroad. Zubaida and his attorney have asked for more disclosure to aid a criminal investigation in Poland, and to question two CIA contractors, James Mitchell and John “Bruce” Jessen, about the interrogations. A district judge dismissed the case, but the U.S. Court of Appeals for the 9th Circuit said the judge had not done enough work to disentangle the privileged information from what could be released publicly, especially since so much already is known about Abu Zubaida. Both the Trump and Biden administrations have said it will damage the country’s intelligence operations and its relationships with cooperating countries if the government is forced to disclose information it has promised to keep secret.

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