United States Court of Appeals for the Ninth Circuit has recognised enhanced interrogation techniques, intended to break down the resistance of the suspect, amounts to torture.
The court reversed the district court's order quashing a subpoena sought by Abu Zubaydah, who is currently held at the U.S. detention facility in Guantanamo Bay Naval Base in Cuba.
District court had quashed subpoenas against two US officials, James Elmer Mitchell and John Jessen, by applying state secrets privilege.
Abu Zubaydah had filed an application seeking some documents from the US officials which could assist him in his case against the Polish authorities for custodial torture. The documents were intended to be used as an evidence to show the variety of techniques used to torture him inside the Polish prisons.
Zubaydah was captured from Pakistan in 2002 and was quickly marked as a high-level officer of Al-Qaeda. However, a 2014 report by the Senate Select Committee on Intelligence Study on the CIA's detention and interrogation program later revealed this characterization to be erroneous.
The court ascertained the factual matrix of the case through numerous sources and used the observations made by the Senate Select Committee to term 'enhanced' or 'novel' interrogation techniques as torture.
The court highlighted that:
'They worked on "novel interrogation methods" intended to break down Abu Zubaydah Resistance, including the use of insects—to take advantage of his entomophobia—and mock burial. The details of Abu Zubaydah's treatment during this period are uncontroverted: he was persistently and repeatedly waterboarded; he spent hundreds of hours in a "confinement box," described as coffin-sized; he was subjected to various combinations of interrogation techniques including "walling,5 attention grasps, slapping, facial hold, stress positions, cramped confinement, white noise and sleep deprivation"; his food intake was manipulated to minimize the potential of vomiting during waterboarding.'
The court went on to hold that the district court erred in not distinguishing information that attracted state secrets privilege and the information that did not. The court relied upon the judgment passed by the Supreme Court in Ellsberg v. Mitchell which had held that:
'to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary, it is essential that the courts continue critically to examine instances of its invocation'.
The court also noted that the fact that the CIA operated in Poland and possibly collaborated with Polish individuals over Abu Zubaydah's detention is not a secret that would harm national security.
Click Here To Download Judgment