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The Supreme Court will decide if C.I.A. black sites are state secrets.


The Supreme Court agreed on Monday to decide whether the government can block a detainee at Guantánamo Bay from obtaining information from two former C.I.A. contractors involved in torturing him.

The U.S. government argued that releasing the information would expose state secrets.

The detainee, known as Abu Zubaydah, sought to subpoena the contractors, James E. Mitchell and Bruce Jessen, in connection with a Polish criminal investigation. The inquiry was prompted by a determination by the European Court of Human Rights that Mr. Zubaydah had been tortured in 2002 and 2003 at so-called black sites operated by the C.I.A., including one in Poland.

Mr. Zubaydah was the first prisoner held by the C.I.A. after the terrorist attacks on Sept. 11, 2001, to undergo so-called enhanced interrogation techniques, which were based on a list of suggestions drawn up for use on him by Dr. Mitchell and Dr. Jessen, both psychologists.

Dr. Mitchell has testified that he and Dr. Jessen, who had experience with an Air Force program that taught pilots how to resist torture, were hired by the C.I.A. to consult on the interrogation of Mr. Zubaydah. They were ultimately assigned to carry out the techniques on him in the summer of 2002.

A federal judge granted the government’s motion to block the subpoena, saying that “proceeding with discovery would present an unacceptable risk of disclosing state secrets.”

But a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that it might be possible to segregate information protected by the state secrets privilege, which bars disclosures that could endanger national security.

The full Ninth Circuit declined to rehear the panel’s decision over the dissents of 12 judges who said the ruling was riddled with “grave legal errors” and posed “a serious risk to our national security.”

The government, in briefs filed by both the Trump and Biden administrations, asked the Supreme Court to intervene, saying that “the identities of its foreign intelligence partners and the location of former C.I.A. detention facilities in their countries” could not be disclosed “without risking undue harm to the national security.”

The case could have consequences for the trial of the five men at Guantánamo who are accused of conspiring in the Sept. 11 attacks.

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