美国最高法院关于国家机密和残酷的中情局黑网站9·11事件后的审讯在周三突然发生了转折，三名法官要求拜登政府回答为什么原告——基地组织嫌疑人阿布·祖巴耶达——仍然被关押在军事监狱，没有受到指控关塔那摩湾古巴，尽管阿富汗战争已经结束。
“我不明白为什么14年后他还在那里，”一位明显被激怒的法官斯蒂芬·布雷耶说。
有争议的战时拘留被指控的恐怖主义战斗人员并不是案件的直接焦点，而是在布雷耶和尼尔·戈尔苏奇法官以及索尼娅·索托马约尔进行了一个多小时的口头辩论后提出的。
大法官们一直在纠结如何平衡两个问题:一是政府需要对祖巴耶达审讯的外国地点保密，以保护国家安全利益;二是被拘留者需要从两名前中情局承包商那里获得证词发生了什么当他被他们拘留的时候。
如美国参议院所述，祖巴耶达正在波兰法庭上对波兰官员提起诉讼，指控他们涉嫌参与了他在该国一个中央情报局的黑色场所受到的虐待报告并要求记录在案的证词。美国政府从未正式确认，也没有否认波兰存在一处遗址，并声称承包商的证词可能泄露机密。
戈尔苏奇法官建议，整个案件的一个“岔道”或解决方案可能是允许祖巴耶达为自己讲述他受到的待遇，尤其是因为许多细节已经在2014年参议院情报委员会的一份报告中解密。
2002年在巴基斯坦被捕的祖巴伊达水床83次，在棺材大小的禁闭箱里呆了11天，遭受了“围攻、注意力集中、掌掴、面部固定、压力姿势和睡眠剥夺”报告。
“为什么不让证人[祖巴伊达]出庭?政府有什么理由反对证人为自己的遭遇作证，并且不要求政府作出任何承认?”戈鲁奇询问了代表拜登政府的代理副检察长布莱恩·弗莱彻。
“我知道有各种各样的规则和保护令，”他继续说道，“我真的很希望得到一个直截了当的答案:政府会让请愿者(祖巴伊达)出庭作证，证明他在这些日子里受到的待遇吗?”
弗莱彻显然措手不及，他解释说，在未与国防部协商之前，他无法给出答案。他保证遵从法官的要求。根据拘留条件，祖巴耶达只能与其法律团队联系。
“好吧，天哪，”戈尔苏奇回答道，“这个案子已经诉讼了很多年，一直到美国最高法院，你还没有考虑过这是否是一个政府可以提供的例外?”
这次交流是一个非凡的时刻，让来自不同意识形态领域的法官走到了一起。
索托马约尔法官赞同戈尔苏奇的观点，他说，“我们想要一个明确的答案。你会允许他作证吗，是还是不是?”
布雷特·卡瓦诺法官因为上周新冠肺炎的一次诊断而几乎参与了这场争论，他试图向政府抛出一根救命稻草。"美国是否仍在AUMF领导下参与反对基地组织的敌对行动?"他问道。
弗莱彻回答说:“这是政府的立场，尽管从阿富汗撤军，但我们仍在与基地组织进行敌对行动，因此根据法律拘留仍然是适当的。
目前还不清楚他的拘留条件是否可以或会被修改，以允许他公开作证他在中央情报局拘留期间的待遇。
政府坚持认为，任何暗示波兰是中央情报局黑网站所在地的官方证词都将破坏我们盟友的信任，并损害未来的情报协议。
祖巴耶达说，他在波兰法庭上对案件的追查可能会受益于目击者对他遭遇的描述，尽管许多细节已经公开。“我想让事情真相大白，”他的律师大卫·克莱因说。
大多数法官似乎倾向于尊重政府对正式确认波兰为黑网站所在地的国家安全关切，但他们也对国家机密特权的笼统主张持怀疑态度，该特权阻止祖巴伊达在法庭上提供自己的账户。
预计大法官将在2022年6月底之前对此案做出裁决。
Supreme Court justices gripped by case of 9/11 detainee: 'We want a clear answer'
A U.S. Supreme Court case aboutstate secrets and brutal CIA black-siteinterrogations after 9/11 took an abrupt turn Wednesday when a trio of justices demanded answers from the Biden administration about why the plaintiff -- Al-Qaeda suspect Abu Zubaydah -- is still held without charges in a military prison atGuantanamo Bay, Cuba, even though the war in Afghanistan has concluded.
"I don't understand why he's still there after 14 years," said a clearly exasperated Justice Stephen Breyer.
The controversial wartime detention of alleged terrorist combatants was not the immediate focus of the case but was raised after more than an hour of oral arguments by Breyer and Justices Neil Gorsuch and Sonia Sotomayor.
The justices had all been wrestling with how to balance the government's need to keep secret the foreign location of Zubaydah's interrogation -- in an effort to protect national security interests -- and the detainee's need to obtain testimony from two former CIA contractors aboutwhat happenedwhen he was in their custody.
Zubaydah is pursuing a claim against Polish officials in Polish court for their alleged complicity in his harsh treatment at a CIA black site in the country, as outlined in a U.S. Senatereport, and wants on-the-record testimony about what happened there. The U.S. government has never formally confirmed, nor denied, the existence of a site in Poland and contends testimony from the contractors could compromise secrets.
Justice Gorsuch suggested one "off-ramp," or solution, to the entire case could be allowing Zubaydah to speak for himself about how he was treated, especially since many details have already been declassified in a 2014 Senate Intelligence Committee report.
Zubaydah, who was captured in Pakistan in 2002, waswaterboarded83 times, spent 11 days in a coffin-size confinement box and was subjected to “walling, attention grasps, slapping, facial holds, stress positions and sleep deprivation,” according thereport.
"Why not make the witness [Zubaydah] available? What is the government's objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?" Gorsuch asked acting Solicitor General Brian Fletcher, representing the Biden administration.
"I understand there are all sorts of rules and protective orders," he continued, "I'd just really appreciate a straight answer to this: will the government make Petitioner [Zubaydah] available to testify as to his treatment during these dates?"
Fletcher, apparently caught off guard, explained that he could not offer an answer without first consulting with the Defense Department. He pledged to comply with the justices' request. Under terms of his detention, Zubaydah is allowed to communicate only with his legal team.
"Well, gosh," replied Gorsuch, "this case has been litigated for years and all the way up to the United States Supreme Court, and you haven't considered whether that's an off-ramp that -- that the government could provide?"
The exchange was a remarkable moment that united justices from across the ideological spectrum.
Justice Sotomayor joined Gorsuch's argument, saying, "We want a clear answer. Are you going to permit him to testify, yes or no?"
Justice Brett Kavanaugh, who was participating virtually in the argument because of a COVID-19 diagnosis last week, attempted to throw the government a lifeline. "Is the US still engaged in hostilities under the AUMF against Al-Qaeda?" he asked.
"That is the government's position, that notwithstanding withdrawal of troops from Afghanistan, we continue to be engaged in hostilities with Al Qaeda and therefore that detention under law of order remains proper," Fletcher replied.
It is unclear whether the terms of his detention could or would be modified to allow him to testify publicly about his treatment in CIA custody.
The government insists any official testimony that implicates Poland as the location of a CIA black site would breach the trust of our allies and harm future intelligence agreements.
Zubaydah says his pursuit of a case in Polish court could benefit from an eyewitness account of what happened to him, even though many details are already in the public domain. "I want to shine a light on what happened," said his attorney David Klein.
A majority of the justices appeared inclined to show deference to the government's national security concerns about formally confirming Poland as a black site location, but they were also skeptical of a sweeping assertion of state secrets privilege that prevents Zubaydah from providing his own account in a court of law.
The justices are expected to hand down a decision in the case by the end of June 2022.
