North Carolina has an important connection to the “state secrets” at the center of an October 6 US Supreme Court argument.

In this case, Guantanamo prisoner Abu Zubaydah seeks testimony from two former CIA contractors, James Mitchell and Bruce Jessen, on torture he suffered at a secret CIA prison in Poland. The contractors’ evidence would be used in an investigation by the Polish government.

Zubaydah was one of at least 49 men and women flown covertly by the Smithfield-based aviation firm Aero Contractors, as tallied by a non-governmental truth commission of which I am a member. According to international experts who testified before our panel, an Aero-operated jet transferred prisoners including Zubaydah in and out of the CIA’s Polish “black site.”

In the case before the Supreme Court, the US Department of Justice (DOJ) is claiming that state secrets would be jeopardized if Mitchell and Jessen gave evidence to the Polish investigators. This, despite the fact that Mitchell has published a book about his role in the CIA torture program, and both Zubaydah’s detention in Poland and his torture at the hands of the CIA have been widely reported by the media.

The U.S. government has a court-recognized privilege called the “state secrets privilege” which essentially functions as a trump card: throw it and the case is over and Federal government does not have to disclose. However, in an open and free society, citizens have a right to know what their government is doing — good or bad. Indefinite secret detention and torture are crimes under international and US law, and citizens of the US have a strong interest in knowing if our government may or may not be committing these crimes.

Having worked in the US intelligence community, I fully understand that sources and methods used by our national security assets should be protected. But covering up possible international crimes is not an area that should be kept secret in any democracy. Americans need to know this, and in fact many already do know about some of these activities through the press, investigations, and commissions. In reality, it is common knowledge and an “open secret.”

The North Carolina Commission of Inquiry on Torture is a non-governmental, non-partisan panel that studied North Carolina’s involvement in the CIA program in which the aforementioned Mitchell and Jessen were central. Our report “Torture Flights” concluded that our state’s public infrastructure was key to the program and state officials have a duty to acknowledge and investigate.

North Carolinians believe in the rule of law and common decency. They should be rightly concerned that their state was used and abused by a federal agency to perpetrate crimes such as kidnapping for the purpose of torture. It’s wrong and should be condemned.

The state secrets privilege is an important legal doctrine when used for legitimate purposes — but not for covering up possible domestic and international crimes.

Prof. David M. Crane (SES, ret.), who lives in western North Carolina, was Founding Chief Prosecutor of the Special Court for Sierra Leone. He is founder of the Global Accountability Network, which houses the Syrian, Yemeni, and Venezuelan Accountability Projects. He is also author of Every Living Thing: Facing Down Terrorists, Warlords, and Thugs in West Africa—A Story of Justice.

Suggested citation: David M. Crane, Torture Should Not Be a “State Secret”, JURIST – Academic Commentary, November 3, 2021, https://www.jurist.org/commentary/2021/11/david-crane-torture-not-state-secret/.

This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org