October 4, 2021
CONTACTS: Colleen Kelly (646) 408-5676; Terry Rockefeller (617) 460-4992;
Steven S. Sparling counsel of record (212) 715-7736
On Wednesday, October 6, the Supreme Court will hear oral arguments in United States of America v. Zayn al-Abidin Muhammad Husayn, aka Abu Zubaydah. September 11th Families for Peaceful Tomorrows, an organization of 9/11 family members advocating for effective non-violent response to terrorism, has submitted an amicus brief in support of the Respondents – Abu Zubaydah.
The narrow question to be answered by the Supreme Court is whether or not courts have the ability to separate classified from non-classified evidence in order to allow a case to proceed. The amicus brief highlights those instances when 9/11 family members directly observed efforts to suppress non-privileged and even declassified information at the 9/11 military commission, and have come to appreciate the critical gatekeeping role judges must play to prevent abuses of classification.
The broader issues in Husayn involve overuse of the state secrets privilege, and unquestioned reliance on government agencies to accurately classify information to protect valid national security concerns. The Supreme Court has the opportunity to affirm Abu Zubaydah’s right to receive non-privileged information about his treatment, and declaring that a district court can indeed separate privileged from non-privileged information. This would be consistent with the separation of powers enshrined in our Constitution and a step toward reclaiming appropriate judicial oversight of actions by the executive branch.
“For over nine years, the 9/11 military commissions have stalled, mostly because of the over-classification of discovery material concerning the torture of the five men accused of planning the 9/11 attacks. Too often it seems this is not a matter of protecting national security, but about preventing national embarrassment,” said Leila Murphy, who is a member of Peaceful Tomorrows and has personally attended pre-trial hearings onsite at Guantánamo.
September 11th Families for Peaceful Tomorrows supports all efforts towards greater transparency and declassification of information related to the planning, execution, and response to the September 11th attacks, and places this support squarely within a much larger set of concerns about the over-classification of information that has prevented accountability for the crimes of 9/11 for almost 20 years. The members of 911 Families for Peaceful Tomorrows, which herald from across the country and several nations, hold that secrecy, over-classification, and choices incongruous with professed American ideals have far often served to shield misconduct rather than ensure national security. Over-classification undermines the rule of law and ultimately threatens our democracy.
Adele Welty, mother of firefighter Timothy Welty killed on 9/11, sums the brief up this way – “The arc of the moral universe has been twisted and bent over the last twenty years, with justice sadly eluding both the families of the 9/11 dead and the accused, who were, like Mr. Zubaydah, tortured at government black sites. In the interest of justice so long denied, we implore the government to separate properly classified information from unclassified, and release all relevant documents.”
September 11th Families for Peaceful Tomorrows’ amicus brief is HERE.