Three of the nine justices pressed U.S. Acting Solicitor General Brian Fletcher on the subject as the court heard oral arguments in the government's bid to prevent two former CIA contractors from being questioned in a criminal investigation in Poland examining the treatment of detainee Abu Zubaydah.
"Why not make the witness available?" asked conservative Justice Neil Gorsuch, referring to Zubaydah. "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?" The government is appealing a lower court ruling that Central Intelligence Agency contractors James Elmer Mitchell and John Bruce Jessen could be subpoenaed under a U.S. law that lets federal courts enforce a request for testimony or other evidence for a foreign legal proceeding.
The justices have turned away multiple cases brought by Guantanamo detainees challenging their confinement. Zubaydah's own case has been pending in lower courts for 14 years. Conservative Chief Justice John Roberts appeared sympathetic to the government's position, noting that if the United States confirms facts that implicate Poland's government "that would be a breach of faith with our allies."
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