First “War on Terror” Torture Victim Abu Zubaydah Denied Release from Guantánamo

1.11.16

Abu Zubaydah at Guantanamo, in a photo included in the classified military files released by WikiLeaks in 2011. The eye patch covers his lost eye, removed in US custody.Please support my work! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo for the next three months.

 

On October 27, it was announced that Abu Zubaydah, the supposed “high-value detainee” for whom the US’s post-9/11 torture program was initiated, had his ongoing imprisonment recommended by a Periodic Review Board, a parole-type process involving representatives of the Departments of State, Defense, Justice and Homeland Security, as well as the office of the Director of National Intelligence and the Office of the Joint Chiefs of Staff. Zubaydah’s review took place on August 23 (as I reported here), and the decision was taken on September 22, but, for some reason, it was not made public for five weeks.

The PRBs began in November 2013, and have reviewed the cases of 64 men, who were previously recommended for ongoing imprisonment without charge or trial, on the basis that they were allegedly “too dangerous to release” (41 of the 64) or for men initially recommended for trials, until the legitimacy of the military commission trial system was seriously shaken by a court ruling on October 2012, and by subsequent rulings (the remaining 23). To date, 62 decisions have been taken, with 34 men being approved for release, while 28 others have had their ongoing imprisonment without charge or trial upheld. For further information, see my definitive Periodic Review Board list on the Close Guantánamo website.

In their Final Determination approving Abu Zubaydah’s ongoing imprisonment, the board members, having determined, by consensus, that “continued law of war detention of the detainee remains necessary to protect against a continuing significant threat to the security of the United States,” described how they had “considered [his] past involvement in terrorist activities to include probably serving as one of Usama Bin Ladin’s [sic] most trusted facilitators and his admitted abilities as a long-term facilitator and fundraiser for extremist causes, regardless of his claim that he was not a formal member of al-Qa’ida.”

There’s a use of the word “probably” in that cumbersome sentence that ought to set alarms bells ringing about the truth of the board’s claims — and for good reason. Although Zubaydah, a Saudi-born Palestinian whose real name is Zayn al-Abidin Muhammad Husayn, was touted as a significant figure in al-Qaeda at the time of his capture, he was actually the facilitator for a training camp that was not aligned with al-Qaeda, and by 2010 the US government had officially walked back from its claims in a court submission that I wrote about at the time, in my article, Abu Zubaydah: Tortured for Nothing. For further background, also see my 2009 article, Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives.

The board members also “noted [Abu Zubaydah’s] responses to the Board which minimized his relationship with al-Qa’ida and contradicted statements he previously made, such as ‘We and the sheikh (Usama Bin Ladin) are one. We have been working together for almost 10 years, but we were hoping to keep this work secret … hidden. We were forced to make ourselves known because of what took place in Afghanistan and thereafter.’”

This quote comes from a video of an interview with Zubaydah, made by militants, probably after 9/11 and before his capture in March 2002, which, though conceivably true, should perhaps be more accurately regarded as an example of Zubaydah trying to make himself sound more important than he was.

The board members also “considered [Abu Zubaydah’s] susceptibility to recruitment by extremists due to his continued feeling of an obligation to defend and support oppressed Muslims,” and also noted that they “received no information regarding whether there are any potential receiving countries that could sufficiently mitigate his threat,” and that they “look[ed] forward to such information being presented to future reviews.”

I can’t help but find it disappointing that a “continued feeling of an obligation to defend and support oppressed Muslims” is regarded as sufficient reason for someone to continue to be held indefinitely without charge or trial — especially as, at the time of his torture in 2002, another reason was given that strikes me as much more compelling from the US government’s point of view; namely, that CIA interrogators specifically sought “reasonable assurances” from their superiors that, if he survived his torture, he would “remain in isolation and incommunicado for the remainder of his life.”

More genuinely problematical is what would happen to Zubaydah if the US authorities ever decided to go against the CIA interrogators’ request and release him, because the Israeli government has never allowed Palestinians at Guantánamo to be repatriated, and Saudi Arabia, presumably, would not guarantee him fair treatment, meaning that a third country would have to be found that would be prepared to offer him a new home — something that his notoriety (as someone tainted by his torture, if nothing else) may well preclude.

That said, his lawyers have no expectations that he will ever be recommended for release. After the decision was announced, Brent Mickum, one of his attorneys, told Jason Leopold of Vice News, “We always expected that it would always come down exactly as it has. We never believed we had a chance.”

Like all the prisoners whose ongoing imprisonment has been approved by the Periodic Review Boards, Abu Zubaydah will be eligible for a file review in six months’ time. This is a purely administrative process, although his lawyers can submit new information if they think it will prove useful. After three years, he will be eligible for another full review, at which he will have another opportunity to make his case to the board members by video-conference, although a full review can take place sooner if the board members receive sufficiently persuasive information to convince them that it would be worthwhile.

Whether it is worthwhile or not, in the cases of “high-value detainees” like Abu Zubaydah, remains to be seen. It is certainly reassuring, for a sense of justice, that six men recommended for prosecution by the last review process seven years ago have ended up being recommended for release by the PRBs, but in the cases of the “high-value detainees” the door is still firmly shut, and it should be asked whether this is because of the dangers these men still pose, or because of an institutional refusal to consider releasing any of them under any circumstances.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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12 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, looking at the predictable news that Abu Zubaydah, for whom the Bush administration’s post-9/11 torture program was conceived, has had his ongoing imprisonment without charge or trial at Guantanamo approved by a Periodic Review Board. Six years ago the US authorities walked back from claims that he was an al-Qaeda member with knowledge of the 9/11 attacks, but insinuations fill the review board’s decision to keep holding him, and I can’t help but recall the CIA interrogators who, while torturing him in 2002, sought confirmation from their superiors that, if he survived his torture, he would “remain in isolation and incommunicado for the remainder of his life.”

  2. Andy Worthington says...

    Just updated – my definitive Periodic Review Board list on the Close Guantanamo website: http://www.closeguantanamo.org/Periodic-Review-Boards

  3. Andy Worthington says...

    When my friend Jan Strain shared this, she wrote:

    The latest from Andy Worthington. For those who don’t know the story, Abu Zubaydah was the human guinea pig for the US Mengele style treatment.

  4. Andy Worthington says...

    Thanks for sharing, Jan. That’s a good description of the key role Zubaydah played in the US’s post-9/11 descent into horror.

  5. arcticredriver says...

    Thanks Andy!

    You made the excellent point that “…CIA interrogators specifically sought ‘reasonable assurances’ from their superiors that, if he survived his torture, he would ‘remain in isolation and incommunicado for the remainder of his life.'”

    And multiple Presiding Officers (ie judges) at the military commissions have explained that no evidence about the nature of the torture the suspects endured would be allowed — “for national security reasons”

    We saw, about two years ago, the audio feed in the court room was suddenly cut, and neither the judge or his official security officer, the two people officially authorized to cut the feed had cut it. The judge swore he would get to the bottom of who cut the audio. I read, in the JTF-GTMO weekly newspaper, The Wire, considerable bragging of how super-hi-tech that court-room was. There were pictures of the geeks who installed it looking proud as punch standing next to the screens.

    What no one knew at the time is that the electronic elements of the court room had been installed with secret kill switches for secret CIA auditors.

    I believe that most US officials have accepted the CIA narrative about whether testimony of the details of US torture genuinely damages US national security.

    Personally, I believe US national security, and public safety, would be considerably enhanced if US torturers, and their superiors, including Bush, Cheney, Rumsfeld, all faced war crime charges. I think if you and I were able to question those who say making those details public damages public safety, and press them, on details they would make claims like:

    How would publishing the details of US torture damage national security? Well, first, subjecting the CIA to scrutiny, shining a light on their activities, would be bad for CIA morale! Those guys are patriots, and they don’t deserve public criticism, because they meant well.”

    I don’t think any other war criminals are allowed the “I meant well” defence.

    I think continuing to keep the torture program in the dark continues to severely damage public safety, because the torture program continues to squander vast resources. Allowing the torturers, and their apologists, to cover their butts, by maintaining that the torture program ever produced a lick of useful information, has meant we have continued to squander enormous resources on wild goose chases.

    I think some of those arguing for continued secrecy over the details of the US torture program are arguing:

    “Okay, those techniques may have been proscribed, NOW. But we should still keep the details secret, the operational lessons we learned about how to use these torture techniques, because conditions may change, again, to the point where our political masters quietly re-authorize the techniques. And, when that point comes, a failure to keep the details secret will have robbed our future torture subjects of the ability to try to come up with counter-torture techniques.

    I think those who claim making the details of the US torture program public would damage public safety and national security would make claims like:

    Publishing the details of US torture damage would damage national security by eroding morale, on the home front. To “win” we need the American people to believe that our side are the good guys, and we are above terrible disrespect for human rights, like torturing someone who was merely suspected of being acquainted to a genuine suspected terrorist — even though our detention facilities were like the Stanford experiments, where volunteer guards very rapidly started engaging in gross human rights violations.

    I think the American people, the public in all the western nations, deserve to know when US torturers committed gross human rights violations, in their name, particularly when it was done frivolously, particularly when it was done merely to confirm what an innocent guy had volunteered about his acquaintances, before he was tortured.

    I think you and I agree that someone argued, at the PRB, that prohibiting publication of the details of torture of the suspects at the military commissions would become pointless, if Abu Zubaydah was released, and was able to testify about his torture.

    However, we know from Zeidan’s CSRT testimony, that interrogators had already bragged all about Abu Zubaydah’s torture.

    The Wire has published an OPSEC column — “operational security”. It advises the GIs to not plug their ipods into their work computers, to not fall for phishing schemes. It also advises them not to talk about secrets, except at work, with their colleagues, who are also authorized to know those particular secrets.

    So all the considerable efforts the military commissions are expending to prevent the details of torture being made public were blown away by the junior interrogators who felt it was more important to act big, than to preserve this “operational security”.

    I know I have said this before, but, from Zeidan’s testimony, we know junior interrogators at Guantanamo, and their captives, they bragged to, knew the CIA had recorded Abu Zubaydah’s torture — when the CIA was withholding knowledge of the existence of those recordings from the congressional oversight committees. Zeidan testified that, although he wasn’t shown the recordings themselves, other captives were shown images of Abu Zubaydah, “with the marks of torture on him”

  6. Andy Worthington says...

    Thanks, arcticredriver. Good to hear from you, as always. And how many years now have we engaged in these regular exchanges? Did we know then that the road to justice would be so slow?
    As you know, I’m sure, I agree that accountability is necessary to prevent the same mistakes from taking place again, and I’m sure there are people within the CIA who want to keep the door open for revisiting the torture program should circumstances be perceived to have changed. That said, I wonder whether most of the cheerleaders are not more generally to be found in Congress and the right-wing media.
    I do, however, think it’s clear that the CIA continues to be shielded, as its crimes seem to be the ones that continue to be most aggressively hidden – or efforts are made to continue to hide them.
    The problem, of course, is that the cat has been quite considerably out of the bag since the Senate torture report was published; or rather, the redacted executive summary of the report. Nevertheless, even what we have is extremely powerful; namely, official condemnation of the program spelled out explicitly. The summary is extraordinarily damning of the CIA’s wrongdoing – with the agency revealed as exceeding even the limits illegally set by Yoo and Bybee, for example, and regularly lying to Congress and the executive about the efficacy of the torture program, and I think this continues to eat away at the CIA’s defences.
    We might also wonder to what extent Obama and his advisors side with the CIA, and how much they might have been cowed, or intimidated, and might resent that pressure. I’m not saying we’re making much progress, but I do think that we continue to crawl very slowly towards some kind of accountability, which remains necessary.

  7. Andy Worthington says...

    Natalia R Scott wrote:

    It’s just incredible

  8. Andy Worthington says...

    Predictable in the context of the ongoing denial of justice, Natalia, but yes, incredible in terms of the values the US claims to uphold. Good to hear from you!

  9. Andy Worthington says...

    Natalia R Scott wrote:

    Thank you, Andy.
    I’m always here, reading your articles. Incredible that they have the power to abuse like that and to determine who is a forever prisoner. Do you think it’s only to make an example?

  10. Andy Worthington says...

    I think, Natalia, that the best way of looking at it is that the US government is still obsessed with hiding the CIA’s “high-value detainees,” because of what was done to them – although that gets more and more difficult to justify if they’re not able to put these people on trial. For KSM etc., the reality is that they’re in pre-trial hearings that may go on forever, but at least there’s a process, however broken.For someone like Abu Zubaydah, I think it’s going to be hard for them to justify holding him forever without charge or trial, until he dies.

  11. Thomas says...

    Was Zubaydah guilty of anything, do you think?

  12. Andy Worthington says...

    That’s such a great question, Thomas – one generally ignored in all the discussions over the years.
    Abu Zubaydah was the facilitator of an independent military training camp that, in some cases, trained individuals who went on to plot or undertake terrorist activities in other countries, so at some level that means he’s not “innocent.”
    But as to whether he can – or should – be held liable, I’m not convinced that the US has much of a case. I think the individual plots would need looking into, and then an analysis made of who trained these people and who had responsibility. On this basis, I think Abu Zubaydah might have been found culpable at some level, but instead, of course, he was tortured on the basis of mistaken intelligence; one might even say that he was tortured for no purpose except sadism, because it was actually well-known in intelligence circles that Zubaydah wasn’t an al-Qaeda bigwig.
    Back in 2010, when the US government officially dropped its claims that he was part of al-Qaeda and had any involvement with 9/11, a new narrative emerged – of Zubaydah as the leader of an al-Qaeda-affiliated militia – but we haven’t heard anything more about that, and I’ve suspected all along that it was actually a non-starter.
    Instead, if Zubaydah were to be charged with anything, it would have to be along the lines of the charges Noor Uthman Muhammed admitted to in his plea deal in February 2011, when he pleaded guilty to providing material support for terrorism, and conspiracy to provide material support for terrorism. He received a 14-year sentence, reduced to 34 months for time served, and was freed in Sudan in December 2013. However, in January 2015, “the convening authority for military commissions disapproved the findings and sentence, and dismissed the charges in the case of United States v. Noor Uthman Muhammed,” because, “Subsequent to his commission proceedings, decisions by the D.C. Circuit Court of Appeals in separate commissions cases established that it was legal error to try the offense of providing material support for terrorism before a military commission. The decisions of the D.C. Circuit are binding on commissions cases and the convening authority’s action to disapprove the findings and sentence in Muhammed’s case is required in the interests of justice and under the rule of law.”
    See: http://www.defense.gov/News/News-Releases/News-Release-View/Article/605346/findings-and-sentence-disapproved-in-us-v-noor-uthman-muhammed
    And some commentary of mine here: http://www.andyworthington.co.uk/2011/02/16/hiding-horrific-tales-of-torture-why-the-us-government-reached-a-plea-deal-with-guantanamo-prisoner-noor-uthman-muhammed/
    I think, in a just world, Zubaydah could have been charged with material support and conspiracy, but the correct venue for those charges is in federal court, and the administration still shows no willingness to pursue that route, with the possibility being, therefore, that Zubaydah will continue to be held without charge for the rest of his life – a rather disgraceful outcome, as I’m sure you agree.
    Just to confirm: material support for terrorism has been thoroughly discredited as a war crime charge in the military commissions, but conspiracy is still being argued about, as the Bahlul case demonstrates, although it’s really become a legal swamp in which non-lawyers, I find, struggle to understand everything that is going on. I wrote about the latest developments here: http://www.andyworthington.co.uk/2016/10/29/in-contentious-split-decision-appeals-court-upholds-guantanamo-prisoner-ali-hamza-al-bahluls-conspiracy-conviction/
    In theory, I think, if conspiracy survives the legal challenges, it could lead to further Guantanamo-related trials, but it seems unlikely to me, as the entire system has a serious problem with legitimacy regarding events that took place before 9/11 (i.e. before the “war on terror” began), on top of its ongoing problems with accurately describing post-9/11 war crimes – and let’s face it, a lay person can understand quite easily that conspiracy is not a war crime, whereas killing people can be described as a war crime, if it is not, instead, a crime (and I have to say that I continue to cling to the rather beleaguered notion that terrorism is actually a crime, and not war).

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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