Never-Ending Injustice: State Secrets and the Torture of Abu Zubaydah

An illustration featuring Abu Zubaydah by Brigid Barrett from an article in Wired in July 2013. The photo used is from the classified military files from Guantánamo that were released by WikiLeaks in 2011.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

On Wednesday, the Supreme Court heard arguments in the case of the notorious torture victim and Guantánamo prisoner Abu Zubaydah, for whom the US’s post-9/11 torture program was invented. Zubaydah, whose real name is Zayn al-Abidin Muhammad Husayn, was held and tortured in CIA “black sites” for four and a half years, after his capture in a house raid in Pakistan in March 2002, until his eventual transfer to Guantánamo with 13 other so-called “high-value detainees” in September 2006, and he has been held there without charge or trial ever since.

Wednesday’s hearing was the result of an appeal by the government against a ground-breaking ruling two years ago, by the Ninth Circuit Court of Appeals, in which the judges openly declared that Abu Zubaydah had been tortured. It was, as Abu Zubaydah’s attorney, Cornell University law professor Joseph Margulies, explained, “the first time an appellate court” had “come right out and said that the enhanced interrogation techniques were torture.”

While this was significant, it wasn’t the main topic of the case, which involved the state secrets privilege, whereby government officials can argue that sensitive information whose disclosure, they claim, might endanger national security, must not be disclosed in a court. Abu Zubaydah’s lawyers were — and still are — seeking permission for the architects of the torture program, the contractors James Mitchell and Bruce Jessen, to be questioned about the details of his torture while he was held in a “black site” in Poland, in 2002-03, after his initial torture in a “black site” in Thailand in 2002, for use in the Polish government’s ongoing investigation.

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Fighting Guantánamo in the Courts Under President Biden

Three of the Guantánamo prisoners who are currently seeking their release from the prison through the US courts. From L to R: Khalid Qassim and Abdulsalam al-Hela, both Yemenis, and Asadullah Haroon Gul, an Afghan.

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I wrote the following article (as “The Ongoing Legal Struggles to Secure Justice for the Guantánamo Prisoners Under President Biden”) for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

In the nineteen unforgivably long years since the “war on terror” prison at Guantánamo Bay was first established, lawyers have worked tirelessly to challenge and overturn the Bush administration’s outrageous contention that everyone who ended up at Guantánamo was an “enemy combatant” with no rights whatsoever, who could be held indefinitely without charge or trial.

There have been victories along the way, but the sad truth is that Guantánamo’s fundamental lawlessness remains intact to this day. Since 2010, only one prisoner has been freed because of the actions of lawyers and the US courts (a Sudanese man whose mental health issues persuaded the Justice Department, in this one instance only, not to challenge his habeas corpus petition), and, as the four years of Donald Trump’s presidency showed, if the president doesn’t want anyone released from Guantánamo, no legal avenue exists to compel him to do otherwise.

The lawyers’ great legal victories for the Guantánamo prisoners came in the Supreme Court in what now seems to be the distant, long-lost past. In June 2004, in Rasul v. Bush, the Supreme Court ruled that the prisoners had habeas corpus rights; in other words, the right to have the evidence against them objectively assessed by a judge. That ruling allowed lawyers into the prison to begin to represent the men held, breaking the veil of secrecy that had allowed abusive conditions to thrive, but Congress then intervened to block the habeas legislation, and it was not until June 2008 that the Supreme Court, revisiting Guantánamo, ruled in Boumediene v. Bush that Congress had acted unconstitutionally, and affirmed that the prisoners had constitutionally guaranteed habeas rights.

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The New York Times’ Linda Greenhouse on Guantánamo: “Born in Fear and Sustained Through Political Cynicism and Public Indifference”

Guards in a watchtower at Guantánamo Bay.

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration. If you can help, please click on the button below to donate via PayPal.





 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Two weeks ago, the 18 year-long struggle by lawyers, NGOs and all decent people to bring justice to the men held at Guantánamo reached a new low point in the court of appeals (the D.C. Circuit Court) in Washington, D.C., as I explained at the time in an article entitled, Trump-Appointed Appeals Court Judge Rules That Guantánamo Prisoners Don’t Have Due Process Rights.

The judge in question, Judge Neomi Rao, appointed by Donald Trump last year, is an enthusiastic supporter of the opposition, by various judges in the court, to the landmark Supreme Court case Boumediene v. Bush, decided in June 2008, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners.

That ruling led to the only time in Guantánamo’s history when the law has successfully applied at the prison. From 2008 until 2010, 38 prisoners had their habeas corpus petitions granted by District Court judges, and the majority of those men were released.

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US Supreme Court Supports Lifelong Imprisonment Without Charge or Trial at Guantánamo; Only Justice Breyer Dissents

Guantánamo prisoner and Yemeni citizen Moath al-Alwi, in a photo from Guantánamo included in his classified military file, dated March 2008, and released by WikiLeaks in April 2011, after being leaked by Chelsea Manning. Al-Alwi has been held without charge or trial for over 17 years, but last week had his request for a Supreme Court review of his case turned down.

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration. If you can help, please click on the button below to donate via PayPal.





 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Remember when the US courts used to guarantee the rights of any individual not to be imprisoned indefinitely without charge or trial, in defiance of all accepted domestic and international laws and treaties?

Yes, so do we, but unfortunately all that changed nearly 15 years ago, when the Supreme Court, in a case called Hamdi v. Rumsfeld, dealing with the sole US citizen held at Guantánamo, Yasser Hamdi, born in Baton Rouge, Louisiana in 1980, but living in Saudi Arabia since he was a child, ruled that foreign prisoners held at Guantánamo could be — yes, you guessed it — imprisoned indefinitely without charge or trial.

Hamdi, seized in Afghanistan in December 2001, had been held at Guantánamo until the US authorities realized that he was a US citizen, at which point he was moved to a military brig on the mainland, where he became one of three US citizens or residents held as “enemy combatants” and subjected to torture (the others being US citizen Jose Padilla, and legal resident Ali al-Marri).

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Remembering Judge John J. Gibbons, The Man Who Brought Habeas Corpus to Guantánamo

Judge John J. Gibbons, who has died aged 94, and prisoners at Guantanamo on the prison's opening day, January 11, 2002. Judge Gibbons successfully argued for their habeas corpus rights before the Supreme Court in 2004.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration. If you can help, please click on the button below to donate via PayPal.




 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Here at “Close Guantánamo,” we are saddened to hear of the death, at the age of 94, of Judge John J. Gibbons, who was one of the signatories to our initial mission statement when we first launched “Close Guantánamo” on January 11, 2012, the 10th anniversary of the opening of the prison. Appointed in 1970 to the United States Court of Appeals for the Third Circuit, in Philadelphia, by Richard Nixon, he served on that court for 20 years, the last three as Chief Judge. While at the court, he authored more than 800 opinions.

When he left the bench, Judge Gibbons became a Professor of Law at Seton Hall University School of Law in New Jersey, and also rejoined the firm he had been part of prior to becoming a judge, which become known as Gibbons, Del Deo, Dolan, Griffinger & Vecchione in 1997, and then Gibbons P.C. in 2007.

Although he was a Republican, and, as Chris Hedges noted in a New York Times profile in February 2004, “his politics tend[ed] to veer to the conservative,” he was also “at once an insider and an outsider,” something of a “gadfly” at his largely corporate firm, where he was “one of the state’s leading crusaders against the death penalty.” He had, he told Hedges, “always been outraged by the use of the death penalty,” which was why his firm “filed ‘friend of the court’ briefs in almost every death penalty case in New Jersey.” Read the rest of this entry »

Karen Greenberg on Brett Kavanaugh, and How Guantánamo is Poisoning US Law

Brett Kavanaugh consumed with anger during his Senate Judiciary Committee hearing prior to his confirmation as a Supreme Court justice, and a photo of Guantanamo on the day it opened, January 11, 2002.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.




 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

In the 21 months since Donald Trump became president, it has become increasingly difficult for those of us who care about the necessity of closing the prison at Guantánamo Bay to keep this burning injustice in the public eye. 

Journalists who care have tried hard to find ways to not let Guantánamo be forgotten, and one of those journalists is Karen Greenberg, director of the Center on National Security at Fordham Law, and the author of The Least Worst Place: Guantánamo’s First 100 Days, published in 2010.

Karen and I first got to know each other in the George W. Bush years, when my book The Guantánamo Files was published. She screened ‘Outside the Law: Stories from Guantánamo,’ the documentary film I co-directed, in New York in 2009, and has been a panelist on several occasions in the panel discussions Tom Wilner and I organize every January, on the anniversary of the opening of Guantánamo, at the New America think-tank in Washington, D.C. Read the rest of this entry »

On Brexit, the British Public Finally Turns on Would-Be Tyrant Theresa May

A collage of British prime Minister Theresa May and the flags of the UK and the EU.Please support my work as a freelance investigative journalist and commentator.

 

Last week was a particularly disastrous week for Parliament, when a horribly large majority of MPs voted to let Theresa May, the Prime Minister, do what she wants regarding Britain’s exit from the EU — and what she wants, as she has made clear, is as “hard” a Brexit as possible — one in which, in order to exercise some spurious control over immigration, we are forced to abandon the single market and the customs union, which will be insanely damaging to our economy.

The MPs’ unprovoked capitulation, by 494 votes to 122, in the vote allowing May to trigger Article 50, which launches our departure from the EU, came despite three-quarters of MPs believing that we should stay in the EU, and despite the narrow victory in last June’s referendum, which, crucially, was only advisory, although everyone in a position of power and authority has since treated it as though it was somehow legally binding.

The MPs’ capitulation was also disgraceful because, following the referendum, a handful of brave individuals engaged in a court battle to prevent Theresa May from behaving like a tyrant, and undertaking our departure from the EU without consulting Parliament. Both the High Court and the Supreme Court pointed out that sovereignty in the UK resides in Parliament, and not just in the hands of the Prime Minister, and that Parliament would have to be consulted. Read the rest of this entry »

On Brexit, MPs Give Away Sovereignty, Vote to Allow Theresa May to Do Whatever She Wants

A cartoon (provenance unknown) depicting the dangers of the UK leaving the EU.Please support my work as a freelance investigative journalist and commentator.

 

What a disgrace the majority of MPs have shown themselves to be, as they have voted, by 494 votes to 122, to pass the government’s derisory little bill allowing Theresa May to “notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.”

Although numerous amendments were tabled — seven by Labour, others by other parties — all failed to be passed. On Tuesday, an amendment by Labour’s Chris Leslie, stating that “the government should not be allowed to agree a Brexit deal until it has been passed by both Houses of Parliament,” was defeated by 326 votes to 293 — a majority of 33 — including seven Tory rebels: as well as serial Brexit rebel Ken Clarke, the rebels were Heidi Allen, Bob Neill, Claire Perry, Antoinette Sandbach, Anna Soubry and Andrew Tyrie.

And last night, before the final vote, there was another blow — this one not to the hard-won sovereignty of Parliament, given away by MPs as though it was nothing, but to the three million EU nationals who live and work in the UK, when the amendment by Labour’s Harriet Harman, in her capacity as the chair of the Joint Committee on Human Rights, guaranteeing EU nationals the right to stay in the UK, was defeated by 332 votes to 290 — a majority of 42. On this amendment, there were three Tory rebels — Ken Clarke, Tania Mathias and Andrew Tyrie. Read the rest of this entry »

On Brexit, What a Pathetic, Leaderless Country We Have Become

A Brexit illustration for the Guardian by Nate Kitch.Please support my work as a freelance investigative journalist and commentator.

 

In America and around the world, the apocalyptic nightmare of Donald Trump and his administration is provoking widespread protest. In the UK, meanwhile, as deluded nationalists led by the Prime Minister Theresa May forge ahead with pushing for our departure from the EU as a result of last June’s narrow victory for the Leave campaign in an advisory referendum in which 27.9% of the electorate couldn’t even be bothered to vote, almost no one is standing up for the 16.1 million people — myself included — who voted for Remain.

It is as if, at a general election, the party that wins gets the right to prevent the opposition from criticising them at all, and also gets to completely ignore everything that those who voted for the opposition believes, when it contradicts what the winning party thinks.

How is this possible? The wretched referendum, whose outcome was not legally binding, was so blunt and inadequate a tool that it failed to specify what leaving the EU would entail, or, indeed, whether that would be acceptable to voters. And yet, under Theresa May and her three Brexiteers — David Davis, Boris Johnson and Liam Fox — no questions about the form Brexit might take — let alone whether it might not be a good idea to accept the result of an advisory referendum that might end up being economically suicidal — was allowed. Read the rest of this entry »

YES! The Supreme Court Tells Would-Be Tyrant Theresa May That Act of Parliament is Required to Trigger Article 50 and Leave EU; Now MPs Must Fight to Scrap Brexit

Stop Brexit: a placard from the March for Europe in London on September 3, 2016 (Photo: AFP).Please support my work as a freelance investigative journalist and commentator.

 

Great news from the grown-ups in the room today — the Supreme Court — as the highest judges in the land have confirmed what the High Court ruled nearly three months ago: that the government cannot trigger Article 50 — the mechanism for leaving the EU — without an authorising act of parliament, as Lord Neuberger, the President of the Supreme Court, stated in a summary of the court’s decision, delivered by a majority of 8-3.

As the Guardian described it, Lord Neuberger “said the government generally has a prerogative power to change treaties, but it cannot do that if it will affect people’s rights.” As the summary of the court’s ruling stated, “The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation.”

The judges added, “The Supreme Court holds that an Act of Parliament is required to authorise ministers to give notice of the decision of the UK to withdraw from the European Union.” See the full ruling here.

From the beginning, when Theresa May was the only minister left standing after the bloodbath that followed the EU referendum’s outcome, it was outrageous that a decision that was supposed to be about the importance of restoring sovereignty to the UK was hijacked when May, who had nominally been a Remain supporter, instead revealed herself as a would-be tyrant who was intent on ignoring the fact that sovereignty in the UK resides with Parliament and not with the Prime Minister or her cabinet. Read the rest of this entry »

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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