16 Years Since John Yoo and Jay Bybee’s “Torture Memos” Were Issued, Abu Zubaydah Remains in Guantánamo, Silenced and Alone

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I was on vacation recently when a terrible anniversary passed unnoticed by the mainstream media — the 16th anniversary of two official US government memos authorizing the use of torture, and specifically approving it for use on Abu Zubaydah, which were issued on August 1, 2002.

A Saudi-born Palestinian, Zubaydah — whose real name is Zayn al-Abidin Muhammad Husayn — was seized in a house raid in Faisalabad, Pakistan on March 28, 2002, and held and tortured in CIA “black sites” until, in September 2006, he was sent to Guantánamo, where he remains to this day, held largely incommunicado, and without being charged or put on trial. 

In a useful article for the generally dreadful Lawfare blog, whose existence normalizes the notion of indefinite imprisonment without charge or trial, one of his lawyers, Charles R. Church, recently wrote an article entitled, “What Politics and the Media Still Get Wrong About Abu Zubaydah,” in which he wrote, “Perhaps not since the French political scandal known as the Dreyfus Affair, at the turn of the 20th century, has there been such a concerted campaign to promulgate false information about a prisoner. In our client’s case, the motive was to gain permission to torture Abu Zubaydah and to provide a basis for holding him incommunicado and in isolation.”

This is no exaggeration. From the time of his capture, he was portrayed as a senior member of al-Qaeda, but this was never the case. George W. Bush was told this shortly after his capture, when, as Ron Suskind reported in his 2006 book The One Percent Doctrine, he rebuked CIA director George Tenet for telling him that Zubaydah’s significance had been exaggerated. Suskind wrote that Bush told Tenet at one of their daily briefings, “I said he was important. You’re not going to let me lose face on this, are you?” to which Tenet “dutifully” replied, “No sir, Mr. President.” 

As Church explains, as “the Senate intelligence committee’s groundbreaking torture report noted in 2014, the CIA conceded in 2006 that Abu Zubaydah “was not a member of Al Qaeda” (Page 410). Further, effective Jan. 24, 2018, Abu Zubaydah was delisted by the United Nations Security Council from its Islamic State and al-Qaeda Sanctions List, based on the recommendation of the U.N. ombudsperson, who also concluded that Abu Zubaydah was not a member of al-Qaeda (Case 78).”

The “torture memos,” whose 16th anniversary recently passed unremarked, were written by John Yoo, a law professor at the University of California in Berkeley, while he was working for the Office of Legal Counsel (OLC), an office of the Justice Department that provides legal advice to the executive branch, and signed by his boss, Jay S. Bybee, who was later rewarded by being made a judge on the 9th Circuit Court of Appeals.

Neither man has been held accountable for their actions, even though torture is a crime, and no devious reasoning like Yoo’s should be allowed to get around the absolute prohibition on its use. In January 2010, a four-year internal ethics investigation by the Justice Department concluded that Yoo and Bybee had been guilty of professional misconduct, which would have meant that they could face charges, but a DoJ fixer, David Margolis, was allowed to override those conclusions, insisting instead that they had merely exercised “poor judgment,” for which no punishment was warranted.

Over eight years since Yoo and Bybee escaped justice, Abu Zubaydah is no closer to escaping the injustice that has blighted his life for the last 16 years, even though he has achieved some measure of success outside the US in having his torturers held to account. Four years ago, the European Court of Human Rights delivered a powerful condemnation of the US torture program and Poland’s role in hosting a CIA “black site,” and ended up ordering the Polish government to pay €130,000 ($150,000) to Zubaydah, and €100,000 ($115,000) to Abd al-Rahim al-Nashiri, another victim of the torture program, who is also held at Guantánamo, but, unlike Zubaydah, is facing a trial.

And then, at the end of May this year, the ECHR delivered another powerful ruling, condemning Romania and Lithuania for hosting CIA “black sites” where Abu Zubaydah and Abd al-Rahim al-Nashiri were tortured, and ordering the government of Lithuania and Romania to pay €100,000 ($115,000) to each man.

In the wake of that ruling, Will Tomer, an enterprising journalist and commentator with the Toledo Blade, interviewed Zubaydah’s senior European attorney, Helen Duffy, the founder of the legal organization Human Rights in Practice, in a fascinating interview which I draw from below.

Tomer began by noting how Zubaydah “has not been permitted to plead his case for exoneration and freedom,” but how the ECHR ruling “achieved a measure of justice, albeit small.” He noted that the court ordered Lithuania to pay Zubaydah €100,000 in damages and also encouraged the Lithuanian government “to make further representations to the United States to remove or limit the effects of the violations of [Zubaydah’s] rights,” and stated, “That this judgment was won at all is impressive, given the stringent limitations placed upon Zubaydah’s lawyers by the U.S. government.”

As he proceeded to explain, “The U.S. Department of Justice maintains policies that have have made it nearly impossible to communicate with Zubaydah. Everything Zubaydah says, writes, or draws is automatically classified. He is not able to offer first-hand accounts to the ECHR.” 

Duffy explained how the Lithuanian judgment “was small, but [its] legal significance was great.” As she said, “It provides a measure of accountability we haven’t had, but its only one step down a longer road.”

Running though Abu Zubaydah’s story, Tomer notes that the US government “reportedly paid $10 million to the Pakistani government for information about Zubaydah’s whereabouts” — information I hadn’t heard before — and then proceeded to explain Zubaydah’s actual role, rather than the false one attributed to him by the US government. As he stated, “There is evidence Zubaydah helped radical Islamic ideologues by supplying them with fake passports and transportation. However, the evidence did not support the allegation that Zubaydah was a member of al-Qaeda, let alone one of its leaders.”

Below is Tomer’s description of what happened to Abu Zubaydah from the time of his capture until he was sent to Guantánamo, and I’m cross-posting it in its entirety because it sums up well the disgraceful treatment to which he was subjected:

While attempting to evade capture, Zubaydah was shot in the thigh, testicle, and stomach. One of the doctors who treated Zubaydah said he had never seen someone survive such serious injuries.

As he recovered from his wounds, Zubaydah was reportedly cooperative with FBI officials, offering information about al-Qaeda operations, including the identification of Khalid Sheikh Mohammed as the mastermind of 9/11.

In Washington, top officials within the Bush administration — including President Bush, Vice President Dick Cheney, Secretary of State Colin Powell, National Security Adviser Condoleezza Rice, Secretary of Defense Donald Rumsfeld, and Attorney General John Ashcroft — discussed the idea of using “enhanced interrogation techniques” on Zubaydah, who would later be described as a “guinea pig” for the program. The techniques were approved at the highest levels, and memos providing legal justification for the use of torture were then crafted.

At least one of the policy’s architects had second thoughts, however. During a discussion on the use of torture in the White House’s Situation Room, John Ashcroft reportedly asked: “Why are we talking about this in the White House? History will not judge this kindly.”

Zubaydah was soon removed from the hospital and taken into CIA custody at a covert detention facility in Thailand, where the CIA used the newly authorized techniques.

According to the Senate Select Committee on Intelligence’s 2014 report on the CIA’s use of torture, known as the Torture Report, the CIA acknowledged the possibility that Zubaydah might die during the “enhanced interrogation,” in which case his body should be cremated and disposed of discreetly.

Owing to the nature and effects of the “planned psychological pressure techniques” the CIA was using, Zubaydah’s interrogation team sought assurances that if he survived, Zubaydah would “remain in isolation and incommunicado for the rest of his life.”

Zubaydah was waterboarded — essentially a form of forced drowning — at least 83 times. On one occasion, Zubaydah stopped breathing and had to be resuscitated.

Eventually, a CIA agent could merely snap his or her fingers and Zubaydah would lie down, ready to endure the next round of torture.

Zubaydah was placed in a coffin-sized box for more than 11 days, and an even smaller box for another day. According to the Torture Report, “The CIA interrogators told Abu Zubaydah that the only way he would leave the facility was in the coffin-shaped confinement box.”

He was subjected to sleep deprivation; shackled to chairs and forced to urinate on himself (oftentimes inflaming his wounds); forced to listen to music at deafening volumes; and beaten.

Sometime between August, 2002, when his torture began, and October, 2002, Zubaydah lost his left eye. The passage in the Torture Report explaining how this happened was redacted.

Based on the evidence available, it appears Zubaydah shared what information he had during his hospitalization, and that torture drove him to lie in the hopes that any information would make the torture stop. “We spent millions of dollars chasing false alarms,” one former intelligence official told the Washington Post in 2009.

Video recordings of Zubaydah’s torture were made, but following the public outrage in 2004 over photos of torture and prisoner abuse at the U.S.-run Abu Ghraib prison in Iraq, the tapes were destroyed. Current CIA Director Gina Haspel drafted the order to destroy the tapes at the direction of her superior officer, Jose Rodriguez.

After being held in Thailand throughout 2002, Zubaydah was shipped to Guantánamo Bay in 2003. In 2004, when the Supreme Court decided to review the Bush administration’s policy of holding foreign nationals in Guantánamo Bay without permitting them to challenge the legality of their detention, the CIA secretly moved Zubaydah and a number of other detainees again.

Zubaydah was imprisoned at a number of CIA black sites, including one in Poland and another in Lithuania.

Zubaydah was eventually returned to Guantánamo Bay, at which point the effects of his treatment had become apparent.

Zubaydah had suffered a severe head injury in 1992 during the Afghan Civil War, causing him to suffer seizures and exhibit many signs of serious personality disorders.

In a 2009 op-ed for the Los Angeles Times, Joseph Marguiles, Zubaydah’s U.S. counsel, wrote that as a result of Zubaydah’s initial injuries, his treatment at the hands of the CIA, and his time spent in isolation, “Abu Zubaydah’s mental grasp is slipping away.

“He suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures. But physical pain is a passing thing. The enduring torment is the taunting reminder that darkness encroaches. Already, he cannot picture his mother’s face or recall his father’s name. Gradually, his past, like his future, eludes him.”

Returning to the legal efforts to seek justice for Zubaydah outside the US, Tomer’s discussion with Helen Duffy led to her emphasising the significance of the European Court of Human Rights. “This is the only judicial forum before which Abu Zubaydah has ever had any kind of recognition of him as a victim of torture,” she said.

Tomer proceeded to explain that the court “determined that the available evidence proved that Abu Zubaydah had been transported to Lithuania as a part of the CIA’s rendition program,” and “also found that the Lithuanian government assisted the CIA in covering up this activity — in one instance, falsifying flight plans to hide the fact that the CIA had moved Zubaydah to Lithuania.”

As Tomer put it, Duffy “described the court’s ruling as an important reassertion of key principles: the prohibition on torture and unlawful detention, as well as the right to truth and accountability.” As she stated, “It is a categorical condemnation of the many states that cooperated with this unlawful program of rendition and torture. I think it sends a strong message that states can’t cooperate without assuming some level of responsibility to the violations they contribute to.”

In Lithuania’s case, this responsibility involves the court’s requirement that the government “conduct a criminal investigation within its own country and lobby the US government on Zubaydah’s behalf as particularly meaningful aspects of the ruling.” As the court noted, “An ongoing failure” to do so “will be regarded as a continuing violation.”

As the foreign litigation continues, with the court “encourag[ing] more countries to deal with Zubaydah’s case,” Helen Duffy expressed her hope that the US government would “address Zubaydah’s case within proper and public legal channels,” although, to be honest, this seems extremely unlikely under Donald Trump.

Nevertheless, she explained how the effort to do so was about “trying to bring a little measure of justice to move him towards a situation where he’s back within some kind of ‘rule of law’ framework.” She added, as Tomer described it, that “public advocacy will be crucial to obtaining justice for Zubaydah in the US,” but that “one of the key hurdles will be battling the widely held view that Zubaydah was a member of al-Qaeda,” something that Charles Church’s article for Lawfare subsequently sought to address. Duffy also told Tomer that she “believes increasing awareness and concern in Zubaydah’s case requires that people see him ‘as another human being who has had his rights violated.’”

In a heartfelt defense of the significance of the law, Tomer wrote:

Ms. Duffy is right. Abu Zubaydah may have facilitated terrorist activity, but he has never been afforded the opportunity to face his accusers or address any of the allegations made against him in a court of law, as he has never been formally charged with a crime. What Zubaydah may have been or may have done, this kind of treatment is not in accord with our legal principles or values.

Of at least equal relevance, depriving Zubaydah of the rights that form the basis of our government and which we seek to defend undermines the legal and moral credibility of the U.S. position; specifically, if the U.S. wants to prevail in its war against those who attack “American values,” it should start by guaranteeing that the civil liberties we fight to protect are available to all the government prosecutes, including suspected terrorists.

Yet, as Ms. Duffy has asserted, Zubaydah’s treatment and detention “is anathema to the rule of law.”

Tomer proceeded to describe the “underlying realities” of Zubaydah’s case as “harsh and unhappy,” stating, “The U.S. government is unwilling to grant Zubaydah a trial because to do so would create conditions under which officials of various U.S. agencies could be forced to testify under oath about the circumstances and manner of Zubaydah’s treatment while under detention, in the process exposing U.S. policies to public scrutiny.”

He added, “That a trial might place U.S. security interests and personnel at risk is also an important factor in deterring the government from granting Zubaydah a trial. But the belief that such concerns necessarily preclude Zubaydah’s rights under U.S. law to due process and a speedy trial is one that should be considered with great care, given the significant harm a calculus sacrificing civil liberties in favor of national security might do.”

Tomer concluded his article by stating, “”It is not clear today what it will take for the U.S. government to grant Abu Zubaydah his day in court,” to which Charles Church provided an answer in his article for Lawfare, although it was not a reassuring assessment. 

As Church stated, “the U.S. government doesn’t want to prosecute him. Members of our legal team wrote four letters to military commission officials from May 10, 2012, to Feb. 5, 2016, urging and then demanding that they charge and prosecute Abu Zubaydah. We even filed an ethics complaint against the chief prosecutor asserting his obligation to comply with these demands, but the state ethics board — recognizing a political hot potato when presented with one — declined to move against the prosecutor. None of these efforts succeeded. Hence, after more than 16 years (and counting) the United States continues to hold Abu Zubaydah in solitary confinement, incommunicado, in that military prison.”

For those who care about justice, this is a terrible situation to be in. For Abu Zubaydah, it must be a living hell.

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 music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in 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), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

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