Abu Zubaydah Files Complaint About Torture and Ongoing Imprisonment at Guantánamo with UN Arbitrary Detention Experts

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On Friday, Abu Zubaydah (Zayn al-Abidin Muhammad Husayn), a notorious victim of torture in the CIA’s “black site” program, who has been held without charge or trial at Guantánamo since September 2006, submitted a complaint to the UN Working Group on Arbitrary Detention, regarding the lawless nature of his imprisonment and treatment since he was first seized in a house raid in Pakistan in March 2002.

The case has been submitted by Helen Duffy, Abu Zubaydah’s international legal representative since 2010, who represented him in his successful cases before the European Court of Human Rights regarding his “black site” detention in Poland and Lithuania, and the complaint accuses seven countries of having responsibility for his long imprisonment and mistreatment — not only (and primarily) the US, but also Thailand, Poland, Morocco, Lithuania and Afghanistan, the five countries in which he was held in “black sites” over a period of four and a half years, and the UK, which is accused of having “participated in other ways in the ‘global spider’s web’ of complicity in rendition,” primarily via “estimates that UK personnel were involved in approximately 2,000-3,000 interviews of CIA detainees in the aftermath of 9/11”, as indicated by the findings of the UK Parliament’s Intelligence and Security Committee (ISC) in 2019.

In a press release, Duffy explains that this is “the first international case brought by Zubaydah against the United States,” and is also “the first time that international legal action is taken against the UK, Afghanistan, Morocco and Thailand for their complicity in the US rendition and secret detention program.” In addition it is “the first time that a case has been brought against all states participating in an individual’s rendition and torture and ongoing unlawful detention at Guantánamo.”

“The application,” as Duffy also explains, “draws together the alarming facts of his case: misinformation propagated about him upon detention, the commitments given by high levels within the US to  detain him ‘incommunicado for the remainder of his life,’ the horrendous torture inflicted on him, and the impossibility for him to defend himself and secure his release.” She adds, “His detention has no lawful basis in international law, it offends all principles of due process, and is, as the European Court of Human Rights said in cases we brought on his behalf against Poland and Lithuania, a ‘flagrant denial of justice’ and ‘anathema to the rule of law.’”

Duffy adds that the UN Working Group on Arbitrary Detention is being asked to find that, firstly, “the US is obliged to release Abu Zubaydah”; secondly, that “other states must take all measures in their power, including offers of relocation, etc. to secure release and rehabilitation” (of particular significance because Zubaydah is a stateless Palestinian); thirdly, that “his detention at Guantanamo with no prospect of release is arbitrary, torture and violates his right to life”; and, fourthly, that “all states must ensure transparency, reparation and accountability for ‘war on terror’ violations that Abu Zubaydah’s case epitomizes, to learn lessons and prevent repetition.”

As Duffy also explains, “The timing is significant.” With the Biden administration having promised a “robust” review of Guantánamo, and its intention to close the prison, and with Biden himself stating his aim “to reposition the US as a country supporting [the] rule of law and human rights,” and with the 20th anniversary of the start of the “war on terror” looming (as well as the 20th anniversary of the opening of Guantánamo, in January 2022), the case is a test of the willingness of the US — and its allies — to finally address the long injustice of Abu Zubaydah’s treatment.

As Duffy notes, “How all states, including the US, respond to this urgent call and to the UN body will be a measure of their real commitment to human rights and to distancing themselves from abusive counter-terrorism.”

Duffy adds that, although the case focuses on Abu Zubaydah, it also has repercussions for all of the men still held at Guantánamo “in legal limbo,” and she also explains that Abu Zubaydah and other prisoners are currently showing their  “desperation” through a “massive hunger strike” that is currently “underway at Guantánamo” — a situation that has not, to date, surfaced in any mainstream media reports about the prison, over 100 days into Joe Biden’s presidency.

Meanwhile, in the US courts

In the US, meanwhile, efforts to hold accountable those responsible for Abu Zubaydah’s torture have failed to pass the first test under President Biden.

Back in September 2019, in what I described at the time as “an ongoing case in which lawyers for Abu Zubaydah are seeking to compel the architects of the torture program, James Mitchell and Bruce Jessen, to answer questions relating to an ongoing criminal investigation in Poland regarding the officials who established and operated the Polish ‘black site’ that was one of the locations for the torture of Abu Zubaydah,” the Ninth Circuit Court of Appeals overturned a previous District Court ruling shielding Mitchell and Jessen from scrutiny on the basis that allowing any testimony to proceed would reveal “state secrets” — a shameful position, to hide wrongdoing, that the US government has been using in torture-related cases since the Bush years, and which continued under Obama, most notoriously in the Jeppesen case in 2010.

The ruling was also noteworthy as the first time an appellate court stepped back from the usual US euphemism for torture — “enhanced interrogation techniques” — and stated openly, “To use colloquial terms … Abu Zubaydah was tortured.”

Furthermore, as Cornell University law professor Joseph Margulies, who represented Abu Zubaydah for more than a decade, told the San Francisco Chronicle, it was also “the first time a court has acknowledged that the government was simply mistaken about Abu Zubaydah, the poster child for the torture program.” The judges noted that, although Abu Zubaydah “was thought to be a high-level member of Al-Qa’ida with detailed knowledge of terrorist plans,” the  Senate Select Committee on Intelligence Study on the CIA’s detention and interrogation program, whose executive summary was released in December 2014, “later revealed this characterization to be erroneous.”

Instead of allowing the ruling to stand, however, the Justice Department — under Trump, taking a position subsequently unchallenged under Biden — has appealed to the Supreme Court to defend their shameful “state secrets” position, even after the full Ninth Circuit panel of judges refused to rehear the case last July.

As Judge Richard A. Paez wrote at the time, “Given the overwhelming, publicly available evidence that Abu Zubaydah was detained at a black site in Poland, it is difficult to take seriously the suggestion that media outlets are untrustworthy and that the standards applied by other judicial bodies are inadequate. Good grief, the president of Poland publicly acknowledged in 2012 that, during his presidency, Abu Zubaydah was detained in Poland by the CIA.”

Given the right-wing leanings of the Supreme Court established under Donald Trump — the most enduring legacy of his four years in office — it is unwise to expect that Abu Zubaydah will receive a fair hearing in the highest court in the US, which makes it all the more important that those of us who care about accountability for torture, and bringing to an end the shame of the prison at Guantánamo Bay, keep a close eye on the deliberations of the UN Working Group on Arbitrary Detention, who, I expect, will in due course deliver a withering rebuke to the lawlessness of the US and the six other countries named in Abu Zubaydah’s complaint.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), 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 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, or you can watch it online here, via the production company Spectacle, for £2.55).

In 2017, Andy became very involved in housing issues. He is the narrator of the 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. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

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