Abu Zubaydah’s case continues to languish in legal black hole

Though his diaries reveal his self-described '€˜jihadi' past, he has yet to receive due process

November 14, 2013 4:00PM ET

The case of Abu Zubaydah — the subject of an investigative story by Jason Leopold for Al Jazeera America based on revelations from Zubaydah's diaries — is important for the light it sheds on the program of extraordinary rendition and torture carried out by the U.S., with crucial support from its European allies, as part of the "war on terror."

In 2002, the U.S. government had an erroneous picture of Zubaydah's character and accomplishments, which informed the way he was treated. Torture techniques, pioneered on him, were then repeated on numerous other detainees caught up in the system of secret CIA-managed prisons known as "black sites," which stretched from Europe to East Asia.

The initial — and mistaken — U.S. view of Abu Zubaydah was that he was the third-highest-ranking leader in Al-Qaeda and was involved in every major Al-Qaeda terrorist operation. He was allegedly deputy commander of an Al-Qaeda training camp and coordinator of the group's external contacts. He was, the U.S. government believed, a planner of the Sept. 11 hijackings.

After his capture the CIA went to President George W. Bush’s top lawyers, in the Office of Legal Counsel, for guidance. They wanted to know what they were permitted to do to him. This is what they were told:

Zubaydah has become accustomed to a certain level of treatment and displays no signs of willingness to disclose further information … In light of the information you believe Zubaydah has and the high level of threat you believe now exists, you wish to move the interrogations into what you have described as an “increased pressure phase” … In this phase, you would like to employ ten techniques that you believe will dislocate his expectations regarding the treatment he believes he will receive …

Sleep deprivation may be used … You have orally informed us that you would not deprive Zubaydah of sleep for more than eleven days at a time and that you have previously kept him awake for 72 hours, from which no mental or physical harm resulted … You would like to place Zubaydah in a cramped confinement box with an insect. You have informed us that he appears to have a fear of insects … Finally, you would like to use a technique called the "waterboard."

In August 2002, as a direct result of this discussion, Abu Zubaydah was waterboarded "at least" 83 times.

From 2002 to 2006 he was spirited from one black site to another. Journalists and investigators traced his movements through Thailand, Poland, Morocco and Lithuania, to Afghanistan. Since 2006 he has been in the Guantanamo Bay detention facility, where, under a stringent regime of presumptive classification, he is unable to communicate in any way with the outside world. In the interim, the U.S. government’s position on Zubaydah's case has changed, as court filings demonstrate:

The Government has not contended that (Abu Zubaydah) had any personal involvement in planning or executing either the 1998 embassy bombings in Nairobi, Kenya, and Dar-es-Salam, Tanzania, or the attacks of September 11, 2001 … The Government also has not contended in the proceeding that at the time of his capture, (he) had knowledge of any specific impending terrorist operations other than his own thwarted plans … The government has not contended in the proceeding that (he) was a member of al-Qaida or otherwise formally identified with al-Qaida.

After Zubaydah has spent more than seven years in Guantanamo, the U.S. government still has not charged him with any crime. The military commissions have proceeded without him. His case for habeas corpus shows no sign of progress. The U.S. has shown no signs or prospects for a hearing or a judgment, while efforts in Europe to establish who knew what about his treatment there have been hobbled by investigative inadequacy, excessive delay and official secrecy.

In Lithuania, where investigation by Reprieve, a British nonprofit dedicated to protecting the rights of prisoners, placed him in 2005, prosecutors spent almost an hour and a half examining the former CIA site before deciding that it was not a prison because it did not have bars. No one had reported seeing any prisoners, they said, so they were confident that there had been none. Reprieve demonstrated that the planes, which entered and left Lithuania on falsely registered routes and evaded airport security, were operated by a subcontracting network set up expressly for black site transfers. Despite this, the Lithuanian government has implausibly insisted that "no information exists as to the links between the aircrafts at issue and any secret rendition program."

In Poland, Abu Zubaydah has been named as a victim in a criminal investigation that is nominally attempting to ascertain whether Polish officials were complicit in his torture. Almost no information about the nature of these proceedings has been disclosed; everything remains under seal of confidentiality, and much of the case file has not been shown to Abu Zubaydah's Polish lawyer. After five years of such opaque goings-on, regularly disrupted by departures of prosecutors and even of the file itself, his lawyers have turned to the European Court of Human Rights, because they believe that no meaningful remedy can now be said to exist in Poland. The case is to be heard in Strasbourg at the start of December. Given that part of the point of this process will be to establish whether the Polish government has failed to act sufficiently openly, it is telling that the government asked the court to conduct the whole case in secret. The court has refused.

The U.S. government’s torture of Abu Zubaydah was not an anomaly. The so-called enhanced techniques — designed for him personally — were extrapolated for use on others. The waterboard and the confinement box were applied not only to presumed top Al-Qaeda members but also, as Human Rights Watch demonstrated recently, to Libyan dissidents.

Last year the U.S. Senate intelligence committee produced 6,000 pages of detail on the systematic use of torture by the CIA between 2001 and 2006. President Barack Obama has stated that this activity was "inconsistent with our values as a nation." So will he demand that the CIA go ahead and agree to declassify the committee's report? Another year later, the president has not offered an answer.

Crofton Black is an investigator for Reprieve on its abuses in counterterrorism team. He specializes in extraordinary rendition and black site cases in Europe and in developments in counterterrorism strategies worldwide. Before joining Reprieve, he was a Humboldt fellow in the history of philosophy at the Freie Universität Berlin.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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