Open the lid on US torture

The public deserves to know what the CIA did in its name

September 24, 2015 2:00AM ET

I thought things might be changing earlier this year, but I was wrong.

In January, Barack Obama’s administration announced what seemed to be a major change in policy: Henceforth, former prisoners of the Central Intelligence Agency would be allowed to describe their life in custody. Though they could not identify CIA personnel or disclose where they were tortured, the new rule allowed them to provide “information regarding [their] treatment” and “conditions of confinement.”

That was a big deal, and those of us who represent the men tortured by the CIA welcomed the news. Attorneys for Majid Khan, a former CIA prisoner, promptly sought permission to disclose his description of his torture. Among other abuses, he was subjected to what the CIA euphemistically calls rectal infusions but what prosecutors all over the country call anal rape.

After some back and forth, the government allowed Khan’s lawyers to release his account to the public. Reuters published the account, and for the next 24 hours, the article was one of the most popular stories on Reuters’ 17 websites worldwide, which gives some indication of the public interest in this information.

And that was apparently the end of the administration’s very brief dalliance with transparency.

My colleagues and I represent Zain Abidin Mohammed Husain Abu Zubaydah, who was the first person subjected to so-called enhanced interrogation techniques. In fact, he is the person for whom the techniques were devised. Like Khan’s lawyers, we sought permission to disclose Abu Zubaydah’s description of his torture.

Abu Zubaydah’s treatment was considerably more brutal than Khan’s and went on for a substantially longer period. The public already knows he was waterboarded 83 times in August 2002 alone. In fact, according to the Senate Select Committee on Intelligence, Abu Zubaydah’s torture was so appalling that when it began, seasoned CIA agents asked to be transferred rather than be forced to watch it take place. It was sufficiently grotesque that the CIA sought assurances that his treatment would never come to light and that he would be held incommunicado for the rest of his life.

You want to get beyond the sterile bureaucratic blather that deliberately conjures no image — empty expressions such as ‘stress position’ and ‘enhanced interrogation’?

And that is precisely why it should be known. Four people represent Abu Zubaydah: Mark Denbeaux, a law professor at Seton Hall; Amy Jacobsen, an American lawyer now living in Copenhagen, Denmark; Brent Mickum, an attorney in Washington, D.C.; and me. We are among the few people in the world who know what happened to him at the CIA black sites. And the facts of his treatment would make people sick. Literally physically sick.

In response to the new rule, we submitted 136 pages of notes and drawings in 17 submissions — some written by us, most by our client. In these pages, Abu Zubaydah described in great detail the treatment and conditions he endured. We followed the government’s requirements to the letter, carefully removing all prohibited information.

The government authorized us to release a grand total of four pages. Here they are:

I realize that for some people, it might make a difference whether the government was right about Abu Zubaydah, whether he really was the terrorist mastermind that officials thought he was when the CIA was torturing him. That’s not my view — I think torture is always wrong — but I know many people disagree with me. I respect their view but would suggest that, at this stage of the debate, the question is not whether he should have been tortured but whether the facts surrounding his torture should remain secret.

In any case — and I add this only because it matters to a lot of people — the Senate Select Committee on Intelligence found what we and a number of intelligence officials have said for years: The government was horribly mistaken about Abu Zubaydah. He was never a member of Al-Qaeda, let alone the No. 3 man, as he was often portrayed. What’s more, he had no knowledge of or role in any Al-Qaeda plot, including 9/11. In fact, the Senate found there was no support for any of the claims made by the CIA, claims that the agency used to justify his torture. He has not been charged in the military commission system, let alone a real court, and probably never will be.

Abu Zubaydah is the poster child for the torture program, which is why the government wants to bury him at Guantánamo. You want to know what we did to him? You want to get beyond the sterile bureaucratic blather that deliberately conjures no image — empty expressions such as “stress position” and “enhanced interrogation”?

His account sits in a carefully marked folder, in a specific drawer, locked in a certain room of a particular building. Should the content of this folder be the subject of public discussion? I think so, and if the reaction to the disclosure of Khan’s account is any indication, so do a great many other people.

You want to see it? Don’t ask me. Don’t ask my co-counsel. We’re not allowed to disclose it. Ask the government.

Joseph Margulies is a visiting professor of law and government at Cornell University. He represents Guantánamo Bay detainee Zain Abidin Mohammed Husain Abu Zubaydah and was the counsel of record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar and Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. 

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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