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Will Tomer

“History will not judge this kindly”: Pursuing justice for the first victim of the CIA’s torture program

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    Abu Zubaydah was the first victim of the CIA's torture program.

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    Helen Duffy, founder of the legal nonprofit Human Rights in Practice, is Abu Zubaydah's European counsel.

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    A drawing done by Abu Zubaydah while in custody, recently released to the public.

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Abu Zubaydah, a Saudi Arabian native and the first victim of the CIA’s torture program, has never been charged with a crime. But he has been detained by the United States for more than 16 years, much of that time at Guantánamo Bay. The U.S. government’s explanation for why it has detained Zubaydah, that he was a top member of al-Qaeda, has been discredited. He remains in custody, however, and has not been permitted to plead his case for exoneration and freedom.

Yet, in late May, nearly 5,000 miles from Guantánamo Bay, Abu Zubaydah achieved a measure of justice, albeit small. The European Court of Human Rights (ECHR) ruled that Lithuania was legally responsible for violating Zubaydah’s rights by allowing the CIA to detain him at a secret site in the country.

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The court has ordered Lithuania to pay Zubaydah €100,000 in damages and 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.”

That this judgment was won at all is impressive, given the stringent limitations placed upon Zubaydah’s lawyers by the U.S. government.

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. Even his power of attorney form, the legal instrument used to validate the role of his European attorneys, has been classified. (In lieu of the power of attorney form, one of Zubaydah’s U.S. attorneys submitted an authorization form to the ECHR in 2011.)

In spite of these challenges, Helen Duffy, Zubaydah’s senior European counsel and founder of the legal organization Human Rights in Practice, has brought successful lawsuits against two European states — Lithuania and Poland — for their respective roles in Zubaydah’s rendition and torture.

For Ms. Duffy, the recent judgment on Lithuania was small, but the legal significance was great. “It provides a measure of accountability we haven’t had,” she told me during a recent interview, “but its only one step down a longer road.”

There is no doubt that the pursuit of justice for Abu Zubaydah is a long road, and one for which there is no clear path.

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Abu Zubaydah was the first victim of the CIA's torture program.

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‘Incommunicado’

Abu Zubaydah was captured by U.S authorities in Pakistan on March 28, 2002. The U.S. government reportedly paid $10 million to the Pakistani government for information about Zubaydah’s whereabouts.

The U.S. suspected Zubaydah was a top al-Qaeda operative who helped plan the September 11 attacks. He was described by President George W. Bush as “al-Qaeda's chief of operations.” His capture was touted then as a major accomplishment in the War on Terror. However, intelligence gathered subsequently revealed that Zubaydah’s importance was greatly exaggerated.

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.

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.

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A drawing done by Abu Zubaydah while in custody, recently released to the public.

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“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.”

Recent Efforts

Most of the efforts to obtain justice for Zubaydah have been unsuccessful. But there has been some progress. The judgment on Lithuania is the most recent and most important advance in this process.

“This is the only judicial forum before which Abu Zubaydah has ever had any kind of recognition of him as a victim of torture,” said Ms. Duffy.

The European Court of Human Rights determined that the available evidence proved that Abu Zubaydah had been transported to Lithuania as a part of the CIA’s rendition program. It 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.

Ms. 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.

“It is a categorical condemnation of the many states that cooperated with this unlawful program of rendition and torture,” she said. “I think it sends a strong message that states can’t cooperate without assuming some level of responsibility to the violations they contribute to.”

While Ms. Duffy was quick to note that the full impact of the judgment has yet to be seen, she pointed to the ECHR’s requirement that Lithuania conduct a criminal investigation within its own country and lobby the U.S. government on Zubaydah’s behalf as particularly meaningful aspects of the ruling.

“An ongoing failure” to do otherwise, in the words of the court, “will be regarded as a continuing violation.”

What Comes Next?

As litigation abroad continues, and as the ECHR encourages more countries to deal with Zubaydah’s case, Ms. Duffy hopes that the U.S. government will address Zubaydah’s case within proper and public legal channels.

“It's a case 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,” explained Ms. Duffy.

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Helen Duffy, founder of the legal nonprofit Human Rights in Practice, is Abu Zubaydah's European counsel.

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Ms. Duffy believes that public advocacy will be crucial to obtaining justice for Zubaydah in the U.S. According to Ms. Duffy, one of the key hurdles will be battling the widely held view that Zubaydah was a member of al-Qaeda. She also believes increasing awareness and concern in Zubaydah’s case requires that people see him “as another human being who has had his rights violated.”

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.”

The underlying realities of this case are harsh and unhappy. 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. 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.

It is not clear today what it will take for the U.S. government to grant Abu Zubaydah his day in court. In the meantime, advocates like Helen Duffy will lobby for Zubaydah, and many like him, to ensure that countries like Lithuania, Poland, and the United States never feel comfortable treating another human being the way they treated Abu Zubaydah.

“People need to confront these mistakes, and maybe that’s too kind a word for them,” said Ms. Duffy. “But we need to confront what happened in the past and make sure it doesn’t happen again.”

Contact Will Tomer at wtomer@theblade.com, 419-724-6404, or on Twitter @WillTomer.

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