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In Abu Zubaydah Court Case, US Judges Admit He Was Tortured – OpEd

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When it comes to the disgraceful US prison at Guantánamo Bay, where men are held — on a seemingly endlessly basis — without charge or trial, and where many of the 40 men still held were the victims of torture in CIA “black sites” before their arrival at the prison, the dominant reaction, from the mainstream US media and the American people in general, as Guantánamo nears the 18th anniversary of its opening, is one of amnesia.

With the valiant exception of Carol Rosenberg, who has been visiting the prison since it opened, and who, these days, is often the only journalist visiting and paying attention to its despairing prisoners and its broken trials, the mainstream media largely pays little or no attention to Guantánamo, as was apparent in June, when a significant court victory for the prisoners — challenging the long-standing nullification of the prisoners’ habeas corpus rights, dating back to 2011 — was completely ignored. I wrote about it here for Close Guantánamo, and also posted it here, where it secured significant interest from the small community of people who still care about the injustices of Guantánamo, but it was dispiriting that no one else noticed.

Two weeks ago, the mainstream US media once more largely failed to notice a significant court ruling relating to Guantánamo — and the US torture program — which was delivered by judges in the Ninth Circuit Court of Appeals in relation to Abu Zubaydah, held at Guantánamo since September 2006, and the prisoner for whom the CIA’s torture program was first developed back in 2002.

In their ruling, relating to 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, two of the three judges reviewing the case, which had previously been turned down by a District Court judge, stated, “To use colloquial terms … Abu Zubaydah was tortured.”

The story was reported by the San Francisco Chronicle, which noted that the ruling “took the rare step of disdaining the euphemism ‘enhanced interrogation techniques,’” and was also picked up on by the Associated Press, whose report was published by some US regional newspapers and websites.

Cornell University law professor Joseph Margulies, who represented Abu Zubaydah for more than a decade, told the Chronicle, “It’s the first time an appellate court, to my knowledge, has come right out and said that the enhanced interrogation techniques were torture. We’re no longer going to equivocate.”

It was also, as Margulies explained, “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.”

All of the above has been known, to anyone paying attention, for over a decade. In 2007, the New York Review of Books published a leaked report by the International Committee of the Red Cross featuring interviews conducted by ICRC personnel with Abu Zubaydah and other “high-value detainees” brought to Guantánamo from the “black sites” in September 2006, in which they described their torture in agonising detail, and a court case in 2009 found the government “back[ing] away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks,” and “admitting for the first time that “Zubaydah did not have ‘any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,’ and was neither a ‘member’ of al-Qaeda nor ‘formally’ identified with the terrorist organization.”

However, having a court declare openly that a “war on terror” prisoner was tortured — and to also endorse the Senate committee’s conclusion that his characterisation as a high-level member of Al-Qa’ida” was “erroneous” — is significant.

The use of euphemisms for torture — primarily, “enhanced interrogation techniques” — has generally been so prevalent that, for example, the Senate report didn’t actually use the word torture, the New York Times only began using the word “torture” in relation to the US torture program in August 2014, and the only Bush-era official who publicly admitted that a prisoner was tortured was Susan Crawford, the convening authority for the military commission trials at Guantánamo, who, in January 2009, just before George W. Bush left office, told Bob Woodward of the Washington Post that she had refused to endorse the proposed prosecution of Mohammed al-Qahtani, who was held at Guantánamo and considered to have been the intended 20th hijacker for the 9/11 attacks, and for whom a brutal torture program was approved by Donald Rumsfeld, because, as she put it, “We tortured Qahtani. His treatment met the legal definition of torture.”

I’m cross-posting below an article about the decision that Margulies wrote for the Boston Review, a political and literary forum that publishes a quarterly magazine, in which, as well as addressing the significance of the ruling, he also explains how Abu Zubaydah has been persistently failed by the US legal system — with a District Court judge failing to issue a ruling regarding his habeas corpus petition, which was submitted in 2008, and with the D.C. Circuit Court also ignoring a request by lawyers to intervene. In addition, as he states, “Abu Zubaydah has also never been charged in the military commission system,” but when his lawyers “took the extraordinary step of demanding that he be charged there,” so that they “could finally make plain that he committed no act that authorizes his detention,” that request was also ignored.

Margulies also notes the significance of amnesia regarding Guantánamo and torture, noting that the US “is gradually reaching the point when it can publicly face up to our history as torturers precisely because it is history,” noting that, as a result, torture “can now be recast in service of one of our most cherished myths — that while we may stray from the path of righteousness, we will eventually find our way back as we labor to form ‘a more perfect Union.’” As he also states, “the most important role of a national disgrace that has faded into the distant past is the permission it gives to the present. As a political matter, a wrong that escapes condemnation is no wrong at all. Scandal unpunished is no scandal. If society never registers its collective disapproval, either in a court of law or the court of public opinion, the behavior embeds itself within the range of acceptable policy responses. This invites not merely repetition, but expansion. Once we tortured prisoners; now we torture children at the border.”

The references to Donald Trump, which also include mention of the current impeachment scandal, are to be welcomed, but Americans also need to ask themselves if they too have been removed from the moral impact of torture by the passage of time, and by the ways in which its significance has been officially diminished. Let us never forget that, in August 2014, Barack Obama breezily dismissed the entirety of the torture program by stating, “We tortured some folks,” carefully chosen words that acknowledged that the US had “crossed a line,” but that fundamentally downplayed the gravity of the torture program, turning it into some kind of folksy aside.

I hope you have time to read Margulies’ article, and that you’ll share it with others who might appreciate the importance of remembering what torture is, and why we must continue to call for justice for its victims, and accountability for those who authorized it and implemented it.

In Abu Zubaydah’s case, it remains to be seen what happens next — or rather, what significance it will have. As the San Francisco Chronicle explained, the appeals court’s ruling “said only that a federal judge had gone too far” in concluding that any questioning of Mitchell and Jessen “would expose state secrets about CIA detention and interrogation practices,” and directed the lower court to “take a closer look to determine which subjects could be safely examined.”

In the majority opinion, Judge Richard Paez — “joined by US District Judge Dean Pregerson of Los Angeles, temporarily assigned to the appeals court”, with only Judge Ronald Gould dissenting — refuted Justice Department claims that answers given to questions put to Mitchell and Jessen “could reveal classified information about CIA intelligence sources, foreign government cooperation and terrorist investigations.”

As the Chronicle described it, “the appeals court said some information about the CIA’s torture program and its past operation in Poland has long been known to the public,” and in any case, as Judge Paez explained, the purpose of confidentiality rules “is to protect legitimate government interests, not to shield the government from uncomfortable facts.”

He added that the lower court judge in charge of the case should be able to “disentangle the privileged from nonprivileged information” regarding the questioning of Mitchell and Jessen.

As the Chronicle also explained, “it’s not clear how much of the information, if any, will be turned over to Polish prosecutors,” but it to be hoped that some information will be forthcoming. In July 2014, as I explained at the time, “the European Court of Human Rights unanimously condemned the US for implementing a program of extraordinary rendition and torture, and condemned Poland for its involvement in the program” by hosting a CIA “black site,” and, in February 2015, ordered the Polish government to pay €130,000 ($148,000) to Abu Zubaydah, but they did so without any input from the US government, which, to date, has refused to provide any information to Polish prosecutors regarding the torture of Abu Zubaydah — and other “black site” prisoners — on Polish soil.

U.S. Judges Admit Enhanced Interrogation Is Torture By Joseph Margulies, Boston Review, September 26, 2019

Last week, for the first time, a federal appellate court said that “enhanced” interrogation techniques are torture.

In case you have forgotten, these were the brutal interrogation methods developed by the CIA after the September 11 attacks in 2001. A panel of the Ninth Circuit Court of Appeals crossed the Rubicon in a case involving Abu Zubaydah — the first person thrown into a CIA “black site,” the person for whom former Deputy Assistant U.S. Attorney General John Yoo wrote the infamous torture memo, and the only person subjected to all the “enhanced” techniques. As far as we can tell, Zubaydah, who is still being held at Guantánamo, is the only post–9/11 detainee whose interrogation was the subject of discussion and debate inside the White House. As the court wrote:

The details of Abu Zubaydah’s treatment during this period are uncontroverted: he was persistently and repeatedly waterboarded; he spent hundreds of hours in a “confinement box,” described as coffin-sized; he was subjected to various combinations of interrogation techniques including “walling, attention grasps, slapping, facial hold, stress positions, cramped confinement, white noise and sleep deprivation”; his food intake was manipulated to minimize the potential of vomiting during waterboarding. To use colloquial terms … Abu Zubaydah was tortured.

The panel also did what no court, appellate or otherwise, has ever done. It acknowledged that the allegations made to justify this torture — claims that were repeated over and over again by countless officials, including President Bush — were simply mistaken:

Abu Zubaydah was thought to be a high-level member of Al-Qa’ida with detailed knowledge of terrorist plans. A 2014 report by the Senate Select Committee on Intelligence Study on the CIA’s detention and interrogation program (“Senate Select Committee Report”) later revealed this characterization to be erroneous.

This decision, which unfortunately will have no immediate effect on Abu Zubaydah’s detention, came in a case that began a couple years ago, when my colleagues and I served a subpoena on James Mitchell and John Jessen, the former psychologists who designed and implemented the “enhanced” techniques for the CIA — which paid their company more than $80 million. We wanted to ask them questions in support of an ongoing criminal investigation in Poland directed at the officials who created and operated the Polish detention facility where Abu Zubaydah had been tortured. The U.S. Justice Department has shielded Mitchell and Jessen from questioning, arguing that it could reveal classified information.

The district court dismissed the case, saying the information we sought was a state secret. In our appeal a divided panel of the Ninth Circuit disagreed, concluding that at least some of the information we sought was no longer secret, and directing the district judge to disentangle wheat from chaff. The purpose of confidentiality rules, they ruled, “is to protect legitimate government interests, not to shield the government from uncomfortable facts.”

The Ninth Circuit opinion passed virtually unnoticed in the news, but it teaches us a great deal about hubris masquerading as patriotism, which is always a lesson worth learning. If the United States government did not get it right in the first case — the case that set the standard for all the torture that followed and was subject to closer vetting and more heated debate than any other — then we are right to ask whether it is a choice they should have ever entertained.

I represented Abu Zubaydah for more than a decade, beginning shortly after the Bush administration shipped him to Guantánamo in September 2006 and continuing until only a few months ago. In that time, my colleagues and I have challenged aspects of his detention and torture in two federal district courts, two federal courts of appeal, administrative agencies and state courts in Texas, a national court in Poland, and The European Court of Human Rights in France. We have written endlessly about his case. We have made countless trips to Cuba and have conducted investigations all over the world.

The litigation — if you can call it that — has been maddening. The primary challenge to his detention has been underway since 2008 in the United States District Court for the District of Columbia. I take no pleasure in saying this, but the district judge, who needn’t be named here, has been inexplicably slow to act. We became so frustrated at the court’s inaction that we went over his head and urged the federal appellate court to intervene and order the lower court to get on with it. At this writing, the appellate court has not yet ruled. Abu Zubaydah has also never been charged in the military commission system, but we even took the extraordinary step of demanding that he be charged there, where we could finally make plain that he committed no act that authorizes his detention — even a kangaroo court is better than no court at all. That demand has also gone unanswered.

Through it all, we have insisted that the “enhanced interrogations” used on Abu Zubaydah were torture, and that he had no connection to Al-Qa’ida or the attacks of 9/11. Yet it took until now for a court to speak what is plain.

The passage of time explains a great deal. The country is gradually reaching the point when it can publicly face up to our history as torturers precisely because it is history. It is not simply that it happened in the past, but that the controversy no longer stirs the political blood. We have moved on; waterboarding is so 2002. When an issue drops out of the news cycle so completely — when it becomes as unfamiliar to most Americans as COINTELPRO — then it has lost its political potency. It no longer has the capacity to stoke political action.

For most of the post–9/11 era, employing the word torture was an act of political speech that marked the speaker as a partisan. Torture was not simply an outrage that happened elsewhere, committed by others; it was something perpetrated by the Bush administration, and using the word meant leveling a charge. Not always, of course, but often enough to make it taboo among those who wished to appear nonpartisan. Now it is fast becoming just another word. Defused, it loses its explosiveness, and may be handled freely, even by those who seek to keep up an appearance of evenhandedness, including judges.

Even worse, it can now be recast in service of one of our most cherished myths — that while we may stray from the path of righteousness, we will eventually find our way back as we labor to form “a more perfect Union.” This teleological view of history encourages us to view the past as benighted in order to intensify our perception of the present as enlightened. We like a dark past, as long as it is also distant.

Yet the most important role of a national disgrace that has faded into the distant past is the permission it gives to the present. As a political matter, a wrong that escapes condemnation is no wrong at all. Scandal unpunished is no scandal. If society never registers its collective disapproval, either in a court of law or the court of public opinion, the behavior embeds itself within the range of acceptable policy responses. This invites not merely repetition, but expansion. Once we tortured prisoners; now we torture children at the border.

Today, there is a credible allegation that our sitting president tried to influence a presidential election by coercing a foreign government into investigating his political opponent. As expected, the allegation has become the object of partisan fury. Repeating it has become an act of political speech, marking the speaker as a partisan.

As before, the risk is great that our values will once again succumb to our politics. Too many people will tiptoe around this disgrace as they did around torture, at least until it is safely behind us. Then they will condemn the behavior as a betrayal of our “true” principles. But by that time, it will be too late. We will have moved on to something worse.

We like to believe that values have a power of their own, and can compel a result even when there is no political will behind it. The lesson of history is not kind to that belief. The arc of the moral universe is very long indeed, but we should be clear-eyed that it rarely bends toward justice when justice is needed most. If we are to make our values meaningful, we must demand that they be honored even when sitting politicians are unwilling to act, for that is the only time our values can do much good.

Andy Worthington

Andy Worthington

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to his RSS feed (he can also be found on Facebook and Twitter). Also see his definitive Guantánamo prisoner list, updated in January 2010, and, if you appreciate his work, feel free to make a donation.

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