By Joseph Margulies and George Brent Mickum
Saturday, February 23, 2008 12:00 AM
As you read this, we expect to be in Guantanamo, meeting with the man President Bush mentions when he talks about the intelligence gained and the lives saved because of "enhanced" interrogation techniques. We represent Saudi-born Abu Zubaydah in a legal effort to force the administration to show why he is being detained. And this week, with our first meeting, we begin the laborious task of sifting fact from fantasy. Yet we worry it may already be too late.
The administration declares with certainty that Zubaydah is a "senior terrorist leader and a trusted associate of Osama bin Laden" who "helped smuggle al-Qaeda leaders out of Afghanistan." Dan Coleman, a former FBI analyst who was on the team that reviewed Zubaydah's background file, disagrees, describing him as "insane, certifiable" and saying he "knew very little about real operations, or strategy." We do not presume to know the truth. So far, we know only what has been publicly reported. But we hope to uncover the facts and present them to those with the power to act upon them.
Yet Zubaydah's mind may be beyond our reach. Regardless of whether he was "insane" to begin with, he has gone through quite an ordeal since his arrest in Pakistan in March 2002. Shuttled through CIA "black sites" around the world, he was subjected to a sustained course of interrogation designed to instill what a CIA training manual euphemistically calls "debility, dependence and dread." Zubaydah's world became freezing rooms alternating with sweltering cells. Screaming noise replaced by endless silence. Blinding light followed by dark, underground chambers. Hours confined in contorted positions. And, as we recently learned, Zubaydah was subjected to waterboarding. We do not know what remains of his mind, and we will probably never know what he experienced.
Of course, the challenge of reconstructing what took place was made infinitely more difficult when the CIA destroyed the recordings of Zubaydah's interrogation. But we already know something about what these techniques produce. It was the Cold War communists who perfected the dark art of touchless torture. And with it, they brought U.S. soldiers to the tipping point, where the adult psyche shatters, leaving behind a quavering child. At the end of their ordeal, these soldiers made fantastic admissions of American perfidity and spoke unreservedly about their supposed misdeeds.
The Bush administration says Zubaydah and other products of the CIA "black site" program repeated their confessions to FBI agents -- a "clean team" that used authorized interrogation techniques to scrub away the fetid stain of torture. But the communists didn't need to hold our soldiers at gunpoint as they recited their confessions. Continued cruelty becomes unnecessary when a prisoner has lost the will to resist.
What will we be able to learn, at this point, from Zubaydah? Will we be able to recreate the interrogations without the tapes? Will we get access to the material that led Coleman to a conclusion so different from the administration's?
Because we represent Zubaydah, some people will likely discount whatever we say. But do not misunderstand; this is not a plea for pity. Whether people approve or disapprove of what has happened to Zubaydah, that's a separate question.
The American system of justice is founded on the idea that truth emerges from vigorous and informed debate. And if that debate cannot take place, if we cannot learn the facts and share them with others, the truth is only what the administration reports it to be. We hope it has not come to that.
Joseph Margulies is assistant director of the MacArthur Justice Center at Northwestern University Law School. George Brent Mickum is an attorney in Washington, D.C.