Amanda L. Jacobsen, a law faculty member at the University of Copenhagen, faculty of Law, and Joseph Margulies, a professor of law and government at Cornell University, are lawyers for Guantanamo Bay detainee Abu Zubaydah.
The poster child of the American torture program sits in a Guantanamo Bay prison cell, where many U.S. officials hope he will simply be forgotten. But blood always leaves a stain, and the mark on our conscience and law will remain until we reckon with the case of Zayn al-Abidin Muhammad Husayn, known to the world as Abu Zubaydah.
Zubaydah was the “guinea pig” of the CIA torture program. He was the first prisoner sent to a secret CIA “black site,” the first to have his interrogation “enhanced ” and the only prisoner subjected to all of the CIA’s approved techniques, as well as many that were not authorized. He is the man for whom the George W. Bush administration wrote the infamous torture memo in the summer of 2002.
The United States pressed Zubaydah into this indecent role because the Bush administration believed he was a senior member of al-Qaeda. Senior officials thought he had been personally involved in every major al-Qaeda operation, including 9/11. Today, the United States acknowledges that assessment was, to put it graciously, overblown. As much to the point, according to the Senate Intelligence Committee, his extended torture provided no actionable intelligence about al-Qaeda’s plans.
The chasm between myth and reality explains much about what has happened since his arrest in March 2002. The United States has cast him into limbo. He has never been charged with a violation of U.S. law, military or civilian, and apparently never will be formally charged. Instead, he languishes at Guantanamo. After years in secret prisons around the world, he remains incommunicado, with no prospect of trial.
We have been representing Zubaydah for nine years and have gotten to know him through numerous face-to-face meetings. Recently, the public got a brief glimpse of Zubaydah. For the first time since his arrest, he appeared for a few minutes on a video broadcast from Guantanamo. A dozen journalists and human rights advocates huddled in the District to watch as he appeared silently on the screen; no recording devices were permitted. The ostensible purpose of the appearance was a “hearing” to consider whether Zubaydah might finally be released. But this proceeding was mere political theater.
To begin with, Zubaydah had no counsel at the hearing. Although he has a team of lawyers who have volunteered to represent him, for free, the United States authorized only one of his counsel, Seton Hall law professor Mark Denbeaux, to appear on his behalf. Just before the hearing, Denbeaux had to cancel his flight, when he was informed that his wife of 51 years, Marcia, needed emergency surgery. No other attorney could substitute because Denbeaux alone had been authorized by the government to fly to the base.
Although Denbeaux made clear to the government that his wife was on her deathbed, the government refused to delay the proceeding, even for a few days. After imprisoning Zubaydah for years with no legal process, it was suddenly imperative that the hearing take place without delay, and therefore without counsel. Marcia Denbeaux died four days after the hearing.
Unable to appear on his behalf, his legal team asked the Periodic Review Board, composed of a cross-section of national security officials, to consider a summary of the report on the torture program prepared by the Senate Intelligence Committee. That summary, based on a review of more than 6 million pages from inside the CIA, provides the most detailed account of Zubaydah’s torture and the mistakes and misrepresentations made about him. The Review Board refused to read it. They said it was too long.
At the public portion of this hearing, Zubaydah was not merely silent, but silenced. The public did not hear Zubaydah speak because the government would not allow him to respond publicly to the allegations against him. Instead, Zubaydah was permitted to speak only in the closed session, and a government representative, who had met him only briefly a few weeks before the hearing, was assigned to read a half-page statement, which was prepared for Zubaydah and pre-approved by the government for the public session.
Dismissing Zubaydah’s express repudiation of terrorism, the government insisted in its official allegations against him that Zubaydah “probably retains an extremist mindset” and “possibly” or “might” or “could” be dangerous. Even the fact that he has consistently been highly cooperative during his imprisonment was twisted to suggest he was simply honing his skills as a terrorist.
Who is Zubaydah, really? Despite the tremendous amount of information about Zubaydah that has become publicly available over the years, public understanding about Zubaydah remains remarkably controlled and superficial.
The person we have come to know over nearly a decade is caring, funny, forgiving, honest. But you do not need to agree with our assessment of his character to recognize Zubaydah’s humanity and, therefore, be horrified at his treatment — first his torture, and now the drawn-out pain of being held indefinitely.
In connection with Zubaydah’s stalled case seeking federal court review of his detention, the government has recently agreed to clear for public release a few of the letters he has written to us. These brief letters, published here for the first time, provide what we believe is a far truer glimpse of Zubaydah than the government’s “hearing” has or ever was intended to provide.