tortured detainee presumed guilty until proven innocent

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...the man described by President Bush and others within his administration as a "top operative", the "number three person" in al-Qaida, and al-Qaida's "chief of operations" was never even a member of al-Qaida, much less an individual who was among its "inner circle".

The truth about Abu Zubaydah

The Bush administration's false claim that my client was a top al-Qaida official has led to his imprisonment and torture

This article was submitted to the CIA prior to publication. Passages redacted by the CIA are marked [...].

Zayn al-Abidin Muhammad Husayn, more commonly known as Abu Zubaydah, is my client. After being extensively tortured by the CIA and imprisoned in various black sites around the world, Zayn may finally be approaching his day in court. I and my co-counsel welcome that day. But what if we are successful and establish that Zayn is not an enemy combatant? Would any country agree to take our client? The Bush administration's misrepresentations about Zayn make that virtually impossible unless I am allowed to tell his side of the story. This article is the first step in that reclamation process.

For many years, Abu Zubaydah's name has been synonymous with the war on terror because of repeated false statements made by the Bush administration, the majority of which were known to be false when uttered. On 17 April 2002, [...] President Bush publicly announced that Zayn had been captured: "We recently apprehended one of al-Qaida's top leaders, a man named Abu Zubaydah. He was spending a lot of time as one of the top operating officials of al-Qaida, plotting and planning murder."

Zayn's capture and imprisonment were touted as a great achievement in the fight against terrorism and al-Qaida. There was just one minor problem: the man described by President Bush and others within his administration as a "top operative", the "number three person" in al-Qaida, and al-Qaida's "chief of operations" was never even a member of al-Qaida, much less an individual who was among its "inner circle". The Bush administration had made another mistake.

These facts really are no longer contested: Zayn was not, and never had been, a member of either the Taliban or al-Qaida. The CIA determined this after torturing him extensively and [...]. Zayn was never a member or a supporter of any armed forces that were allied against the United States. He had no weapon when he was taken into illegal custody. He never took up arms against the United States nor against its coalition allies. He was not picked up on a battlefield in Afghanistan at the time of his detention, but was taken into custody in Pakistan, where he was wrongfully attacked, shot, and nearly killed. So serious were his wounds that a surgeon from John Hopkins University was flown to Pakistan to perform emergency surgery to save the life of a man the Bush administration believed to be the number three man in al Qaeda.

[...] Pulitzer Prize winning author David Suskind has reported that a knowledgeable CIA source wryly told him: "We gave [Abu Zubaydah] the best medical help in the world so we could start torturing him." Abu Zubaydah was tortured so vilely that even attorneys who are familiar with the administration's illegal actions over the years would be appalled. The government will not allow me to tell you what techniques of torture it approved for use on my client, but suffice it to say that given Zayn's treatment, it is not surprising that the videotapes of his torture were destroyed. Just recently, the government revealed that 90 of the 92 videotapes that the CIA destroyed related to our client.

Much attention has been paid to the notorious secret torture memoranda signed by James Bybee and Alberto Gonzales, authored by John Yoo, and championed by Vice President Cheney and his aide-de-camp David Addington. [...] 

The Senate armed services committee recently released a public report that establishes that almost immediately after Zayn's capture, a group of some of the highest-ranking government officials in the land met in the White House to orchestrate and oversee his torture, months before the now-infamous torture memoranda were issued in August 2002. The individuals involved in this activity included Vice President Cheney, former National Security Advisor Condoleezza Rice, former Secretary of Defense Donald Rumsfeld, former Attorney General for the Department of Justice John Ashcroft, and former Secretary of State Colin Powell. Aghast at the enormity of the government's willingness to approve torture, Ashcroft has been quoted as saying: "Why are we discussing this here? History will not judge us kindly." 

[...] but the public is prevented from seeing them due to policies of the administration that have nothing do with national security; instead they have everything to do with preventing embarrassment and shielding individuals from potential war crimes charges. Why is our client not allowed to tell his story? The government has admitted to waterboarding him, [...]. The government's description of what that entailed is categorically false, like so many statements about our client.

But why is it important that Abu Zubaydah be allowed to speak in his own behalf? If Zayn is ever to receive any form of justice, he must be allowed to proclaim his innocence and pave the way for his possible release. No country is likely to be willing to take someone accused of being the number three man in al-Qaida. It is possible, however, that with a new administration, some countries may be willing to consider accepting a man who always refused to join al-Qaida. 

Who is Abu Zubaydah? He was born in Saudi Arabia, but is not a Saudi citizen. He was educated in India. Following his university training, he traveled through the United States, considering possible universities where he might pursue his master's degree. In an interview with ABC, former CIA agent John Kiriakou described him as "a very friendly guy" who wrote poetry and was keen to talk about current events and compare the differences and similarities between Islam and Christianity. That has been my experience as well. 

Like many other young Muslims before him, Zayn ultimately embraced the teachings of the Qur'an and traveled to Afghanistan to fight against communist insurgents who remained after the withdrawal of the Soviet army. In 1992, while fighting on the front lines, he was injured in a motor attack that left him with two pieces of shrapnel that remain embedded in his head to his day. So severe were his injuries that he lost the ability to speak for more than one year. His memory is compromised even today. He cannot remember his mother's name or picture her face. He cannot remember his father's name, but recalls that he looked like a prominent movie star in the Arab community. Although Zayn ran a news agency with a partner, he cannot remember his former partner's name.

Later, when Zayn returned to the front lines, he was told that he was no longer fit for fighting because couldn't remember how to shoot a rifle. The Bush administration has widely alleged that Abu Zubaydah was the head of a military camp that trained terrorists. That allegation is false at all levels. Significantly, the camp in question, Khalden, was closed by the Taliban at the request of Osama bin Laden because the emir of Khalden (not Abu Zubaydah) refused to allow the camp to fall under the organisational control of bin Laden or al-Qaida. After repeated requests by the Taliban to require the camp to be controlled by bin Laden were refused, the Taliban ordered Khalden closed in 2000.

As with the weapons of mass destruction and the need for war in Iraq, it is no longer shocking to find that the Bush administration got it all wrong. Abu Zubaydah's supposed relationship with al-Qaida is a complete myth. In an ever-growing litany of horrors, the Bush administration tortured the wrong guy, just as it tortured my former clients, British residents Bisher al-Rawi and Jamil el-Banna and British citizen Martin Mubanga, who were returned to England without charge. But what additional evidence exists to support the assertion that Abu Zubaydah was never with al-Qaida?

First, my client has never been charged with any crime and is not facing a military commission trial as are, for example, most, if not all, of the individuals alleged to have played any roles in the attacks on the United States. If Zayn had been the chief operating officer for al-Qaida, it is virtually certain that he would be facing charges and the death penalty. Is it because he was tortured? That is not likely, because there is no real debate that all of the so-called "high value" detainees were tortured. The administration has admitted that it waterboarded both Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri, both of whom are facing criminal charges and the death penalty. So the fact of torture is not an impediment to filing charges against our client.

More importantly, the government is conducting a surreptitious but systematic purging of any reference to my client from the charge sheets and factual returns of other prisoners whose cases were being prosecuted. Abu Zubaydah has been linked to nearly 50 prisoners and former prisoners through media accounts and official Guantanamo Bay documents. Of these, approximately two dozen have either had their charges dropped or have been released from custody, including British resident Binyam Mohamed, who was recently released to British authorities without any charges. Before charges were dropped against Binyam Mohamed, Sufyian Barhoumi, Ghassan al-Sharbi and Jabran Sard al-Qahtani, each had their charge sheets redrafted to remove every reference to Abu Zubaydah.

Internationally, several individuals alleged to have known Abu Zubaydah have had their charges dropped, been released, or received other relief from their handlers. Abousfian Abdelrazik was alleged by the State Department to be closely associated with Abu Zubaydah. In 2008, Canada asked the United Nations to remove Abousfian Abdelrazik from its terrorism watch-list. Another prisoner, Mohamed Harkat, was supposedly even more closely related to Abu Zubaydah. Mohamed Harkat's attorney sought access to Abu Zubaydah for testimony relating to Harkat's trial, but the US refused to respond to his requests. In Harkat's Canadian trial, after Michael Hayden admitted that Abu Zubaydah had been waterboarded, Canadian officials deleted all references to Abu Zubaydah's alleged statements in its public dossier.

Mohamed Harkat was later released by Canadian authorities.
These are a sampling of what I believe are many other cases in which the administration has airbrushed Abu Zubaydah out of history - because ultimately he could not have been privy to the information the government alleged he had provided. That such evidence was obtained from an individual under torture was not an issue in 2002 when our client was a prisoner in CIA black sites and the administration was taking the position that prisoners had no legal rights. But the legal landscape has changed since then. Following the Supreme Court's 2008 decision inBoumediene v Bush, the administration finally realised that evidence procured by torture from an individual who was never associated with al-Qaida and had renounced the activities of al-Qaida was problematic.

What becomes of Zayn depends on whether the truth can be revealed to the public. Consistent with its position on other prisoners who were seized in error, such as the Canadian citizen Maher Arar, who was mistakenly arrested and sent to Syria for torture; the German citizen Khaled el-Masri, who was tortured in Afghanistan at a prison called the "Salt Pit" and eventually dumped alone on a road in Albania and left to make it back to his wife and home; the Bush administration never admitted to making any mistakes. Doing so would have opened it to criticism for not affording prisoners some legal process to argue their innocence before they were tortured. It was much easier simply to assert over and over again that only the "worst of the worst" were housed at Guantanamo.

History will look back at Guantanamo and find precious little to justify that charge. My best guess is that at the end of the entire process, not more than 25-30 actual trials will take place, out of the more than 1000 prisoners who have made their way through the prison camp.

Unlike Maher Arar and Khaled el-Masri, whose countries championed their return, no country is extending a hand to help a stateless Palestinian, given the administration's public statements about him. Unless the Obama administration allows me to negotiate openly on his behalf and provide officials with an actual account of his activity, he will continue to fade from view, which is, I fear, exactly what the administration wants.

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This page contains a single entry published on March 30, 2009 8:41 AM.

VIOLENCE, MORALITY AND POLITICS AFTER BUSH: Mark Danner Lecture in Berkeley on 4-2-09 at the Graduate Theological Union was the previous entry in this blog.

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