U.N.: Free Abu Zubaydah—and Pay Him

Edited by Sam Thielman

A United Nations panel has concluded the 21-year U.S. detention of Zayn al-Abidin Muhammad Husayn, the forever prisoner known as Abu Zubaydah, is "without legal basis," and says Washington must both free and compensate the first person the CIA tortured after 9/11.

"The Working Group considers that, taking into account all the circumstances of the case, the appropriate remedy would be to release Mr. Zubaydah immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law," concluded the United Nations Working Group on Arbitrary Detention, according to a draft report obtained by FOREVER WARS and dated March 30.

These are some of the most strident acknowledgements of U.S. lawlessness during the War on Terror yet reached by an international body. The U.N. Working Group found that Abu Zubaydah's "detention in essentially incommunicado conditions amounts to an enforced disappearance, at least during the period that he was deprived of a meaningful opportunity to communicate with his family and/or the outside world."

The report, released today by the U.N., determined that the culpability for Abu Zubaydah’s mistreatment lies not only with the U.S., but also with partner nations in the War on Terror including Thailand, Poland, Lithuania, Morocco and Afghanistan. (I'm curious to see how—and whether—the Taliban will address inheriting institutional responsibility for the torture of Abu Zubaydah from the U.S.-backed government it overthrew.) Perhaps most notable among them is the U.K., which unlike Poland or Lithuania has not previously been assessed as complicit in Abu Zubaydah's case by an international body. The Working Group found that the December 2002 CIA rendition flight taking Abu Zubaydah from Thailand to Poland refueled in London, and it references a parlaimentary finding that the U.K. intelligence provided questions to the CIA for Abu Zubaydah's interrogation.

While the report is preoccupied with Abu Zubaydah, the Working Group says its censure "also appl[ies] to other detainees in similar situations at Guantánamo." Then the report uses a term that, as best I can tell, no international body has applied to the U.S. during the War on Terror.

"The Working Group expresses grave concern about the pattern that all these cases follow, and recalls that under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law may constitute crimes against humanity," it states. (My emphasis.)

The report, reiterating an earlier finding by a different U.N. body, dismisses American claims of the lawfulness of Abu Zubaydah's detention as "speculative and unsubstantiated." In August 2006, the U.S. quietly abandoned its assertion that Abu Zubaydah was ever a member of al-Qaeda, an organization to whom the Authorization to Use Military Force applies, let alone the "number three" figure in the organization, as the Bush administration had claimed. The very next month, it shipped him to Guantanamo Bay, where he's been ever since.

I've written so much over the years—decades, now—about Abu Zubaydah's torture that I don't really want to detail it yet again. This is a person tortured so extensively that, the 2014 Senate torture report records, he would lay down on the waterboard when one of his torturers snapped their fingers twice. The CIA medical "support" branch, complicit in the post-9/11 torture program, concluded that "in retrospect" Abu Zubaydah would probably have cooperated with his interrogators pre-torture. If you still want the snapshot version of what they did to Abu Zubaydah after reading this paragraph, read this piece of mine.

"This is a really important judgment for our client, but a really important decision beyond that. It's a reminder of the complete lawlessness of Guantanamo and Abu Zubaydah's situation in particular," said Helen Duffy, the international human-rights attorney who brought Abu Zubaydah's case to the Working Group. "It's important that [the U.N. Working Group] makes clear that the only appropriate legal remedy for Abu Zubaydah is immediate release [and] that there's no possibility of a fair trial for him at this point. Beyond that, for other detainees as well, the continued existance of Guantanamo is itself described as being arbitrary, as amounting to torture and even forced disappearance. It's a really profound indictment of where we are."

UNLIKELY AS IT IS that the Biden administration or any other U.S. administration would free Abu Zubaydah because the U.N. said so—and unlikelier still that they would pay him reparations—Duffy and his other attorneys appealed to the U.N. working group because, as I reported for The Daily Beast in 2021, none of the legal channels available to Abu Zubaydah in theory were available to him in practice. "Mr. Zubaydah has had no judicial review of his detention, despite the Supreme Court ruling recognising the right to habeas corpus," the U.N. working group observes.

He has never been charged with any offense, neither in the U.S. military tribunals at Guantanamo Bay nor anywhere else, and it's safe to say, 22 years after his capture, that he never will be. No one can say what his next Periodic Review Board at Guantanamo will decide, or when they will decide it; his last one was in 2020. "Administrative detention to address a security threat will normally amount to arbitrary detention when other effective measures, such as the criminal justice system, are not utilized," notes the U.N. working group.

One reason why the U.S. has subjected Abu Zubaydah to such arbitrary detention is found in a 2002 CIA cable sent ahead of his torture. Referenced in the 2014 Senate Torture Report, it instructed, "especially in light of the planned psychological pressure techniques to be implemented, we need to get reasonable assurances that [Zubaydah] will remain in isolation and incommunicado for the remainder of his life." The U.N. draft report references Abu Zubaydah's arbitrary detention as an attempt to "silence" him—an arbitrary detention that, the U.N. finds, "amount[s] to torture” in and of itself.

Nor have the courts approved anything that grants Abu Zubaydah a measure of justice. Last year, the Supreme Court, led by the since-departed liberal justice Stephen Breyer, helped the CIA continue to cover up the torture it inflicted on him starting in 2002, which had the explicit blessing of the Justice Department and the backing of the Bush administration as a matter of policy. A future director of the CIA, Gina Haspel, took over the first black-site where Abu Zubaydah was tortured a few months into his brutalization. The Justice Department let Haspel slide for destroying over 90 videotapes detailing how they tortured him.

(By the way, the prosecutor who chose not to charge her, or her boss, Jose Rodriguez? That was John Durham. Anyway.)

What happens now? The U.N. working group "requests" the U.S. and affiliated governments to release and pay reparations to Abu Zubaydah. It has no means of enforcing its request. It "urges" those governments to perform investigations into Abu Zubaydah's detention and torture and "to take appropriate measures against those responsible for the violation of his rights," as if the U.S. would do any such thing. One of those responsible for the violation of his rights, I reiterate, went on to be the director of the CIA.

Duffy, the member of Abu Zubaydah's legal team, recognizes that the Working Group is "no panacea. We never thought this was going to solve Abu Zubaydah's situation or itself close Guantanamo. That would be unrealistic." But she highlights the Working Group's finding of shared culpability across seven different nations. "All states that contributed to this situation have to step up and bring it to an end," Duffy said. At one point in its discussion of Poland's responsibility, the draft report urges Poland to "facilitate release and resettlement" of Abu Zubaydah. That would be a potential endgame for a 22-year arbitrary detention.

"I think this decision should be a catalyst to move forward with something the Biden administration has said it's committed to anyway. International law requires the U.S. to meet its obligations, release Abu Zubaydah and close Guantanamo," Duffy said. "There's a broader message to the U.S. and all states: to use this moment for serious reflection and reckoning for this case that epitomizes the worst of the War on Terror, and the need to finally grapple with the serious mistakes and abuses of the past, so we can learn lessons for the future."

Indeed, the U.N. working group takes a shot at Biden over the endurance of Guantanamo (which is the subject of my next column for The Nation): "The closure of Guantánamo was previously an important priority of the Government. The Working Group urges the Government to once again prioritize closing that facility."

EVERYONE TAKE THE TIME TO READ SAM'S NEW YORKER PIECE. In what I can only describe as the most Sam Thielman piece to ever exist, he's produced a gorgeously written exhumation of an Argentine genre-fiction legend, Héctor Oesterheld, whom the Junta disappeared in 1977 and murdered.

When Oesterheld disappeared, he became the kind of global symbol he had helped make of Che Guevara and Evita Perón. In Belgium, Amnesty International published a comics anthology entitled “Pétition—À la Recherche d’Oesterheld et de Tant d’Autres!” (“Petition—In Search of Oesterheld and So Many Others!”) The drawing on the cover, by the Belgian spy-comics star William Vance, showed Oesterheld being taken away at gunpoint. At the 1980 Salone Internazionale dei Comics, a prestigious festival in Lucca, Italy, Oesterheld was given the festival’s highest award, the Yellow Kid, named for Richard Outcault’s pioneering newspaper comic strip. No one could say for sure whether the award was posthumous.

TIM MAK, a very good reporter whom NPR recently laid off, has started a newsletter he'll be reporting from Ukraine, The Counteroffensive. I immediately flashed on the War on Terror freelance correspondents who did this sort of thing 20 years ago through blogs, and subscribed. You should too.

WESLEY LOWERY wrote a superb Columbia Journalism Review essay about the dead hand of Objective Journalism, born of an obsolete business model that lasted so long its prerogatives for what is and isn't professional are taken for granted as the only responsible way to conduct journalism, holding back the journalism that needs to happen in an era of democratic peril (I would add persistent economic precarity and endless war). Lowery reminds the dead-handers not to take Walter Lippmann's name in vain, while also recognizing how compromised a figure Lippmann was. (In the process, Lowery exhumes a Ronald Steel quote about democracy that strikes me as so flagrantly ahistorical that now I want to reread Walter Lippmann And The American Century.) Best of all, Lowery gets devastating line after devastating line in on Marty Baron. If there's one thing I respect down to the most fundamental essence of myself, it's avenging yourself upon the works of the media figures that fucked you over. Particularly when they're named Marty.

MORE ON THE CHUDLEAKS GUY. From the New York Times, writing off the latest legal filing in Jack Teixiera's impending prosecution:

Prosecutors also made public a series of social media posts from 2022 and 2023 in which Airman Teixeira expressed his desire to kill a “ton of people” and cull the “weak minded,” and described what he called an “assassination van” that would cruise around killing people in a “crowded urban or suburban environment.”

The U.S. military is the finest fighting force on the planet when it comes to ignoring an internal problem it has no desire to confront.

WOE IS ME FOR MISSING THE JAI PAUL SHOW in Queens, but I liked reading Giri Nathan's report.

[B]eing picky about the venue of a Jai Paul show is like complaining about the wrapping paper on a gift you've been waiting for most of your adult life. See the words "Jai Paul show" and do not sweat the logistics. That such an event would occur at all, and occur in our city, was intrigue enough. As a result, the entire critical apparatus of this crowd was dismantled for these 45 minutes. An atmosphere this supportive is typically reserved for a four-year-old playing her first soccer game, or perhaps an elder taking his first steps after a double-hip replacement. It was more wholesome than the base sycophancy I've seen at some shows, where blind standom exonerates a half-assed performance. Jai was trying hard at something new; the crowd was nurturing him. Nowhere else will you feel a mass of several hundred New Yorkers channel such unadulterated "You got this, bud!"

The show sounds like it was in some senses underwhelming—"[i]n the rougher parts of this set, I could sense my body registering any misalignment between the studio version and the live version as a vague restlessness in my legs"—but what a precious thing is a sloppy set by someone who never performs and almost as rarely releases music but when they do it's incredible.