The United Nations Working Group on Arbitrary Detention has released a report which methodically documents multiple grave breaches of treaties and bedrock international norms by the United States, including those forbidding torture, degrading treatment, arbitrary detention, and discrimination based upon religion or nationality. The report concerns our client, Abu Zubaydah, a Palestinian who grew up in Saudi Arabia. Mr Zubaydah was shot and captured in March 2002, waterboarded 83 times, held in boxes the size of coffins and smaller, administered forced enemas, deprived of food, clothing, and necessary medical attention, and subjected to sexual violence, among other cruelties dreamed up by people working for the CIA in the wake of September 11. After one waterboarding, he had to be resuscitated.
What monstrous officials would decide, having obtained nothing from 40, 50, 60, 70 sessions of waterboarding, that doing the same thing another ten or more times would somehow yield a different result? This was not the kind of evidence-based intelligence gathering so sorely needed in the face of the terrorism threat – rather, it was the brutal fumbling of amateurs using Mr Zubaydah as a guinea pig to win government contracts to interrogate the hundreds of captured detainees captured in the so-called war on terror. These methods were approved at the highest levels of the US Government. On display were the darkest impulses to push the bounds of human cruelty against the Other. After more than two decades, it is time for a moral reckoning.
At the time of his capture, Abu Zubaydah was considered “a member of Usama Bin Laden’s inner circle,” based upon a torture-induced statement from another detainee. Although that detainee later recanted, this false narrative continued to be the basis for Mr Zubaydah’s mistreatment and detention for years thereafter. He was tortured at “black site” prisons run by the CIA in Poland, Morocco, Thailand, Lithuania and Afghanistan.
In 2008, the US government conceded that Abu Zubaydah was not a member of Al Qaida. The United States had to admit it had gotten it wrong, after six years of torture. Presumably, an apology and quick repatriation followed, if not by the Bush Administration, then by the Obama or Biden Administrations.
Today, Abu Zubaydah remains at Guantanamo, never tried or charged, and in his twenty-second year of captivity. As recounted in the United Nations report, for the first 15 years of his detention there, Abu Zubaydah was held in “Camp 7, the most secretive and highest security camp within Guantanamo,” until it was finally closed in May 2021. There were reports of torture, abuse, and unlawful killing at Camp 7; communications among inmates were prohibited and medical care was “grossly deficient.” Abu Zubaydah has endured a serious decline in his mental and physical health, including injuries from torture, exacerbated by poor care.
The Working Group consisted of five leading international law experts and judges from friendly mainstream countries, including New Zealand and Ukraine. Its findings under international law were concise and unambiguous; it found that Abu Zubaydah’s detention was unjustified by the “law of war” or international humanitarian law and its claim that he is a continuing security threat is “speculative and unsubstantiated.” He was never afforded “an effective opportunity to be promptly heard by a judicial or other authority” to challenge the legality of his detention. “He has been denied access to his family, to his records or to independent medical evaluation or treatment. His prolonged detention with no indication of when if ever he will be released is in violation of the International Covenant on Civil and Political Rights, which the United States signed in 1992 – ten years before Mr Zubaydah’s capture. The Working Group also found that Abu Zubaydah was targeted for being a religious and ethnic minority. Evaluating the United States’ operation of Guantanamo, the report registered “grave concern about the pattern that all these cases follow” and warned that “widespread or systematic imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law may constitute crimes against humanity.” This is the first time that the United Nations has ever suggested its key founder was implicated in the most serious wrongdoing known to the international community.
The United Nations has no police force that can go to Guantanamo and pull Abu Zubaydah out of the essentially solitary confinement under which he has suffered for over two decades. While treaties to which the United States is signatory are part of American domestic law, there is no effective legal mechanism to balance human rights obligations against security concerns. There is not so much Guantanamo fatigue in this country as much as Guantanamo amnesia. Yet thirty-one men remain there after more than two decades, including Abu Zubaydah. The Biden Administration clearly has not made it a priority.
The Working Group report makes clear how much moral capital we have lost. We detain men without charges potentially forever and even after evidence has been discredited and allegations withdrawn. We torture men to the brink of death and beyond. We do this to foreigners and Muslims because they are foreigners and Muslims. Can we really talk about due process abroad anymore? Can we denounce countries that kidnap or imprison without charges or convict on trumped-up charges? Without moral authority, what does the United States mean to its citizens and to the global order? The Working Group Report lays down an unprecedented humanitarian challenge for this government. It must not miss this moment.
Eric Lewis is a human rights lawyer who sits on the board of The Independent.