It’s been 19 years since U.S. forces captured Zayn al-Abidin Muhammad Husayn and declared him one of the senior leaders of al Qaeda. It’s been 15 years since the CIA quietly revoked that assessment once it was done torturing him. Today, Huseyn, a forgotten man, remains locked inside Guantanamo Bay, a living symbol of the permanent damage wrought by the War on Terror.
As the Biden administration performs the latest government review into closing Guantanamo, attorneys for Husayn, better known as Abu Zubaydah, have decided they’ve waited long enough. They filed a petition on Friday with the U.N. Working Group on Arbitrary Detention seeking his release from his 19 years of captivity. They want the panel to exercise its “urgent actions” procedures to appeal to Washington for his freedom, citing his counsel’s “serious concerns for his physical and mental health and welfare [stretching back] for years.”
The attorneys note that the military has yet to vaccinate Abu Zubaydah and the other Guantanamo detainees for COVID-19. “After 19 years of arbitrary detention, the only appropriate legal remedy for Abu Zubaydah is release and rehabilitation,” said the lead lawyer behind the U.N. appeal, Helen Duffy.
The U.N. is an unlikely route through which Abu Zubaydah might go free, but nothing else has worked, including a federal habeas corpus case. The few consistencies in Abu Zubaydah’s Kafkaesque past 19 years have nothing to do with the law and everything to do with the prerogatives of covering up what the U.S. did to him. In 2018, one of Abu Zubaydah’s habeas attorneys marveled that his unlikely goal was to get the U.S. to prosecute his client—just so Abu Zubaydah’s permanent incommunicado captivity would end.
Once Abu Zubaydah was said to be one of the most important al Qaeda captives of all. An infamous August 2002 memo from the Justice Department, instrumental to authorizing the CIA to torture him—and after him, at least 118 others—called him the “third or fourth man in al Qaeda.” But there were doubts inside the CIA at the outset. According to the landmark Senate torture report, on Aug. 16, 2006 the agency formally concluded that Abu Zubaydah “was not a member of al Qaeda.”
Instead of freeing him, the U.S. brought Abu Zubaydah to Guantanamo Bay the following month, where he became the forgotten man he currently is. Some politicians, like Rep. Elissa Slotkin (D-MI), a former CIA analyst and Pentagon official, have recently declared that the 9/11 era is “over.” But Abu Zubaydah’s ongoing and entirely uncontroversial confinement proves the opposite. He is one of 40 men, few of them charged with any crime even before a dysfunctional military tribunal, who languish at Guantanamo Bay. Abu Zubaydah’s captivity has influenced every one of them.
Abu Zubaydah came into U.S. custody after a gunfight in Faisalabad, Pakistan, that left him badly wounded in his stomach, leg, and testicles. One of his FBI interrogators, Ali Soufan, wrote in his 2011 book The Black Banners that Abu Zubaydah was “not a member of al Qaeda,” but still an important figure, tied to the eastern Afghanistan terror training camp known as Khalden, helping jihadists transit out to Pakistan. The origin of the claim that Abu Zubaydah was one of the seniormost members of al Qaeda, according to the Senate’s 2014 report, was “single-sourced reporting” from the CIA that “was recanted prior” to the Justice Department’s 2002 torture memos.
Soufan famously lost a bureaucratic fight with the CIA against torturing Abu Zubaydah. The CIA, through contractors James Mitchell and Bruce Jessen, instead wanted to beta-test a regimen of brutality meant to induce a psychological concept called “learned helplessness.” It meant, among other tortures, locking Abu Zubaydah in coffin-sized and even smaller boxes for 12-1/2 cumulative days; keeping him awake for extended periods through painful body contortions; and, 83 times, drowning him through a simulation called waterboarding. The ostensible point was to get Abu Zubaydah to reveal al Qaeda secrets that they were unswervingly and baselessly certain he possessed.
There were more vindictive impulses as well. One of the CIA’s waterboarders was known as the “Preacher,” Mitchell later testified at Guantanamo, who would douse men’s heads in a pantomimed baptism, an assertion of religious domination. CIA records from Abu Zubaydah’s August 2002 interrogations, published in the Senate torture report, record extreme discomfort among other CIA personnel, “some to the point of tears and choking up.” Abu Zubaydah, in one of his few public statements, recalled that his waterboarders would mock him in between submergings. “I tell him, ‘If you want to kill me, kill me,’” he said.
The Senate torture report records that Abu Zubaydah was almost instantly “compliant.” CIA medical staff found that he was willing to cooperate even before he was tortured. But the brutality was so severe that within days of the “aggressive phase” of his interrogation, Abu Zubaydah would go to the waterboard when his interrogator “snapped his fingers twice.” He would frequently spasm and grow hysterical from the drownings. At least one of them, per the torture report, left him catatonic and unresponsive, with bubbles forming in his “open, full mouth.”
It took six days, on Aug. 9, for CIA interrogators on scene to conclude that Abu Zubaydah had no actionable intelligence. The next day, they re-emphasized it was “highly unlikely” he had the sort of information they sought. When an apparently frustrated CIA official warned Langley they were at the “legal limit” of what they could do to Abu Zubaydah, the head of the Counterterrorism Center, Jose Rodriguez, responded on Aug. 12 that “any speculative language as to the legality of given activities” was “not helpful.” Years later, Rodriguez and his deputy, who had been one of the chiefs of the Thailand black site where the CIA first tortured Abu Zubaydah, destroyed over 90 videotapes of Abu Zubaydah’s torture. The deputy and black site chief, Gina Haspel, went on to become CIA director, from 2018 to January 2021.
Within months of Abu Zubaydah’s torture, versions of his torture regimen were used first on other CIA captives and then, in modified form, on military detainees at Guantanamo Bay, Afghanistan, and Iraq.
Captivity by the U.S. cost Abu Zubaydah an eye—it remains unclear exactly how—and a testicle. In 2007, during a nonjudicial hearing at Guantanamo Bay, he bemoaned that he was “losing my masculinity. Even my beard is falling out.” He apologized, saying that “I don’t like to admit I’m a sick person… almost half of my body is not good.” The Justice Department 2002 torture memo has been criticized for permitting the CIA to inflict pain up to the limit of “organ failure” or long-term psychological damage. Even by those highly narrow criteria, Abu Zubaydah surely qualifies as having been tortured.
In the same hearing, he described “another form of torture”: his separation from the diary he kept for 16 years. Everything the U.S. would need to “refute the accusations against me” is in that diary, which the U.S. took from him, he said. In Abu Zubaydah’s telling, he was a Pakistan-based coordinator of “two guest houses” to get trainees in and out of the Khalden camp. There they would train in “defensive jihad,” by which he meant striking military targets of non-Muslim invaders of Muslim land, “Russia against Chechnya, and of course, Israel against Palestine.” Abu Zubaydah, who was not himself a trained fighter, said he thought bin Laden was too brutal: “Bin Laden wanted al Qaeda to have control of Khalden, but we refused, since we had different ideas.” Seemingly referring to his CIA captors, he told the Guantanamo officers, “They told me, ‘sorry, we discover that you are not No. 3, you are not even a fighter.’”
The War on Terror was disinterested in the distinctions between self-described facilitators of jihadi trainees and al Qaeda. Even taking the CIA at its face-value assertion that its torture program was about intelligence production and not revenge, Abu Zubaydah’s case demonstrates that the CIA predicated its torture program on a false test case, a man whom the CIA brutalized before admitting he was not who they thought he was.
That, Abu Zubaydah’s lawyers suspect, is why the U.S. has never charged Abu Zubaydah with an offense in either military or civilian court. “Had those assertions been true,” wrote attorney Charles R. Church in 2018, “Abu Zubaydah would have been prosecuted long ago rather than being immured in a top-secret military prison.” Before Abu Zubaydah’s torture, according to the Senate torture report, the CIA’s Bin Laden Unit reported that “all major players are in concurrence that [Abu Zubaydah] should remain incommunicado for the remainder of his life.”
In that respect, their campaign worked. Abu Zubaydah has had practically no contact with the outside world. Much of what has emerged has been his disturbing artwork depicting naked men strapped to chairs and stuffed into coffins while watched by men clad all in black. In 2016, the military’s assertions against Abu Zubaydah were downgraded to running a “mujahideen training network,” “possibly” knowing in advance about the 1998 bombings of two U.S. embassies, and other aspects of what the New York Times called a “much-modified but still rather vague description of his history.” Yet the military continued to detain Abu Zubaydah without charge, and inspired little outrage. There is only so much attention the world has shown it is willing to pay to those inside Guantanamo Bay. It pays less with each passing year.
Yet Abu Zubaydah has also won vindications. In 2015, the European Court of Human Rights ordered Poland, which hosted the second black site where the CIA held Abu Zubaydah, to pay restitution. Lithuania, which hosted Abu Zubaydah’s captivity from February 2005 to March 2006, appears to be stonewalling on a similar investigation, although the court already ruled Lithuania to be complicit in Abu Zubaydah’s torture. In December 2017, the U.N. formally removed Abu Zubaydah from its al Qaeda blacklist. And this week, the Supreme Court agreed to hear a case emerging from Abu Zubaydah’s European human-rights litigation that tests the government’s powers to block him from obtaining testimony from Mitchell and Jessen on state-secrets grounds.
The U.N. panel on arbitrary detention has no power to compel the Biden administration to release the now 50-year old Abu Zubaydah. In February, the administration said it has a review underway to determine how it will close Guantanamo, distinct from its broader counterterrorism review. A senior administration official did not provide The Daily Beast with more information about the timetable for the review or subsequent action, saying only that its review is broadly consultative across the government. The U.S. military’s Southern Command, which oversees Guantanamo, reiterated that it is committed to “safe, humane and legal” detentions.
“The torture and detention without charge or trial of Abu Zubaydah for 19 years epitomizes the worst of the War on Terror,” said Duffy, his attorney. “As the 20th anniversary looms, it’s past time to release him, to reveal the truth about his case, and to commit to effective security based on the rule of law.”