U.N. Condemns 21-Year Imprisonment of Abu Zubaydah as Arbitrary Detention and Suggests that Guantánamo’s Detention System “May Constitute Crimes Against Humanity”

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By Andy Worthington, May 2, 2023

Cross-posted from Andy Worthington's website.

In what strikes me as the single most devastating condemnation by an international body that has ever been issued with regard to the U.S.’s detention policies in the "war on terror" — both in CIA "black sites" and at Guantánamo — the U.N. Working Group on Arbitrary Detention has declared that the 21-year imprisonment of Zain al-Abidin Muhammad Husayn, better known as Abu Zubaydah, constitutes arbitrary detention, via the flagrant abuse of the relevant articles of the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, and has expressed "grave concern" that the very basis of the detention system at Guantanamo — involving "widespread or systematic imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law" — "may constitute crimes against humanity."

The U.N. also condemned other countries for their involvement in Abu Zubaydah’s arbitrary detention — specifically, Pakistan, where he was first seized, Thailand, Poland, Morocco, Lithuania and Afghanistan, where he was held and tortured in CIA ”black sites”, and the U.K. as "a State complicit in the extraordinary rendition programme that knowingly took advantage of it" (as discussed in a secret detention report by the U.N. in 2010, on which I was the lead author).

As the Working Group also explains, with reference to the British government, "The Intelligence and Security Committee of Parliament (United Kingdom) found, in 2018, that the Government had sent questions to interrogators and received intelligence obtained from detainees who the authorities knew or should have known had been mistreated. The parliamentary inquiry found that the United Kingdom had been directly aware of Mr. Zubaydah’s 'extreme mistreatment,' yet its intelligence agencies had provided questions for his interrogation."

However, while it is to be hoped that this condemnation will have a serious impact in these countries, it is the Working Group’s analysis of Abu Zubaydah’s treatment by the U.S. that is uniquely devastating, and that should, very clearly, not only lead to Abu Zubaydah’s release, as called for by the Working Group (along with reparations), but also to the release of other men still held at Guantánamo, and the implementation of a process, within the U.S., to hold accountable all those involved in his torture and the fundamental lawlessness of his treatment over the last 21 years.

What is particularly noticeable about the Working Group’s opinion — and where it breaks new ground in the most significant manner — is not primarily through its forensic analysis of his torture in the "black sites," which is well-documented, but how its equally forensic analysis of his treatment at Guantánamo, where he has been held without charge or trial since September 2006, demonstrates conclusively that he has been fundamentally deprived of any means to challenge the basis of his open-ended imprisonment without charge or trial, especially since the U.S. government conceded, back in 2008, that it had no actual evidence to justify his continued imprisonment.

Abu Zubaydah’s torture, and cruelty and injustice at Guantánamo

In the opening paragraphs of the opinion, the Working Group runs through his capture, the allegations regarding his significance and the way that evidence to the contrary was ignored, the key CIA request, before his torture began, that he "would remain in isolation and incommunicado for the remainder of his life," his torture in various "black sites," including, in Thailand, in August 2002, when he "was subjected to combined enhanced interrogation techniques almost 24 hours a day," including "266 hours in a coffin-size confinement box and 29 hours in a small confinement box," being "threatened with death and waterboarded at least 83 times, on one occasion having to be resuscitated."

The Working Group also highlights the inconvenient truths that, "In February 2008, the Government of the United States conceded that Mr. Zubaydah was not a member of Al-Qaida," that, "In 2017, he was removed from the Al-Qaida sanctions list," and that, "Despite the basis for his detention having been discredited, the Government continues to assert its right to detain him indefinitely."

After three and a half years in the five different torture sites, Abu Zubaydah was flown to Guantánamo, held in Camp 7, "the most secretive and highest security camp within Guantánamo," where "[c]ommunication between inmates was prohibited, causing serious psychological effects," where "[m]edical care was grossly deficient," and where "Mr. Zubaydah’s serious health conditions, including from injuries sustained during torture, were exacerbated by the denial of medical attention."

The Working Group also notes that he "has been repeatedly denied access to his records and to an independent medical evaluation and treatment, despite a United States court ruling to that effect in June 2020," and that he is subjected to "extreme secrecy measures." Elaborating, the Working Group explains that "[a]ny communication to or from Mr. Zubaydah must be declassified before being release" (as is the case with all Guantánamo prisoners, but especially so with all the so-called "high-value detainees," like Abu Zubaydah).

What I didn’t know, however, is that he "is not allowed telecommunication with family and has extremely limited access to the outside world," and that he "suffers distress due to his failing memories of his family," and it seems to me that this refusal to allow him to talk to his family can only be connected to the CIA’s requirement for him to "remain in isolation and incommunicado for the remainder of his life."

In addition, "Lawyer-client communication has been seriously impeded. Use of listening devices prompted the counsel of some other detainees to resign, but a judicial order prohibited them from explaining to their clients why. Privileged material has also been seized by the detaining authority, in a system in which lawyer-client privilege is not adequately respected."

No legal basis for Abu Zubaydah’s detention

At the heart of the Working Group’s findings is the stark fact that, in 21 years of imprisonment, Abu Zubaydah has never been "provided with a legal basis for his detention." The Working Group also states that "Mr. Zubaydah has always been detained without charge," and that "[t]he failure to lodge criminal charges, or to release him, amounts to arbitrariness," notes that his long years in the extraordinary rendition program "constituted enforced disappearance," and also notes that, "In the extreme circumstances of his indefinite detention without charge or trial, and with no apparent prospect of release," Abu Zubaydah’s right to life is being violated. As the Human Rights Committee has stated, "extreme forms of arbitrary detention [are] incompatible with the right to life. There is a right to life with dignity. The lack of agency and autonomy, and his inability to seek to influence his fate, embody the hopelessness of his situation."

As the Working Group explains, the U.S. government "asserts its right to detain Mr. Zubaydah pursuant to the ‘law of war’ authority, under the Authorization for the Use of Military Force (2001) and the National Defense Authorization Act," and "continues to allege this 'law of war' authority to detain Mr. Zubaydah until the cessation of hostilities, on the basis that the non-international armed conflict continues."

However, this justification "has no basis in international humanitarian law," because the U.S. government "has not demonstrated the existence of an armed conflict or that Mr. Zubaydah was taking an active part in hostilities," and, "Even if international humanitarian law were applicable, it could never justify indefinite detention during an endless war on an indeterminate enemy on the basis of ill-defined 'threats,' or for interrogation."

As the Working Group proceeds to explain, "If security detention can be justified outside an armed conflict, it is only under exceptional circumstances that require a present, direct and imperative threat, which has not been shown." Instead, "The indefinite detention of Mr. Zubaydah is indicative of arbitrariness," and "The true basis for the detention of Mr. Zubaydah is unknown."

In a particularly devastating paragraph, the Working Group notes that "[t]he Government of the United States has not shown that Mr. Zubaydah constitutes a security threat for which there is no option other than keeping him in detention for more than two decades without charges," referring to the U.S. government’s arguments as "speculative and unsubstantiated," and concluding that he "has been held in prolonged and indefinite detention for more than 20 years, without a legal basis, in violation of article 9 (1) of the [International] Covenant [on Civil and Political Rights]," which states, "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Habeas corpus thwarted

While the spurious detention authority under the AUMF applies to all the men held at Guantánamo, in June 2004, in Rasul v. Bush, the Supreme Court recognized that the men held at Guantánamo had no way of challenging the basis of their detention, and granted them habeas corpus rights — the right to ask a judge to impartially assess the basis of their imprisonment. Congress then sought to take those rights away, but in June 2008, in Boumediene v. Bush, the Supreme Court reasserted those rights.

Over the following two years, 38 prisoners had their habeas petitions granted, on the basis that the government had failed to establish that they were involved in any meaningful way with Al-Qaeda, the Taliban or other associated forces. in 2010 and 2011, however, politically-motivated appeals court judges passed a number of rulings that curtailed the prisoners’ habeas rights, reversing or vacating six those rulings, and ensuring that, since 2010, as the Working Group describes it, "no petition has been granted" (except one ruling in 2021).

In Abu Zubaydah’s case, as the Working Group explains, "On 6 August 2008, Mr. Zubaydah filed a habeas corpus petition with the United States District Court of Columbia. Years passed with motion after motion remaining undecided. A motion to recuse the judge for nonfeasance was mooted by reassignment."

"On 14 September 2009," the Working Group adds, "Mr. Zubaydah filed a motion for discovery and memorandum of law in support, but comprehensive discovery has still not been provided" — nearly 14 years later. In addition, "On 5 October 2018, he filed a notice to alert the Court that all pending motions were fully briefed and awaited action by the Court. A petition for a writ of mandamus in the Court of Appeals for the District of Columbia Circuit seeking an order to attend to the case was rejected."

"On 11 January 2018," the Working Group also explains, "a collective habeas petition was lodged by 11 detainees, including Mr. Zubaydah. The Government responded that detention was not indefinite but indeterminate. The collective petition has been rejected, although Mr. Zubaydah’s portion has to be ruled upon."

The inadequacy of the Combatant Status Review Tribunals and the Periodic Review Boards

The Working Group proceeds to explain how, shorn of habeas corpus rights, every other review of Abu Zubaydah’s case has been inadequate. The first review process, the Combatant Status Review Tribunals (CSRTs), which ran from 2004-05, and were followed, until the end of the Bush presidency, by similar Administrative Review Boards (ARBs), "could not review the lawfulness of detention and, as the Supreme Court of the United States acknowledged [in Boumediene], were an inadequate substitute for habeas corpus."

Abu Zubaydah’s CSRT took place on 27 March 2007. As the Working Group explains, "He was not provided a lawyer, but a one-time 'personal representative' — a military officer without legal training and with access only to unclassified evidence," while the government "relied on inculpatory evidence that had been recanted."

Under President Obama, prisoners’ cases were first reviewed, in 2009, by the Guantánamo Review Task Force, which is not mentioned by the Working Group, but was an administrative process in which officials from relevant government departments and the intelligence agencies recommended prisoners for release, prosecution or ongoing imprisonment without charge or trial. Abu Zubaydah was recommended for prosecution, but none of the prisoners were involved in the deliberations in any way, and nor could they challenge the findings against them.

Obama’s second review process, the Periodic Review Boards, was established in 2011, and began its deliberations in 2013, when Abu Zubaydah, and other prisoners recommended for prosecution by the task force, were shunted into the "ongoing imprisonment without charge or trial" category, largely because of the collapsing viability of the military commission trial system. As the Working Group explains, however, the PRB process "does not review the lawfulness of detention but a detainee’s 'threat level,' which is a non-legal standard."

As the Working Group adds, "Detainees have counsel and can present evidence, but, as Mr. Zubaydah’s hearings show, the process contributes to arbitrariness. Mr. Zubaydah’s first Periodic Review Board hearing was scheduled for 23 August 2016. Four attorneys with top-secret clearance represented him, but only one was allowed to appear. The lawyer’s request for a short adjournment or alternative counsel due to a relative dying was refused. The hearing proceeded with a personal representative, who was not a lawyer and was unfamiliar with the case. The Periodic Review Board declined to consider a report of the Senate Select Committee on Intelligence, which contained key information, such as the false nature of the allegations against Mr. Zubaydah. He was prevented from speaking during the 15-minute session. The Periodic Review Board found against him."

Four years later, in February 2020, Abu Zubaydah had a second PRB hearing, before a Board that "included a member of the Central Intelligence Agency and a member of the Office of the Director of National Intelligence," who duly decided that he "continued to pose a threat to the United States, based on unsubstantiated claims that could not be contested." Noticeably, in their analysis of why there is "[n]o legal basis for detention" in Abu Zubaydah’s case, the Working Group explains that he "had no opportunity to refute the presumptions of fact upon which the Periodic Review Board reached the conclusion that his detention was justified on security grounds," and elsewhere in the opinion the Working Group describes the CSRT and PRBs processes as a form of administrative detention, adding that "[a]dministrative 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."

Not mentioned by the Working Group is the fact that, in August 2021, he had a third PRB, but that, 17 months later, that Board has failed to issue a "Final Determination" in his case.

In addition, Abu Zubaydah has never been put forward for a trial. As the Working Group explains, he "has reportedly implored the Convening Authority of the Military Commissions and the Chief Prosecutor of the Military Commission to commence proceedings against him, but to no avail." As a result, he "is effectively a 'forever prisoner' with no forum to challenge, and seek to end, his arbitrary detention."

The cumulative effect of all of the above suggests that the CIA’s insistence that Abu Zubaydah must "remain in isolation and incommunicado for the remainder of his life" continues to have a particular impact on his case (via the obstruction of his habeas case, the refusal to let him communicate with his family, and the delay in his recent PRB decision), but what particularly interests me is how the markers of arbitrary detention in Abu Zubaydah’s case are replicated in the cases of 18 other prisoners out of the 29 other men still held at Guantánamo.

18 other cases of arbitrary detention at Guantánamo?

While there are severe problems with the cases of the other eleven men — all are torture victims; one, Abd al-Hadi al-Iraqi, who has agreed to a plea deal is the subject of a separate U.N. opinion regarding his profound and life-threatening medical neglect, and the other, Ali Hamza al-Bahlul, convicted in a one-sided trial in 2008, is serving a life sentence in unintended but clearly barbarous solitary confinement — the cases of the other 18 all seem to demonstrate that they too are the victims of arbitrary detention.

Two of the 18 — Abu Faraj al-Libi and Muhammed Rahim, who were also tortured in "black sites" — also continue to be held as “forever prisoners,” their ongoing imprisonment without charge or trial repeatedly approved by Periodic Review Boards, while the other 16, although approved for release by PRBs (or in three cases by the Guantánamo Review Task Force) have been subjected to the same catalog of lawlessness as Abu Zubaydah — determined to be "enemy combatants" through the "inadequate" CSRTs, denied habeas corpus by the appeals courts judges who shut habeas corpus down in 2010, and, with the exception of the three men approved for release by the Guantánamo Review Task Force, but still held 13 years later, deprived of any legally binding process via the PRBs, even though all were eventually approved for release.

As noted above, the Working Group stated, in Abu Zubaydah’s case, that "[t]he failure to lodge criminal charges, or to release him, amounts to arbitrariness" — and the same must therefore be true of all the other men still held who have never been charged. As is also stated in the opinion, "Since the terrorist attacks upon the United States on 11 September 2001, the Working Group has developed a body of legal analysis and jurisprudence reaffirming that the prohibition of arbitrary detention is a peremptory norm (jus cogens) of international law from which no derogation is permitted and that the prolonged and indefinite detention of individuals at Guantánamo violates that prohibition."

In addition — and in conclusion — what particularly intrigues me is the paragraph in the Working Group’s opinion regarding other prisoners at Guantánamo, and its observation about "crimes against humanity."

The paragraph in question states that, "While the Working Group has specifically addressed Mr. Zubadyah’s circumstances in this opinion, the conclusions reached here also apply to other detainees in similar situations at Guantánamo. Over the past 15 years, the Working Group has addressed several cases of detention at Guantánamo. 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."

Crimes against humanity. To the best of my knowledge, this is the first time — in an opinion full of firsts — that these grave crimes have been described as taking place at Guantánamo, involving, I presume, "imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law."

Campaigners for the closure of Guantánamo have long regarded what has taken place there over the last 21 years as extraordinarily grave crimes, and in some ways it can only be wondered why it has taken so long for the Working Group on Arbitrary Detention to reach its conclusion. Now that it has, however, the Biden administration needs to feel the full heat of international condemnation, although sadly the mainstream media don’t seem to be interested in helping out. Although Twitter was buzzing when the Working Group’s opinion was published, no mainstream U.S. media outlet has reported the story, and only the Guardian has acknowledged it.

I hope my contribution helps to address this shameful and unforgiveable lack of media interest. Please share it widely if you think it deserves to be better known.