Marcy Wheeler: Hiding Abu Zubaydah, Hiding the Failures of the Torture Regime

By Marcy Wheeler, emptywheel

On May 9, the Convening Authority for the Gitmo military commissions signed charges against five detainees alleged to be responsible for 9/11. Yet, in spite of the fact that George Bush named Abu Zubaydah in a September 2006 speech in which he promised to “bring these people to justice,” Zubaydah was not included among those charged. Zubaydah remains, more than six years after he was first detained, uncharged.

Torture and America

Don’t get me wrong. It’s not that I think the military commissions are in any way adequate vehicles to try Gitmo detainees alleged be terrorists (a problem the ACLU has tried to address). But it seems that Zubaydah remains in limbo precisely because he embodies the failures of the nation’s embrace of torture.

There are several ways that Zubaydah’s experience demonstrates the failure of the nation’s torture regime. As Dan Coleman, one of the FBI’s top Al Qaeda experts, relates in Ron Suskind’s One Percent Doctrine, Zubaydah was crazy,

The guy is insane, certifiable, split personality.

Moreover, Zubaydah wasn’t as important to Al Qaeda as Administration figures have claimed—Coleman described him as kind of a travel agent. Yet the Administration chose this figure, a mentally unstable man with little knowledge to offer, to test out its theories of enhanced interrogation.

Worse still, the torture didn’t work. Bush himself admits that, before the CIA used enhanced interrogation, Zubaydah revealed information that led to the capture of Khalid Sheikh Mohammed.

Zubaydah disclosed Khalid Sheikh Mohammed — or KSM — was the mastermind behind the 9/11 attacks, and used the alias “Muktar.”

Yet once the CIA started torturing Zubaydah, according to Coleman, the information became unreliable.

“I don’t have confidence in anything he says, because once you go down that road, everything you say is tainted,” Coleman said, referring to the harsh measures. “He was talking before they did that to him, but they didn’t believe him. The problem is they didn’t realize he didn’t know all that much.”

In a court hearing, Zubaydah himself agreed when asked whether he made false statements to make the torture stop.

So I understand that during this treatment, you said things to make them stop and then those statements were actually untrue, is that correct?

Yes.

Zubaydah’s experience demonstrates all the reasons why torture is a failed, immoral policy, And the Administration seems intent on eliminating all evidence of those failures.

In January 2003, according to a document revealed in response to an ACLU court challenge, the CIA started an investigation of its own interrogation and detention policies. In May of that same year, the CIA’s investigators traveled to another country to view the tapes of Zubaydah’s interrogations. The following year, in May 2004, the CIA completed its report. According to a New York Times article, the report concluded that the interrogation practices used constituted, “cruel, inhuman and degrading treatment” in violation of the Convention Against Torture.

The same month the CIA completed its report, the CIA discussed destroying the tapes with top Administration officials. Then, in November 2005, within days of the New York Times article revealing the conclusion of the CIA’s investigation, the CIA destroyed the tapes of Zubaydah’s interrogation.

Not only did the CIA destroy evidence of Zubaydah’s torture. They prevented other investigators from speaking to Zubaydah personally. The Department of Justice report on interrogation methods released this week revealed that—alone of all “High Value Detainees” at Gitmo—the CIA refused to allow DOJ’s investigators to speak with Zubaydah.

When the OIG investigative team was preparing for its trip to GTMO in early 2007, we asked the DOD for permission to interview several detainees, including Zubaydah. The DOD agreed, stating that our interviews would not interfere with their attempts to obtain any intelligence from the detainees, including Zubaydah. However, the CIA Acting General Counsel [John Rizzo] objected to our interviewing Zubaydah. [three lines redacted]

In addition, the CIA Acting General Counsel asserted that the OIG had not persuaded him that the OIG had a “demonstrable and immediate need to interview Zubaydah at that time” given what the Acting General Counsel understood to be OIG’s “investigative mandate.” In addition, the CIA Acting General Counsel asserted that Zubaydah could make false allegations against CIA employees.

The DOJ report revealed that one of the FBI interrogators who first worked with Zubaydah judged the CIA techniques to be “borderline torture”—long before the CIA water-boarded Zubaydah. Yet the CIA would not permit DOJ’s investigators to confirm even this aspect of the treatment with Zubaydah himself.

Now, perhaps the Administration plans to charge Zubaydah with something else. Perhaps they will justify their excuse for torturing him, that he was a high level operative. But thus far, the Administration seems more interested in hiding the real evidence on Zubaydah: that they tortured a man, and that torture proved useless.