I have defended men and women on death row for nearly all of my thirty years as a lawyer, and have represented people caught up in the excesses of the “war on terror” since very shortly after that war was launched. For more than a decade, I have been counsel for Zayn al-Abedin Muhammad Hussein, known more widely as Abu Zubaydah. Abu Zubaydah was the first person immured in a “black site,” the clandestine prisons operated around the globe by the CIA from early 2002 to late 2006. He was the first prisoner to have his interrogation “enhanced,” and the only person subjected to all the DOJ-approved interrogation techniques, as well as a number that were never approved (including, for example, rectal rehydration). The infamous torture memo was, in fact, written specifically to legitimize Abu Zubaydah’s torture.
At the time of his capture and for years afterward, government officials took great pains to demonize Abu Zubaydah in order to justify his abuse. “The other day,” President George W. Bush announced at a Republican fundraiser in April 2002, “we hauled in a guy named Abu Zubaydah. He’s one of the top operatives plotting and planning death and destruction on the United States. He’s not plotting and planning anymore. He’s where he belongs.” Various senior administration officials described Abu Zubaydah in comparably colorful terms.
These pronouncements, however, are not what set the torture scandal into motion. For that, we can thank a “psychological assessment” written by unnamed CIA officers and faxed to John Yoo, the Justice Department lawyer who was the lead author of the torture memo. This document described Abu Zubaydah as “the third or fourth man in al-Qaida” and “a senior Usama Bin Laden lieutenant” who had been “involved in every major al-Qaida terrorist operation” and was “a planner of the 11 September hijackings.” He “managed a network of [al-Qaeda] training camps,” “directed the start-up of a Bin Laden cell in Jordan,” and “served as al-Qaeda’s coordinator of external contacts, or foreign communications.” He was also alleged to be “engaged in ongoing terrorism planning against US interests.” For good measure, he had supposedly written the organization’s “manual on resistance techniques” and had a particular expertise in thwarting conventional interrogations. It was this assessment that provided Yoo with the “facts” needed to legalize the unlawful and rationalize the unthinkable.
And so Abu Zubaydah was tortured. As often as it has been repeated, the litany of this torture is still shocking. His captors hurled him into walls and crammed him into boxes and suspended him from hooks and twisted him into shapes that no human body can occupy. They kept him awake for seven consecutive days and nights. They locked him for hours in a freezing room. They left him in a pool of his own urine. They strapped his hands, feet, arms, legs, torso, and head tightly to an inclined board, with his head lower than his feet. They covered his face and poured water up his nose and down his throat until he began to breathe the water, so that he choked and gagged as it filled his lungs. His torturers then left him to strain against the straps as he began to drown. Repeatedly. Until, just when he believed he was about to die, they raised the board long enough for him to vomit the water and retch. Then they lowered the board and did it again. The torturers subjected him to this treatment at least eighty-three times in August 2002 alone. On at least one such occasion, they waited too long and Abu Zubaydah nearly died on the board.
The “facts” recounted above to justify this torture were all false. Abu Zubaydah was no lieutenant to Osama bin Laden. He held no position in al-Qaeda, senior or otherwise. He had no part in September 11 or any other al-Qaeda operations. He did not operate a network of al-Qaeda camps, open an al-Qaeda cell in Jordan, or manage al-Qaeda’s external communications. He did not draft any resistance manual, for al-Qaeda or anyone else, and had no special expertise in resisting interrogations.
The government no longer maintains that these assertions are true, and now concedes that Abu Zubaydah was never a member of al-Qaeda.
This was the conclusion of the Senate Select Committee on Intelligence, which undertook the most meticulous study of the torture scandal to date, eventually publishing a 500-page summary of its findings. The drafters reviewed more than six million pages of contemporaneous records, from the CIA and other sources, and concluded there was no support for any of these assertions. The CIA has likewise admitted error, and now affirms that Abu Zubaydah was not part of al-Qaeda. This is also the conclusion of the United Nations Security Council, which has removed Abu Zubaydah from its Islamic State and al-Qaeda sanctions list, based on the earlier recommendation of the UN ombudsman, who similarly concluded that Abu Zubaydah was not a member of al-Qaeda. And years ago, the Department of Justice withdrew all allegations that Abu Zubaydah had a connection to the September 11 attacks or played any part in al-Qaeda’s terrorism.
When I point this out, many people ask whether I am claiming that Abu Zubaydah is “innocent.” Here, they mean innocence in the Hollywood sense—the wrong-place-wrong-time sort of innocence that has acquired such purchase in American life. Do I maintain that Abu Zubaydah is innocent?
This preoccupation with my client’s innocence reminds me of conversations I have often had about capital punishment. The question that occurs to many people when they reflect on the death penalty is whether he (it is almost always a he) “did it.” Other questions—about the limits of state power, the fairness of the penalty, and the legality of the proceeding—simply do not arise. They do not matter so long as the accused committed the offense. The plain fact of guilt supersedes any constitutional qualms.
We have now brought this orientation to the new world we once designated “post-9/11,” but now simply accept as normal. Because the demonization of radical Islam has been uncritically embraced by a significant portion of the population and a great many of our elected officials, there is widespread (though not universal) agreement that the federal government may do things to followers of radical Islam that it would never do to a conventional offender—even one the government would seek to execute, like a domestic terrorist who blows up a federal building in Oklahoma City.
Thus, many people have come to accept that the government may “enhance” such a person’s interrogation in a way that their former selves would have called torture, and that it may hold him on a remote island without trial or meaningful legal process for the rest of his days. The only question that matters is whether the person falls within the forbidden category. If he does, then he is not “innocent” and his special fate is not only justified, it is salutary, regardless of the constitutional consequences. But if he does not belong to the category of radical Islamist, then he can be considered “innocent” and may be spared.
The tragedy of innocence-speak, whether in capital punishment or the post-9/11 world, is that it encourages a childlike fantasy that we live among saints and demons. And it compounds this folly by supposing that the challenge of our time is merely to separate the two as accurately as possible. Having satisfied ourselves that we have done so, we then grant the state the authority to impose nearly any penalty on those who fall on the wrong side of an imaginary line. The obsession with innocence encourages the transmogrification of a human being into a character in a Marvel Comics movie.
The short answer to the question “Is Abu Zubaydah Hollywood-innocent?” is that it doesn’t matter. At least, it shouldn’t. It shouldn’t matter in the legal sense, because if the law were humane, it would not authorize the government to imprison someone for the rest of his days unless he had some specific responsibility for the event that triggered our entry into this endless war. And it shouldn’t matter in the moral sense, because regardless of what he may have done, regardless of whether he is “innocent,” we should not authorize the government to treat him in a way that we would never tolerate if it were done to a dog, or to imprison him incommunicado, in a small, windowless cell, without charges or meaningful process, until he dies, forgotten by a world that has long since moved on.
But we do not live in the world that ought to be. We live in the world that is, and most people who ask whether Abu Zubaydah is innocent are not satisfied with what they regard as a non-answer. So for them, the answer is no.
Abu Zubaydah would describe himself as a mujahid, which means simply that he is engaged in jihad (literally, “struggle”). Like many others, he has long believed he has a religious obligation to come to the defense of other Muslims who have been attacked, even if the attack comes from an entity as powerful as a government. He has believed this for years, which is why he dedicated himself to the defense of Muslims in Afghanistan during its war against the Communists. And it was a piece of Soviet shrapnel that lodged in Abu Zubaydah’s brain in 1992 as he fought alongside his fellow Muslims against the Soviet-installed puppet government.
Back then, Ronald Reagan called the mujahideen “valiant freedom fighters.” He said we supported the mujahideen, and would continue to support them as long as it was needed, because “their cause is our cause: freedom.” Reagan made sure the mujahideen received funding from the CIA, and American leaders thought men like Abu Zubaydah were heroes of the anti-Soviet resistance.
After the Communist government in Afghanistan collapsed, bickering factions dragged the country into civil war. Like most mujahideen, Abu Zubaydah had no interest in a conflict that pitted Muslim against Muslim. But there were other places around the world where Muslims were under organized attack. Places like Bosnia. Because of his injury, Abu Zubaydah could no longer serve as a soldier; he simply lacked the physical and mental capacity. So he became a kind of mujahid travel agent. He coordinated the travel of other Muslims into Pakistan, and from Pakistan to a training camp on the Afghanistan-Pakistan border, known to the West as Khalden.
Contrary to what the United States believed when its agents tortured Abu Zubaydah, the government now agrees that Khalden was not an al-Qaeda camp. Under bin Laden’s influence, al-Qaeda considered any American a legitimate target, including innocent civilians. Abu Zubaydah, however, like the vast majority of mujahideen, rejected this extremist view; he believed then, and believes now, that attacks on non-combatants, whether American or otherwise, were and are explicitly forbidden by the Koran. (This is also why he believes, like most mujahideen of his era, that the actions of ISIS are an egregious violation of Islamic law.) Although Abu Zubaydah knew bin Laden, the two held irreconcilably opposing views of Islam. The ideological antipathy between bin Laden and the leadership at Khalden was widely known among the mujahideen in Afghanistan and Pakistan. It was precisely because of this antipathy that bin Laden forced the Taliban to close Khalden in 2000.
Khalden trained Muslim men to fight in the defense of other Muslims. The men who passed through the camp, however, like people everywhere, were free agents who could use their training as they deemed appropriate. Like most mujahideen, the majority of Khalden trainees went to places like Bosnia to defend Muslims under attack. Some, however, came under the sway of bin Laden and moved to camps run by al-Qaeda. And some of these men would later be recruited by al-Qaeda to take action against the United States. But the leaders of Khalden opposed al-Qaeda’s campaign. In fact, the man described by the United States as a former commander of Khalden, Noor Uthman Muhammed, who was arrested at the same time as Abu Zubaydah and who trained hundreds of men at the camp, was released from Guantanamo nearly five years ago.
Abu Zubaydah is thus not Hollywood-innocent. He helped facilitate the movement of scores of Muslim men to a camp that trained them in armed combat. Some of these men were later recruited by al-Qaeda. If the government believes this adds up to a legal indictment, my co-counsel and I will see them in court. We have demanded that he should be either charged or released. The government has never brought any charge against Abu Zubaydah, in either civilian or military court, presumably because it understands that he has committed no crime.
Instead, the United States is content that he should be forgotten, out of sight and out of mind. And for this, the government relies on people continuing to imagine him a monster. Because if he is a monster, the government was right to torture him. If he is a monster, it is not just lawful but good that he remains imprisoned indefinitely. If he is a monster, we may do with him what we will.
But there are no monsters. There is only us.
Joseph Margulies is a professor of law and government at Cornell University. He has been Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar & Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. Presently, he represents Abu Zubaydah, who was held in CIA black sites and whose interrogation in 2002 and 2003 prompted the Bush administration to draft the notorious “torture memos.” He is also the author of two books, What Changed When Everything Changed: 9/11 and the Making of National Identity (2013) and Guantánamo and the Abuse of Presidential Power (2006). (September 2018)