‘Abu Zubaydah is exhibit A of the Senate’s report. He is mentioned no less than 1,001 times.’ Photograph: AP
Even for those accustomed to the horrors of the CIA’s secret detention, torture and extraordinary rendition regime, the summary of the US Senate select committee on intelligence report makes chilling reading. It chronicles a systematic programme of prisoner torture and abuse, led by the CIA, but with the involvement of all levels of government and a multitude of other states. But it also reveals the extent of the misinformation surrounding the programme, and the pervasive sense of impunity that made it possible.

The report is the latest but not the last in a line of developments that are gradually prising open the truth about rendition. I am one of the legal representatives of Abu Zubaydah, a victim of that programme, in his proceedings against Poland and Lithuania before the European court of human rights. In a decision of 24 July, that court found Poland responsible for torture and secret detention by the CIA at a “black site” on its territory, and for failing to investigate and hold those responsible to account.

Abu Zubaydah might now be described as exhibit A in the week’s Senate report. He has the regrettable distinction of being the first victim of the CIA detention programme for whom, as the report makes clear, many of the torture (or “enhanced interrogation”) techniques were developed, and the only prisoner known to have been subject to all of them. With no less than 1,001 references to Abu Zubaydah specifically, the Senate report confirms the Strasbourg court’s findings regarding the horrific conditions of detention and interrogation techniques to which he and others were subject.

Among them were “wallings” (slamming prisoners against a wall), cramped confinement in boxes, sleep deprivation for up to 180 hours, usually nude and in stress positions, and waterboarding (which induced convulsions and vomiting). The waterboarding of Abu Zubaydah, to which the court notes he was subjected 83 times in one month alone, was authorised at the highest levels of government. It notes how “Abu Zubaydah became completely unresponsive, with bubbles rising through his open, full mouth”. The report concludes that “brutal” interrogations were far worse than the CIA represented to policymakers and others.

Beyond the torture itself, the report reveals how misinformation has been generated to justify the dehumanisation of “high-value detainees” including Abu Zubaydah. Several of the exorbitant CIA claims, in some cases reiterated long after they were known to be false, are rejected point by point in the report. Despite repeated assertions that Abu Zubaydah was “the third or fourth man in al-Qaida”, the report notes that the “CIA later concluded that Abu Zubaydah was not a member of al-Qaida”. Likewise, it refutes claims regarding his involvement in 9/11, that the interrogating team was “certain he was withholding information” and claims, widely publicised, that his torture led to valuable actionable intelligence. The rejection of the last of these claims as unsupported by CIA records led to the Committee’s overall finding that “based on a review of CIA interrogation records … the use of the CIA’s enhanced interrogation techniques was not an effective means of obtaining accurate information or gaining detainee cooperation”.

Guantánamo Bay detention camp in Cuba.
Guantánamo Bay detention camp in Cuba. Photograph: Mark Wilson/Getty Images
Today, 12 years after he was captured and subjected to this torture by the CIA, Abu Zubaydah, our client, remains in unlawful detention at Guantánamo Bay. He has had no review of the lawfulness of his detention, no criminal charges laid against him, no trial (despite his US counsel making a plea for him to be tried, noting that even trial by military justice is better than no trial at all), and he is not slated for trial. Instead, the US baldly asserts the right to detain him indefinitely under supposed “law of war” detention. The Senate report notes that, after taking custody of Abu Zubaydah, CIA officers concluded that he “should remain incommunicado for the remainder of his life”. Thus far, that is effectively what has happened. Despite evidence of his torture and secret detention, there has been no meaningful criminal investigation, no one has been held to account, and until the ECHR judgment this year, there has been no recognition of the violations of his rights.

Regrettably, the Senate report is heavily redacted so that the names of the states involved are withheld. But it is not difficult to identify the state to which he was transferred in December 2002, the date on which the ECHR found he had been transferred to Poland. Like the ECHR judgment, the Senate report reflects the existence of a “memorandum of understanding” between this state and the US to house a detention site. It records the state’s discomfort at one point, but says it later became “flexible with regard to the number of CIA detainees at the facility” following the intervention of the US ambassador and the transfer of millions of dollars. It records that officials of the state were upset, not at the discovery of unlawful detention or torture on its territory, but at the CIA’s “inability to keep secrets”.

In a galling twist, Poland has recently asked the ECHR to set aside its judgment and to refer the case to the court’s grand chamber, because it disputes the existence of a detention site. Throughout, it has maintained a policy of denial, refusing to cooperate with the court on secrecy grounds.

Since the Senate report, Poland’s position has begun to shift, with acknowledgments of the site but not what happened, exposing its disingenuity towards the court. The detailed and careful analysis by the Strasbourg judges of what the Warsaw government knew, and when, is already enough to demonstrate the implausible nature of Poland’s latest position. But the report throws Polish protestations (and those of other states) into much harsher relief. The court should dismiss Poland’s attempt to delay and obstruct justice for rendition victims.

Not only does Poland have an obligation to investigate and prosecute those responsible for rendition. For the other states which facilitated the practice, including the UK, where information pointing to knowledge and responsibility continues to emerge, investigation and prosecution is an international legal obligation not a policy alternative. It is time for victims of rendition such as Abu Zubaydah to be brought within the legal framework, to be either tried or released, to have the wrongs again them redressed, and for those responsible to be held to account.

Justice is best done by the states responsible. But where national courts fail, there is a continuing role for human rights courts to determine state responsibility, for courts in other states to judge individuals under universal jurisdiction, and ultimately also for the international criminal court. Truth, justice and accountability for these crimes against humanity are essential, not just for the individuals involved, but to reassert the relevance of the rule of law.

Helen Duffy, lawyer for Abu Zubaydah
The Guardian, Monday 15 December 2014 18.45 GMT

Find this story at 15 December 2014

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