The CIA tortured Abu Zubaydah, my client. Now charge him or let him go Abu Zubaydah has now been held incommunicado for 12 years without trial. This is gross injustice

‘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

© 2014 Guardian News and Media Limited or its affiliated companies. All rights reserved.

Meet the Arab-American lawyer who the NSA spied on–back in 1967

Abdeen Jabara was hardly shocked when the scandal over the National Security Agency’s global surveillance dragnet broke in June.

“I was not at all surprised by the Snowden revelations about the NSA,” Jabara, a prominent lawyer and a founder of the American-Arab Anti-Discrimination Committee, told me in a phone interview. “The United States has this huge, huge international surveillance apparatus in place and after 9/11 they were going to use it as much as they could as part of the war on terror. It was just too tempting.”

He would know–he’s lived it. Jabara is one of many Americans to have been personally spied on by the NSA decades ago. A court battle that started in 1972 eventually forced the secretive surveillance agency to acknowledge that it pried into the life of an American in an effort that began in August 1967. The disclosure was the first time the U.S. admitted it had spied on an American.

Jabara’s story lays bare the deep roots of the NSA’s surveillance. Today, with the NSA operating under the ethos of “collect it all,” there’s much more surveillance of Americans when compared to prior decades. But the current spying occurs in a less targeted way.

Documents published by The Guardian have revealed that virtually every American’s communications are swept up by phone and Internet surveillance, though the government is not targeting individual Americans. Instead, the NSA is targeting foreigners but has retained–and sometimes searched– information about Americans in communication with foreign subjects of spying. In contrast, Jabara was working as a lawyer at a time when the NSA was specifically targeting domestic dissidents.

In 1972, Jabara filed suit against the government for prying into his life. A young Detroit-based attorney at the time, Jabara represented people from the Arab-American community caught up in legal trouble. He also took on the cases of people harassed by the Federal Bureau of Investigation, which had stepped up efforts to surveil Arab activists in the aftermath of the 1967 war, when the U.S. alliance with Israel was solidified. Jabara was caught up in what was called “Operation Boulder,” a Nixon administration-era program that put Arabs under surveillance. “Operation Boulder,” which was sparked by the murder of Israeli athletes at the Munich Olympics in 1972, went after domestic activist groups and was instrumental in the deportation of hundreds of people on technical irregularities.

Jabara was spied on without a warrant, albeit incidentally–the U.S. government never targeted him, but surveilled phone calls and telegrams from his clients. His case forced the government to disclose that Jabara was spied on and that non-governmental domestic groups shared information on Jabara with the U.S. The FBI was the primary agency tracking him, but it was the NSA that furnished the federal law enforcement agency with records of Jabara’s phone conversations.

In 1979, a federal district court judge handed Jabara and his legal team a victory with a ruling that said the U.S. had violated Jabara’s Fourth Amendment and privacy rights. The federal government appealed, and a separate court delivered a setback to Jabara. In 1982, an appeals court ruled that the government can intercept conversations between U.S. citizens and people overseas–even if there is no reason to believe the citizen is a “foreign agent.” The final step in the case came in 1984, when the FBI agreed to destroy all the files on Jabara and stipulated that the lawyer did not engage in criminal activity.

The timeline of Jabara’s case traverses a changing legal landscape governing surveillance. When Jabara first filed suit, there was no legal framework prohibiting the government from spying on Americans without a warrant. But in the wake of disclosures about the NSA keeping a “watch list” of some 1,650 anti-war activists and other evidence of domestic surveillance, the Foreign Intelligence Surveillance Act was passed in 1979. The act required intelligence agencies to go to a secretive court–where the judges are handpicked by the Supreme Court’s Chief Justice–in order to target Americans. It’s an open question whether the secretive court, criticized for being deferential to government claims, would have denied the NSA’s and FBI’s bid to spy on Jabara. But it would have had to show probable cause that Jabara was an agent of a foreign power–an assertion that federal judges eventually rejected.

Parallels between current-day surveillance and the spying on Jabara are easy to come by. The U.S. government attempted to shield disclosing data on surveilling Jabara by asserting the “state secrets” privilege. The Obama administration used the same argument to try to dismiss a lawsuit against the NSA. Both surveillance efforts raise the question of how to square a secret spying regime with a Constitution that ostensibly protects privacy. And the government revealed that it shared information on Jabara with three foreign governments–a foreshadowing of revelations that the U.S. shares intelligence information with allies, including the Israeli government. (Jabara suspected that the U.S. shared data on him with Israel, though the government denied that.)

Lee Tien, a senior staff attorney with the Electronic Frontier Foundation, said that not much had shifted since the government spied on Jabara. “What has changed is that the intelligence community is doing even more surveillance,” Tien told me in an interview. “What didn’t change? They’re still surveilling people in the United States and they’re doing it illegally.”

Now, the question is whether more legal checks will be put on the NSA’s surveillance regime. The secretive agency is battling civil liberties groups in courts and could be reined in by new legislation proposed by elected officials. But Jabara’s case–and the long history of NSA spying–shows that despite reform efforts, spying on Americans continues unabated.

Alex Kane on October 3, 2013

Find this story at 3 October 2013

© 2013 Mondoweiss

Arab-American Attorney Abdeen Jabara: I Was Spied on by the National Security Agency 40 Years Ago

As more revelations come to light about the National Security Agency, we speak to civil rights attorney Abdeen Jabara, co-founder of the American-Arab Anti-Discrimination Committee. He was involved in a groundbreaking court case in the 1970s that forced the NSA to acknowledge it had been spying on him since 1967. At the time of the spying, Jabara was a lawyer in Detroit representing Arab-American clients and people being targeted by the FBI. The disclosure was the first time the NSA admitted it had spied on an American.
Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: I want to turn now to a—perhaps related, but certainly to the climate, I want to end today’s show on the National Security Agency. Our guest here in New York, Abdeen Jabara, who was co-founder of the American-Arab Anti-Discrimination Committee, was involved in a groundbreaking court case in the 1970s that forced the National Security Agency to acknowledge it had been spying on him since 1967. The disclosure was the first time, I believe, that the NSA admitted it had spied on an American. I mean, this is at a time, Abdeen Jabara, that most people had no idea what the NSA was. This is not like these last few months.

ABDEEN JABARA: Well, it was—this is very interesting. I didn’t know what the NSA was. I mean, I started a lawsuit against the FBI, because I thought that the FBI had been spying on me and monitoring my activities—

AMY GOODMAN: Why?

ABDEEN JABARA: —and that of my clients. Well, I’ll tell you why. Because I had been very, very active in Palestinian support work. And one day I read in Newsweek magazine, in the Periscope section, that 26 Arabs in the United States had been targeted for surveillance, electronic surveillance. So, I thought, surely, some of those had been clients of mine or had talked to me on the phone about issues and so forth. And that’s when I brought the lawsuit. And—

AMY GOODMAN: So you sued the FBI in 1972.

ABDEEN JABARA: Right, I sued the FBI in 1972, and the FBI answered. And on the issue about electronic surveillance, they declined to answer on the basis that it was privileged and state secret. At that point in time, the ACLU came in to represent me, and we forced them to answer that question. They admitted that there had been some overhears, alright, that I had not been personally targeted for electronic surveillance, but there had been overhears of my conversations with some of my clients. And they also said they received information from other federal agencies. And they didn’t want to answer that, who that agency was. And the court compelled them to answer. And it turned out that other agency was the NSA. And we didn’t know, you know, what the NSA was. Jim Bamford’s book, The Puzzle Palace, hadn’t yet been published. And we found out that the FBI had requested any information that the NSA had, and the NSA had six different communications that I had made. I was president of the Association of American Arab University Graduates in 1972, so I had a great deal of work on my plate as the president of the association. And I don’t know what these communications were.

And the district court, Judge Ralph Freeman, held that my First Amendment and my Fourth Amendment rights had been violated. An appeal was made to the Sixth Circuit Court of Appeals in Cincinnati. And the Sixth Circuit set aside part of that ruling, saying that there is no violation of a Fourth Amendment right by the National Security Agency to surveil an American’s communications overseas, even though the person is not a foreign agent. And, in fact, five years ago, Congress codified that, where they have said—and there’s an article in today’s New York Times about this—by saying that there’s no warrant requirement where the target is a foreign target, even though an American citizen is communicating overseas.

So, this whole issue, I was surprised, after all the revelations about the Snowden-NSA brouhaha, that nobody had looked back at what had occurred back in the—in the ’70s to show that at that time it came out in the press that over 1,600 Americans had been surveilled by the NSA. And this was before the passage of FISA, Foreign Intelligence Surveillance Act. Out of that issue in the ’70s, they passed this FISA Act, which said that—and they set up a secret court, which is the national security court. The judges of that are appointed by the chief justice of the Supreme Court.

AMY GOODMAN: We have less than a minute. So—

ABDEEN JABARA: Yes.

AMY GOODMAN: —keep going.

ABDEEN JABARA: So, they set that up, and they said that that will create safeguards, alright? This will create safeguards, and that the only targets can be foreign agents.

AMY GOODMAN: Finally, Abdeen Jabara, so there are all these records on you, not only that the FBI and NSA had. How many other agencies had them? And did you get them expunged?

ABDEEN JABARA: As a matter of fact, I did. After the case was remanded to the trial court, the district in Detroit, we entered into a settlement with the FBI whereby they acknowledged that I had not been in violation of any U.S. laws, that I had been exercising my constitutional rights, and that they would destroy the entire file that they had collected on me.

AMY GOODMAN: How many agencies had they shared this file with?

ABDEEN JABARA: They had shared it with three foreign governments and 17—

AMY GOODMAN: Which governments?

ABDEEN JABARA: —17 domestic agencies.

AMY GOODMAN: Which governments?

ABDEEN JABARA: Well, they didn’t tell us.

AMY GOODMAN: Ah—

ABDEEN JABARA: But you can just surmise.

AMY GOODMAN: I want to thank you all for being with us. Thank you so much, Abdeen Jabara, former vice chair of the ADC, one of the founders of the American-Arab Anti-Discrimination Committee; Albert Mokhiber, former president of the ADC; and Congressmember John Conyers. Congratulations on your almost 50 years of service.

I’ll be speaking on Saturday at 2:00 at the Green Fest in Los Angeles, and at 6:00 at Newport Beach Marriott in California.

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Thursday, October 17, 2013

Find this story at 17 October 2013