End 22 Years Of Injustice

“The Forever Prisoner”: Alex Gibney’s New Documentary About CIA Torture Victim Abu Zubaydah

A promotional image for Alex Gibney's new documentary film "The Forever Prisoner."

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By Andy Worthington, December 22, 2021

In the long litany of torture and abuse inflicted by the U.S. government on prisoners in the brutal "war on terror" that the Bush administration declared after the terrorist attacks of September 11, 2001, few have suffered as much as Abu Zubaydah (Zayn al-Abidin Muhammad Husayn), for whom, mistakenly, the CIA’s post-9/11 torture program was invented.

For as long as I have been studying and writing about Guantánamo, it has been apparent that Abu Zubaydah’s story is one of the darkest in the entire sorry saga of how the U.S. lost its moral compass after 9/11.

Seized in a house raid in Faisalabad, Pakistan, in March 2002, in which he was shot and badly wounded, he was then flown to the CIA’s first post-9/11 torture prison, in Thailand. This was the start of four and a half years in CIA "black sites" — including in Poland, in a "black site" in Guantánamo Bay that existed for six months in 2003-04, in Morocco, in Lithuania and in Afghanistan — before his eventual transfer back to Guantánamo, with 13 other "high-value detainees," in September 2006.

Since then, while some of his fellow "black site" prisoners have been charged, his imprisonment without charge or trial has continued. Under President Obama, he was one of 64 prisoners who ended up having their cases reviewed by a parole-type process known as the Periodic Review Boards, which approved 38 of them for release. Abu Zubaydah, however, was one of 26 men whose ongoing imprisonment without charge or trial was approved, on the basis that he still allegedly constituted a threat to the U.S.

Under Donald Trump, one of the 26 was approved for release by a PRB, and under President Biden eight more of the 26 have also been approved for release (although none of them have actually been freed). There are now 14 “forever prisoners” still held at Guantánamo who have not been approved for release, and Abu Zubaydah is still one of them.

The cases of all 14 men are worthy of scrutiny, but Abu Zubaydah’s case remains the one that, above all, highlights the arrant brutality and the crushing injustice of the "war on terror," and it is commendable that Alex Gibney, who first tackled the horrors of the "war on terror" in "Taxi to the Dark Side," released in 2007, has returned to the "war on terror" in his latest documentary, "The Forever Prisoner," which was recently released by HBO.

The trailer for the film is posted below, via YouTube:

Abu Zubaydah "should remain incommunicado for the remainder of his life"

Gibney’s documentary begins with one of the most chilling exchanges between CIA interrogators and the CIA’s headquarters in Langley, which took place while Abu Zubaydah was being held and tortured in the CIA’s first "black site" in Thailand in 2002. As David Smith explained for the Guardian, "From 'a black site' in Thailand in 2002, CIA officers warned headquarters that their interrogation techniques might result in the death of a prisoner. If that happened, he would be cremated, leaving no trace. But if he survived, could the CIA offer assurance that he would remain in isolation? It could. Abu Zubaydah, the agency said in a cable, 'will never be placed in a situation where he has any significant contact with others' and 'should remain incommunicado for the remainder of his life.'"

That promise has not entirely come true, but only just. Abu Zubaydah has legal representation, but his lawyers are his only point of contact with the outside world. In addition, very little of what he has said to his lawyers has ever been made public, because every word exchanged between lawyers and their clients at Guantánamo is presumptively classified, and in Zubaydah’s case — and that of the other "high value detainees" — little of what they have said over the last 15 years has been unclassified. He remains, therefore, largely held incommunicado, and, like the other "forever prisoners," with no notion of when, if ever, his seemingly unending imprisonment without charge or trial will come to an end.

Smith interviewed Gibney when the film was released, and Gibney made a point of stressing, as Smith described it, how significant it is that he has "never [been] charged with a crime or allowed to challenge his detention," and how "[t]he election of Joe Biden has done nothing to signal an end to his purgatory or status as a non-person."

As Gibney explained, "He faces the horror that some people at Guantánamo face, which is maybe the most existential horror of all, beyond even a prisoner who is given a life sentence. You don’t really know what your future is. Your future is forever undefined. You don’t know whether you’re ever going to get out or whether you’ll ever get an explanation of why you continue to be there and that’s the stuff we make movies about when we’re trying to portray tyrannical regimes. That’s Orwell. It’s not the boot on the face forever, but it’s that sense of eternally not knowing what is going to happen to you or why. That is soul-crushing and has got to be psychologically destabilizing in some really potent way where you just don’t know."

Gibney noted that Abu Zubaydah is not entirely an innocent man. "He’s not Hollywood innocent, as even his lawyer [Joe Margulies] would say," he told Smith, who described Zubaydah as someone who "had fought in Afghanistan," and who "forged passports, arranged travel for jihadists and had knowledge of terrorist plots," and who also "used more than 30 aliases and was seen as a master of disguise."

When he was captured, however, he was "wrongly demonised as a high-level al-Qaida operative rather than an independent facilitator," and “was whisked to a secret location in Thailand for questioning by men obsessed with how to prevent another 9/11."

"Patient zero" in the CIA’s "wildly haphazard" torture program

As Gibney described it, "Abu Zubaydah was patient zero for the CIA’s torture program. That’s the reason to investigate his story because you learn how the rule of law was upended. How we went down a road where we were more interested in listening to what we wanted to hear, which is what torture tends to give you, rather than what the facts really were."

Subjected to waterboarding (a form of controlled drowning) on 83 occasions, he "also spent more than 11 days in a coffin-sized box, and 29 hours in an even smaller box just 21 inches wide, 2.5 feet deep and 2.5 feet high," as Smith explains, adding, "The documentary includes images of brutal treatment drawn by Zubaydah himself as well as entries from his pre-capture and post-capture personal diaries."

The torture program — deployed "as government policy for the first time in [U.S.] history" — was "wildly haphazard," as Smith described it. In Gibney’s words, "The CIA would like to pretend that it was a scientific program carefully calibrated by rigorous scientists. That’s not true at all. It was just improvised. 'Let’s try 24 hours of sleep deprivation. That’s not working. How about 48 hours? How about 72 hours?' Well, your mind turns to mush after 72 hours of sleep deprivation and they could have asked one of their own experts who would have said, actually, your cognitive ability just about disappears at that point. So why would you interrogate somebody after 72 hours of sleep deprivation? It’s nonsensical. Clearly, when they were on the waterboard, they didn’t know how far to go."

As Gibney proceeded to explain, "What horrified me when I got into the details of this was how careless and reckless and ad hoc the whole thing was. It was just shoot from the hip. 'Hey, let’s try a little bit of nudity today. How about some cold water? Oh, that’s not working. Let’s try the old hang 'em from the wrists. Let’s put him in a box where he will defecate on himself for four or five days. That might work. Let’s play music really loud. How about some Red Hot Chili Peppers over and over and over again?' That was a period where officially EITs ['enhanced interrogation techniques'] had not been legally approved so they’re just improvising their spitballing."

For Gibney, as Smith described it, Abu Zubaydah’s case "offers a stark demonstration that there are rules against torture because it is both immoral and fails to produce fact-based evidence." As Gibney himself put it, "Over the course of doing documentaries for a number of years, I keep coming across this phrase 'noble cause corruption.' Once people think they’re doing something for a noble cause, they allow themselves to start bending the rules, like planting a joint on a perp you can’t get any other way and then the next thing you know, you’re killing people. I would hope that people would begin to understand that the notion of the end justifies the means is never a good idea because once you accept that, it means you’re basically allowing yourself to upend the very principles that you’re claiming to uphold."

Demonstrating the slippery slope is James Mitchell, the unapologetic architect of the torture program, who, as Smith put it, "expresses no regrets for doing what he saw as his patriotic duty." Mitchell told Gibney, "If my boss tells me it’s legal, especially if the president has approved it, I’m not going to get into the nuances about what some guy in the basement or what some journalist thinks about it, because they’re free to trade places with me any time they think they can do a better job of protecting Americans."

Mitchell has spoken before about his lack of regrets, but Gibney and journalist Raymond Bonner, who worked with him on the project, also unearthed new information about Abu Zubaydah’s case that featured in the film. As an article in Vanity Fair explained, Gibney and Bonner "sued [the CIA] for access to classified documents," and "[w]hen the agency surprisingly caved, a trove of damning new — and news-making — material became public, including a 2002 al-Qaida plot to attack Israel." As Smith described it, the core of the released information was an unredacted version of former FBI agent Ali Soufan’s book, The Black Banners: How Torture Derailed the War on Terror after 9/11. As Smith described it, Gibney and Bonner also "gained access to Soufan’s interrogation notes about his time with Zubaydah," and the release of new information "enabled Soufan to speak more freely than before and shed new light on the case."

As Gibney put it, "The reason for [the torture] had always been that Abu Zubaydah was completely uncooperative. What was revealed in the new Ali Soufan interview, along with his interrogation notes, was that within an hour or two of interrogating him, he gave them an ongoing plot. That was in Israel funded by the Saudis and they helped to stop that plot. So knowing that you’d have to conclude he was completely cooperative: he’s giving them an ongoing plot that they can actually stop. But the conclusion reached by the CIA was just the opposite."

In fact, the FBI has long been on record as stating that Zubaydah was cooperative before the CIA took over and subjected him to torture, but the details of the plot serve to confirm that, as with the recent harrowing testimony of convicted "high-value detainee" Majid Khan, cooperation did not lead to better treatment, as it logically should have done. As Majid Khan described it in the statement he was allowed to make at his sentencing in October, "the more I cooperated and told them, the more I was tortured."

The censorship of Abu Zubaydah

The one person most conspicuously missing from Gibney’s film is, of course, Abu Zubaydah himself, who, like all Guantánamo prisoners, relies on the U.S. government’s censors to dictate what can, and what cannot, be revealed from his discussions with his lawyers. Constrained by classification, his lawyers — Gibney’s main source for understanding who Abu Zubaydah is — were only really able to portray their client in broad brush strokes: "a diva," but also "a man of fierce intelligence [and] a dark sense of humor," and, fundamentally, a human being "who has been deeply traumatized," who "has fierce headaches," and "has nightmares of drowning, not surprisingly."

Gibney hopes that the film will be "a wake up call." As he explained to Smith, "When you go through the things that they put Abu Zubaydah through and also the way in which it was done in such a ham fisted, careless and frankly stupid fashion, I hope people will say, 'I can’t believe this really happened and that we allowed this to happen.'"

"Furthermore," he added, "I hope the intellectual reaction will be to say Guantánamo as a prison, as a place outside the law, is some kind of cruel joke and we’ve got to shut it down because it’s not who we aspire to be. He’s there in Gitmo not because of what he did to us but for what we did to him. That’s why he’s being kept silent."

Meanwhile, in the legal twilight zone that supposedly justifies Abu Zubaydah’s endless imprisonment, his lawyers recently "petitioned a federal court for his release on grounds that America’s wars in Afghanistan and with al-Qaida are over," as the Guardian explained in an article published a few days before "The Forever Prisoner" was released.

In their filing, Abu Zubaydah’s lawyers stated, aptly, "Petitioner [Abu Zubaydah] has been held captive for nearly 20 years, nearly five of which were spent in CIA black sites scattered across the world. During that time he was tortured brutally. Now, as Respondent [the U.S. government] would have it, Abu Zubaydah must remain a captive for the rest of his life. Why? Because, somewhere in the world, the U.S. may become engaged in another armed conflict with some small group that calls itself al Qaeda, whether or not the government can prove the small al Qaeda group bears any relation to the original al Qaeda, which was depleted long ago by the death or capture of its cadre of leaders and many of its members. Petitioner, in fact, asserts that the original al Qaeda no longer exists, and will prove that assertion later on."

As the lawyers also stated, "The saddest part, though, may be that the government admits that Petitioner never belonged to al Qaeda. The AUMF [Authorization of Use of Military Force, passed the week after the 9/11 attacks], which Respondent points to as its source of detention authority, never even mentions al Qaeda. Instead, the AUMF authorizes the use of force against those who participated in the 9/11 attacks. Another tragedy is that Petitioner, over almost 20 years, has never been charged with involvement in the 9/11 attacks, either criminally or in the government’s Factual Return ("FR"). What the FR does allege primarily are offenses focused in Afghanistan. But as the world knows, President Biden has declared several times that the armed conflict in Afghanistan is over, and to prove his point the Commander-in-Chief withdrew all U.S. troops from the country. This parade of horribles prompted Petitioner to file his Motion."

It remains to be seen whether the court will acknowledge the baseless nature of Abu Zubaydah’s "forever" imprisonment without charge or trial, although it is unwise to invest too much hope in the courts, who have failed to do anything substantial for the prisoners since the brief heyday of habeas corpus, from 2008 to 2010. In the meantime, however, it is to be hoped that Alex Gibney’s film will reach as wide an audience as possible, both to expose the crushing injustice of Abu Zubaydah’s treatment, and the shame of Guantánamo’s continued existence. As Gibney told Vanity Fair, "Gitmo is just a terrible wound. It’s the place where the rule of law goes to die."