The Justice Department has quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah, the alleged al-Qaeda leader who was the first suspected terrorist subjected to the torture of waterboarding and other White House-approved "enhanced interrogation techniques."
In a federal court filing, Justice backed away from the Bush administration's statements that Zubaydah had helped plan the 9/11 attacks and was a close confidant to al-Qaeda leader Osama bin Laden, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa.
The U.S. government's retreat underscores yet another problem with President George W. Bush's use of torture. Besides its illegality and immorality, torture can be applied to suspected terrorists who have been falsely identified and who thus don't possess the expected information, which can lead frustrated interrogators to escalate the torture until the subject provides something, whether true or not.
Such false expectations appear to have been a factor in the case of Zubaydah, who was captured in Pakistan on March 28, 2002. He appeared to respond cooperatively to FBI interrogators using "rapport-building" techniques, but his failure to supply details that the CIA had anticipated led the agency to obtain high-level permission to subject him to the near-drowning experience of waterboarding and other harsh techniques.
After those techniques were cleared by the Justice Department's Office of Legal Counsel in mid-summer 2002 and were sanctioned by Vice President Dick Cheney and other senior Bush administration officials CIA interrogators applied the methods to Zubaydah. In their frustration, they ultimately waterboarded him 83 times before concluding that many of his claims of ignorance were truthful.
The Justice Department has now backed away from the Bush administration's more extreme claims in a 109-page court document filed in U.S. District Court in Washington last September in response to 213 discovery requests from Zubaydah's attorneys in his habeas corpus case, which demands evidence to support his continued detention at Guantanamo Bay, Cuba.
(The government document was declassified last week with minor redactions. Upon learning of its availability, I arranged to buy a copy.)
In the filing, the Justice Department
asked the judge presiding over the case to deny virtually every
discovery request sought by Zubaydah's attorneys, explaining, in some
instances, that the U.S. government no longer relied upon the explosive
allegations that President Bush and other top officials made about
Zubaydah after he was captured and tortured in 2002.
For the first time, the government officially admitted that Zubaydah did not have "any direct role in or advance knowledge of the terrorist attacks of September 11, 2001," and was neither a "member" of al-Qaeda nor "formally" identified with the terrorist organization.
The government's retreat also could add to the mounting criticism of U.S. Appeals Court Judge Jay Bybee, who in August 2002 as head of the Office of Legal Counsel signed memos authorizing the torture techniques that were applied to Zubaydah and other "high-value" detainees.
At the time, Bybee asserted that Zubaydah "is one of the highest ranking members of the al-Qaeda terrorist organization," "has been involved in every major terrorist operation carried out by al-Qaeda," and was "one of the planners of the September 11 attacks." Bybee approved the harsh interrogation as necessary to thwart pending attacks on U.S. interests, which the CIA claimed Zubaydah knew about.
While backing away from the extravagant claims of the Bush era, the Obama administration says Zubaydah should still be detained based on his "actions" as an "affiliate" of al-Qaeda.
The Justice Department filing alleged that Zubaydah "supported enemy forces and participated in hostilities" and "facilitat[ed] the retreat and escape of enemy forces" after the U.S.invaded Afghanistan in November 2001.
The government acknowledged that its case against Zubaydah is based entirely on the first six volumes of his diaries that he wrote beginning in 1992 and an undated "propaganda video [Zubaydah] recorded before his capture in which [he allegedly] appears on camera expressing solidarity with Usama BinLaden and al-Qaida."
The government's new charges, according
to the court filing, claim "[Zubaydah] was present in [the Afghan city
of] Kandahar in November 2001, and a number of prominent terrorist
figures converged on Kandahar around the same time," including
self-professed 9/11 mastermind Khalid Sheikh Mohammed. But the
government does not "specify whether any of these figures met during
that that time period."