On the morning of 6 October the nine justices of the US supreme court filed into their wood-paneled courtroom in Washington to hear arguments in a dispute between the US government and Abu Zubaydah, a Guantánamo prisoner who has been held incommunicado and without charge for the past 20 years.
A government lawyer addressed the panel, arguing on grounds of “state secrets” that Zubaydah should be blocked from calling two CIA contractors to testify about the brutal interrogations they put him through at a hidden black site in Poland. Within minutes of his opening remarks, the lawyer was interrupted by Amy Coney Barrett, one of the rightwing justices appointed to the court by Donald Trump.
Barrett wanted to know what the government would do were the contractors to give evidence before a domestic US court about how they had “waterboarded” Zubaydah at least 83 times, beat him against a wall, hung him by his hands from cell bars and entombed him naked in a coffin-sized box for 266 hours. “You know,” she said, “the evidence of how he was treated and his torture.”
“Torture.”
Barrett said the word almost nonchalantly, but its significance ricocheted around the courtroom and far beyond. By using the word she had effectively acknowledged that what was done by the CIA to Zubaydah, and to at least 39 other “war on terror” detainees in the wake of 9/11, was a crime under US law.
After Barrett uttered the word the floodgates were opened. “Torture” echoed around the nation’s highest court 20 times that day, pronounced by Barrett six times and once by another of Trump’s conservative nominees, Neil Gorsuch, with liberal justices Sonia Sotomayor and Elena Kagan also piling in.
The flurry of plain speaking by justices on both ideological wings of the court amazed observers of America’s long history of duplicity and evasion on this subject. “The way the supreme court justices used the word ‘torture’ was remarkable,” Andrea Prasow, a lawyer and advocate working to hold the US accountable for its counterterrorism abuses, told the Guardian. “You could feel the possibility that the ground is shifting.”
Prasow was astonished a second time three weeks later when Majid Khan, a former al-Qaida courier also held in Guantánamo, became the first person to speak openly in court about the torture he suffered at a CIA black site.
Khan’s description of being waterboarded, held in the nude and chained to the ceiling to the point that he began to hallucinate was so overpowering that seven of the eight members of his military jury wrote a letter pleading for clemency for him, saying his treatment was a “stain on the moral fiber of America”.
The ground does appear to be shifting, and as it does attention is once again falling on one of the great unfinished businesses of the 21st century: the US torture program. In the panicky aftermath of 9/11, when the world seemed to be imploding, the CIA took the view that the ends – the search for actionable intelligence to thwart further terrorist attacks – justified any means.
With the enthusiastic blessing of the justice department and George W Bush’s White House, the CIA abandoned American values and violated international and US laws by adopting callous cruelties that they consciously copied from the enemy.
They took one prisoner, Abu Zubaydah, and made him their experimental guinea pig. On Zubaydah’s back they built an entire edifice of torture – “enhanced interrogation techniques” as the bloodless euphemism went – that in turn was founded upon a mountain of lies. When the worst of the torture was completed, to spare themselves from possible prosecution the CIA insisted that Zubaydah remain “in isolation and incommunicado for the remainder of his life”.
“The torture program was designed for only one person – they gave him a name and that name was Abu Zubaydah,” Mark Denbeaux, Zubaydah’s lead habeas lawyer, told the Guardian. “After they tortured him, they demanded that he be held incommunicado forever so that his story could never be told. Since that moment the only people he has ever spoken to are his torturers, his jailers, and his lawyers, including me.”
Twenty years after Zubaydah was waterboarded, slammed repeatedly against a wall, sleep-deprived, face slapped, chained in painful stress positions, hosed with freezing water, stripped naked, and blasted with deafening noise, his story still has not fully been told. In 2014 the Senate intelligence committee released a heavily redacted, 500-page executive summary of its seven-year investigation into the torture program, generating headlines around the world and leading Barack Obama to conclude that “these harsh methods were not only inconsistent with our values, they did not serve our national security”.
Yet at the insistence of the CIA the full report from which the summary was drawn remains under lock and key to this day. All three volumes of it. All more than 6,700 pages. All 38,000 footnotes. All the detail distilled from 6.2m pages of classified CIA documents.
The persistent refusal to release the full Senate torture report has left a black hole at the centre of one of the most shameful episodes in US history. Now, with the T-word being heard even in the hallowed halls of the US supreme court, renewed calls are being made for the report to be published so that this sorry chapter can finally be closed.
Several of the individuals most closely involved in the battle for the truth over Abu Zubaydah’s treatment have told the Guardian that 20 years is long enough. It is time for the American people to be told the full unadulterated facts about what was done in their name.
“More than seven years after the completion of the torture investigation, it remains critically important that the public see the full report,” said Ron Wyden, the Democratic senator from Oregon who was an important advocate for the Senate investigation and who played a critical role in ensuring that at least some of its findings have emerged into daylight.
Wyden called for a full accounting of the CIA’s handling of detainees. He said a wealth of information still shrouded in secrecy would confirm that the torture program was ineffective – it simply didn’t work.
“The withholding of the full report, and the redactions in the public executive summary, have hidden from the public the story of how the program was developed and operated. Understanding how all of this happened is important because it must never happen again.”
Daniel Jones, the chief author of the US Senate report, said that now was the moment for its release. “The country is ready. It’s what you do in a transparent democracy: when you mess up you admit it and you move on as a better country. We’ve reached that point now.”
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Abu Zubaydah, 50, (actual name Zayn al-Abidin Muhammad Husayn) is a Saudi-born Palestinian who was one of the CIA’s “high-value” targets in the wake of 9/11. He was captured in Faisalabad, Pakistan, on 28 March 2002 in a raid in which he was shot several times including in the thigh and groin. He later lost his left eye while in US custody in unexplained circumstances.
John Kiriakou, a former CIA counter-terrorism officer, was a leading member of the team that seized Zubaydah, sitting guard at the prisoner’s bedside after the raid. Though Kiriakou did not participate in the prisoner’s subsequent interrogations at secret black sites in Thailand, Poland, Lithuania and other countries, he continued to keep tabs on his captive.
In December 2007, having by then left the CIA, Kiriakou gave an interview to NBC News in which he became the first former government official publicly to state that Zubaydah had been waterboarded – the process where a cloth is placed over a detainee’s face and water poured over it as a form of controlled drowning. Kiriakou declared that he had come to view the procedure as torture.
Kiriakou’s comments marked the first chink in the wall of official silence surrounding the CIA’s abuses. The move displeased his former employers and he was made the subject of a leak inquiry that ended in a sentence of 23 months in a federal penitentiary – he is convinced as an act of revenge – ostensibly for having revealed the identity of a covert CIA agent to a journalist.
Unbeknownst to him at the time, Kiriakou in fact gave erroneous information in his NBC News interview. He said Zubaydah had been waterboarded only once and that the detainee had instantly cracked, divulging good actionable intelligence in less than a minute.
In fact, the prisoner was waterboarded not once but at least 83 times over more than a month. After the torture began in earnest at “detention site green” in Thailand in August 2002, the CIA gleaned no valuable information from Zubaydah whatsoever.
Kiriakou told the Guardian that his remarks to NBC had been based on what he picked up at CIA headquarters in Langley, Virginia. “This was all a lie and we didn’t know it was a lie until it was declassified in 2009. So on top of being illegal, unethical and immoral, it was also false.”
To Kiriakou, the supreme court’s ease with the word “torture” 14 years after he used it for the first time on network television is “vindication that it was wrong”. He said he was dismayed that the CIA continues to cover up its “barbaric crimes” by resisting release of the full Senate report, likening the study to the defense department’s internal account of the Vietnam war that changed the course of history when it was leaked in 1971.
“We knew a lot about what was happening in Vietnam but we didn’t have official government confirmation until Daniel Ellsberg released the Pentagon Papers. It’s the same here. We have had some testimony from torture victims but we don’t have official confirmation of what the CIA did from the CIA itself, and that’s what release of this report would do.”
The lies to which Kiriakou fell foul were intrinsic to the torture program from its inception. Zubaydah was used as the prototype for a new type of “enhanced interrogation” that crossed the line into torture.
In April 2002 a pair of psychologists, James Mitchell and Bruce Jessen, were brought on board by the CIA on contract to create the program. They based the plan partly on experiments on dogs that found if you hurt and humiliated the animals sufficiently, eventually they would stop resisting – “learned helplessness” as it was known in the trade. (At least in this regard the torture program proved successful – Zubaydah did reach such a place of helplessness. It got to the point that as soon as an interrogator snapped his fingers twice, the detainee would lie flat on the waterboard and wait supinely for the controlled drowning to begin.)
The psychologists, whom the CIA paid more than $80m for their efforts, consciously modeled their interrogation methods on the so-called SERE training of American soldiers on how to resist torture were they to fall into enemy hands. The contractors openly adopted the enemy torture techniques, without irony, despite the fact that the methods were designed to extract propaganda statements from US prisoners of war and not accurate intelligence.
Senior CIA officials knew that they faced an uphill battle in persuading the Department of Justice that what they planned to do was legal – after all torture was categorically prohibited under the 1949 Geneva Conventions that the US had ratified. So they presented the DoJ with a “psychological assessment” of Zubaydah justifying why he needed to be made to talk using aggressive interrogation methods, warning that “countless more Americans may die unless we can persuade Zubaydah to tell us what he knows”.
It was all a smorgasbord of lies. “The reasons they gave for why he had to be tortured were false and known to be false,” Denbeaux said.
“The justice department was duped into approving the torture of a man who was never a member of al-Qaida. They said he was number two, three or four of al-Qaida – not true. They said he was part of 9/11 – laughable and not true. They said he was part of all al-Qaida operations around the world – totally untrue.”
Denbeaux added that one of the most urgent arguments in favour of releasing the full Senate report was that it would expose the lies at the core of the program. “It would show in detail how the falsity was made up, and who in the CIA put these false facts together.”
Zubaydah’s psychological profile was not the only aspect of the untruths that formed the building blocks of the torture program. The CIA was also misleading about the efficacy of “enhanced interrogation techniques”.
Ali Soufan has personal knowledge of how distorted the official CIA account was. A former FBI special agent, he was one of the first US officials to interrogate Zubaydah at a black site.
He did so using conventional interrogation methods that would be familiar to students of Law & Order. He learned everything he could about his subject, spoke in the prisoner’s own language (Arabic), built up a rapport with Zubaydah, and played mind games on him such as giving him the impression that the FBI knew much more about his activities than in fact they did.
All without recourse to force, violence or humiliation. “We did not need torture to get information,” Soufan told the Guardian.
Soufan and his FBI partner succeeded in securing Zubaydah’s cooperation and extracting significant intelligence from the prisoner, including the central role played by Khalid Sheikh Mohammed as the architect of 9/11. Even so, they were abruptly pulled off the job and replaced by the CIA contractors armed with a very different approach.
Soufan watched aghast as CIA operatives, under the instruction of Mitchell and Jessen, began to torture the prisoner. “At the beginning it was mostly loud music,” Soufan said. “He was held naked in the cell. That shocked me at the time. It was stupid, why are we doing it, the guy is already giving information. And then it evolved, one step after another.”
Starting at 11.50am on 4 August 2002, Zubaydah was tortured through a variety of methods, almost 24 hours a day, for 19 days without break. After a waterboarding session he was noted to have “involuntary leg, chest and arm spasms” and to be unable to communicate. On one occasion he became “completely unresponsive, with bubbles rising through his open, full mouth”.
Given Zubaydah’s incommunicado status, he has never been allowed to recount his experiences directly to the American people. But over the years his lawyers have managed to put together notes in which the Guantánamo detainee describes his abuse.
Excerpts of those notes, together with some of Zubaydah’s drawings that he sketched from memory in Guantánamo that illustrate his treatment at the CIA black sites, are being published by the Guardian. They amount to a harrowing account in Zubaydah’s own words and images of the relentless, round-the-clock, prolonged and illegal abuse he suffered.
Soufan, who is now CEO of the Soufan Group, said the release of the full Senate report is essential to counter the CIA narrative, which he fears that too many Americans still believe – that torture works. “Most of the American public believe the Hollywood version: you beat someone up, they give you the information you want, you save lives.”
Soufan added: “Release the full Senate report and you will see that the CIA shaped a false narrative. The torture did not work, it did not produce information that saved lives, it did hinder our counterterrorism operations and destroy our image and reputation around the world.”
Soufan’s own experiences give some hope that the full Senate report might one day be made public. When his book on the war of terror, The Black Banners, was published in 2011 it was so heavily redacted by the CIA that he even had to black out any reference to himself including the words “I”, “me”, “our” and “we”.
It took him a legal battle lasting nine years, but in 2020 he was finally able to bring out a declassified edition. Soufan hopes that the softening attitude of CIA chiefs towards his book bodes well for an eventual release of the Senate report.
“The CIA is now a very different organization from what it was in 2002. The people who were directly involved in the torture program, they are all out and there is a new leadership who understand the impact of all this.”
Kiriakou is more pessimistic about a CIA change of heart: “For the next 100 years the CIA will do anything it can to stop that report being made public.”
The Guardian asked the CIA whether it had plans to revisit the question of whether the report could be published, and invited the agency to comment. It did not immediately respond.
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For all the uncertainty about the CIA’s intentions, calls for release of the full Senate report are growing. Prasow said that the US will find it all but impossible to close Guantánamo without grappling with the torture issue first.
“The public has been sold a false story that torture victims were somehow less deserving of human rights protections. For far too long it’s been too easy to see torture victims as ‘other’. It’s time to bring them out into the light.”
Denbeaux, Zubaydah’s lawyer, said that releasing the report would help fill in some of the void that was left in 2005 when the CIA destroyed videotapes of the torture of Zubaydah. “In the absence of the destroyed footage, the full Senate report would bring home to the American people the cumulative horror of how the torture worked, day after day, hour after hour, continuously, endlessly. This was a hideous awful thing, and they’d like us to forget about it?”
Jones, the report’s chief author, said that were it to emerge in its totality it would “shut the book and remove any lingering doubts” – about the torture, about its ineffectiveness, and about the lies that were told. “There are so many examples in it of the CIA misleading Congress, the White House, the public.”
Among the items still waiting to be revealed is a photograph that has never been made public that Jones and his team discovered of a waterboard that was stored at the notorious “Salt Pit”, a black site outside Bagram airbase in Afghanistan. The device appeared extremely well used, and in the photo it is seen surrounded by buckets of water and bottles of a peculiar pink solution.
The photograph puzzled Jones and his team of investigators because there were no official records to indicate that waterboarding had ever been practiced at the Salt Pit. When the Senate team asked the CIA to explain the photograph, the agency said it had no answer.
In the last analysis, Jones said that it all points to a massive failure of accountability – a failure that until the full report is made public will continue to gnaw away at the nation’s standing and self-respect. “We’ve failed at every level of accountability – criminal, civil and societal,” he said. “If this is never to happen again, there has to be a reckoning.”
