He was then 31 years old. The first to be held in US custody post-9/11 was Zayn al-Abidin Muhammad Husayn, alias Abu Zubaydah, a Palestinian citizen born in Saudi Arabia, arrested in March 2002 in Faisalabad, Pakistan. The US initially suspected him of being a key terrorist threat and a “member of Usama bin Laden’s inner circle”, but later conceded he was not a member of Al-Qaida, and not involved in the 9/11 attacks.
Yet he is now 55, and one of the 15 detainees still remaining in Guantánamo and is known as the “forever prisoner”.
Abu Zubaydah has been in US detention for over 24 years, including nearly 23 years in Guantanamo, and has never been charged. Like others, he was first held in CIA “black sites” in various countries, where he was severely tortured under what the intelligence agency called “enhanced interrogation techniques” approved by the US government under President George W. Bush. In January this year, the UK agreed a settlement to Abu Zubaydah on grounds that British intelligence services had passed on questions to the CIA in knowledge that this detainee was being tortured to get answers.
Over the past 24 years, about 780 people have been imprisoned in Guantánamo. Of the 15 detainees still there, six have never been charged, two have been convicted by military commissions (one pled guilty and one who boycotted his trial got a life sentence), and the others are in pre-trial litigation, says Reid T. Hopkins, a lawyer within the US military system who represents Abu Zubaydah and another detainee.
International lawyers have been working for years to try to get Abu Zubaydah and other Guantánamo detainees released. The US “enhanced interrogation techniques” have been extensively documented by UN and European human rights bodies and also by public, credible sources in the US itself, notably a December 2014 Senate intelligence committee report into CIA interrogation techniques post-9/11.
International bodies have condemned Abu Zubaydah’s prolonged arbitrary detention, saying he should be immediately released and compensated -- a call that has so far fallen on deaf ears with regard to the US authorities. European countries like Poland and Lithuania that hosted US “black sites” have each paid compensation (100,000 euros) to Abu Zubaydah in compliance with rulings by the European Court of Human Rights.
The UK settlement: a precedent?
Asked about the amount of the UK settlement, international lawyer for Abu Zubaydah Helen Duffy told Justice Info she cannot reveal the sum because the agreement also contained a confidentiality clause, but it was “substantial”. Duffy, who worked on this case with British barristers and solicitors in the British civil courts, says settlements in such cases are not unusual, but “it may be the first time there’s a settlement in relation to the UK’s complicity in the CIA’s secret detention programme”. The settlement is not an explicit recognition of guilt, she says, but “the facts are pretty clear and a UK parliamentary report of 2018 already established that the UK had sent questions to the CIA to put to Abu Zubaydah, despite knowing he was being tortured”.
Duffy says part of the UK settlement has been paid and the rest is “still being worked out”. However, whilst still in US detention, Abu Zubaydah cannot access any compensation awarded to him.
“For as long as he is in US detention, he is not going to be able to improve his circumstances,” Hopkins told Justice Info. “No matter how much money he has, what he is entitled to in US detention is whatever the US military provides him and what I, as his attorney, can bring him: a small number of what they call comfort items that fit in a small box, on a monthly basis.”
“Money matters,” says Duffy. “It could matter to him if he ever gets out. But what we need to focus on is bringing to an end these violations, and securing his freedom.”
A “Kafka-esque regime” with no rules
Duffy is not allowed to visit Abu Zubaydah in prison. “Guantánamo is a really Kafka-esque regime, one that makes no sense,” she says. “Much of it is not governed by rules, and the rules that exist are either misunderstood or arbitrary in themselves. They won’t clear me to visit Abu Zubaydah. He does receive visits from his security cleared lawyers from within the United States system - lawyers responsible for his habeas corpus claim, which has been languishing for many years before US courts, and his military counsel.”
The good thing is that these lawyers can visit, she says, and she is now able to communicate with him through letters, which is better than in the past. “We write to each other regularly, but it’s not the same as meeting someone and it’s not confidential, which of course lawyer-client relations should be,” Duffy continues. Asked about her impression of his health, she says it is in the public domain that he has “serious physical and psychological scars from what he endured, which was really horrendous and prolonged torture”.
Hopkins is one of the US lawyers that can visit Abu Zubaydah, whose real first name is Zayn. “I am able to have good and productive conversations with Zayn,” he told Justice Info. “He has good days and bad days. There are certainly lingering effects to his health and well-being from the torture he experienced.”
The conditions now are a bit more humane than they were in the past, Hopkins told Justice Info, and his client is now permitted, for example, to attend communal prayers and communal meals with the other men who are detained in there, which for a long time was not allowed.
But, as Duffy points out, he has “no control over his own life”, he is subject to a high-security regime, and “there is a stark lack of any meaningful process to secure our client’s freedom within a legally flawed and deeply politicized system,” she says. Hopkins says that if Abu Zubaydah ever gets out, he will probably be monitored by the US for the rest of his life.
Military commissions: “not designed to be fair”
If charged, Guantánamo detainees are to be tried by US military commissions within the prison. Hopkins is also a lawyer for another prisoner, Encep Nurjaman, who was charged before a military commission in 2021, so Hopkins has experience of these commissions. “What I can say about Abu Zubaydah is that we are under no illusion that he would receive a fair trial in a military commission,” he says.
“The military commissions were not designed to be a fair system. They were designed to be the opposite, and to excise many protections that the American legal system affords to criminal defendants to promote fair trials. Despite that, Abu Zubaydah has asked to be charged, whether in a United States court or in a military commission, many times over the years. The United States government has denied or ignored all of those requests.”
Another prisoner who has been in Guantánamo for more than two decades is Abd al-Rahim al-Nashiri, a Saudi Arabian citizen the US suspects of masterminding the 2000 bombing of the USS Cole in which 17 US Navy sailors were killed. He has been in US illegal detention since 2002 but, unlike Abu Zubaydah, charged before a military commission -- in connection with the USS Cole bombing. In a victory for his lawyers, the military court in Guantánamo in August 2023 threw out evidence against al-Nashiri obtained under torture. But although his case has been before this military commission for 15 years, he has still not been brought to trial. Like Abu Zubaydah, he was severely tortured at US “black sites” and has received some compensation from countries such as Poland and Romania, money he cannot access in detention.
Trump administration rejects plea deal
“There have been proposals to reach an agreement, a ‘plea agreement’, submitted by the prosecutor who wanted that. A document was prepared, but then it was opposed by the Trump administration,” says Swiss lawyer Sylvain Savolainen, who represents al-Nashiri internationally along with a team of other lawyers. This proposed plea agreement, he told Justice Info, would have involved al-Nashiri pleading guilty, in return for the prosecution no longer pursuing the death penalty as a possible punishment.
“That, in my view, is not at all valid in terms of the most fundamental principles of international law,” he continues, given that his client has been held in arbitrary detention for years and severely tortured, as recognised by international bodies and by the US Senate report. The UN Working Group on Arbitrary Detention held in its legal opinion that he should be immediately released and compensated.
Art as therapy… and potential evidence
All the remaining 15 detainees went through the CIA interrogation programme, which former president Barack Obama ended in 2009.
These so-called “enhanced interrogation techniques” included, for example, waterboarding, sleep deprivation, temperature manipulation and stress positions.
The CIA had 90 video tapes of Abu Zubaydah’s interrogation sessions filmed in 2002 at an undisclosed location in Thailand. The agency destroyed all the tapes in 2005. But Abu Zubaydah, who is not allowed to communicate with the outside world, has told his own story through artwork, depicting the various tortures he endured in black and white drawings.
Security is so tight around Guantánamo detainees that lawyers even had to fight to get Abu Zubaydah’s drawings declassified, says Duffy. These drawings were the subject of a recent exhibition in London, which she helped organize. “There are a number of Guantánamo detainees that did turn to art during their detention and I think encouraged one another to do that,” she told Justice Info. “I think it’s really fascinating and important, and for some of them it’s really the only therapy that they had.”
She says she also sees Abu Zubaydah’s art as “quite a powerful form of evidence of what he went through”. “What he depicts in his torture drawings corresponds with the findings of the US Senate report and the international cases that I have done on his behalf, the forms of interrogation techniques that were approved at the highest level,” she continues. “So I think for him, his drawings are a way of expressing his suffering and humanity, they are evidence of what happened to him. But they were also therapy for him and for many other detainees who did not have the rehabilitation that torture victims deserve and need.”
The “forever prison”?
“I believe that most people in the United States government simply want to forget about Guantánamo Bay, and I believe that’s been the case for a long time,” says Hopkins. “When Guantánamo Bay was opened in 2002, it was rightly criticized by many in the US and the international community. The Bush administration was willing to weather that criticism and turn it into the long-term detention camp that it has become.”
“The Obama administration made an admirable but insufficient effort to reverse course on that decision and close the facility,” he adds. “And they were thwarted by a United States Congress that for many flawed reasons insisted on keeping it open. Ever since then, most people in the government have wanted to ignore Guantánamo and all the problems and rights violations it symbolizes.”
Savolainen too thinks the Guantánamo situation is unlikely to change under the current Trump administration. “When will the situation be resolved? I can only hope as quickly as possible,” he says. “But I cannot help but note that the United States is sinking ever deeper into the horror that is non-respect of international law.”
Duffy points out that there also continues to be total impunity for the perpetrators of torture. “I think we shouldn’t lose sight of the importance of some kind of accountability, eventually, as well as reparation for victims,” she says. “I think there is quite strong evidence of individual accountability at all sorts of levels. There are the individuals who carried out the torture, and there are people right up to the very top who clearly authorized what were torture techniques.”
She notes the UN Working Group on Arbitrary Detention said not only that Abu Zubaydah should be immediately released and compensated, but also states that share responsibility for his brutal torture and arbitrary detention should step up and do everything within their power to secure that release. “This includes offering him a home for life after Guantánamo,” Duffy continues. “Part of the ongoing denial of justice is that so far no state has done so. No state has acknowledged its role or apologized. No state has held anyone to account, despite abundant evidence.”
