Security Detainees

Abu Zubaydah and the CIA Tape Destruction¹

In 2005, the Central Intelligence Agency destroyed at least two videotapes showing CIA agents subjecting terrorist suspects to harsh interrogation techniques. In a statement to employees on Thursday, December 6, CIA Director Gen. Michael Hayden said the tapes were destroyed to protect the safety of the interrogators and because they no longer had intelligence value.

The videotapes documented the interrogations of two suspected al Qaeda operatives in CIA custody. One of those suspects was Abu Zubaydah. President Bush has publicly acknowledged that the CIA used “an alternative set of [interrogation] procedures” on Zubaydah.²

Whether the tapes of Zubaydah’s interrogations were actually destroyed to protect the interrogators, or because they portray potential criminal activity, their disappearance complicates any future attempt to prosecute Zubaydah.

Zubaydah is an alleged al Qaeda leader and close associate of Osama bin Laden. He was captured by the United States in the spring of 2002 and held in secret CIA custody for four years until being transferred to Guantanamo Bay along with thirteen other “high-value” detainees in September 2006. He was designated an “enemy combatant” following a hearing before a Combatant Status Review Tribunal (“CSRT”) in March 2007.³ He remains in detention at Guantanamo Bay.

Several days prior to his capture, Zubaydah was involved in a firefight in Pakistan, during which bullet fragments tore through his abdomen and groin. He arrived sick and injured to U.S. custody and was soon transported to a secret detention facility in Thailand where he received medical attention.⁴ Initially, FBI agents questioned Zubaydah, employing “standard interview techniques.”⁵ Official government sources have reported that they obtained useful intelligence on al Qaeda using these techniques.⁶ At the same time, however, CIA officials reportedly believed that more information could be elicited more quickly using “aggressive techniques.”⁷ The CIA sought and was granted authorization to use such techniques.⁸ According to President Bush’s own account of the capture and questioning of Abu Zubaydah, “the CIA used an alternative set of procedures” because Zubaydah had been trained to resist standard interview techniques:

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA used an alternative set of procedures….I cannot describe the specific methods used….But I can say the procedures were tough, and they were safe, and lawful, and necessary.⁹

Based on one press account, which cites interviews with current and former intelligence and law enforcement officials, the “alternative” procedures included stripping Zubaydah naked exposing his injuries, raising the air-conditioning so much that he “seemed to turn blue,” and blasting rock music at him.¹⁰ According to CIA sources, Zubaydah “was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until he begged for mercy and began to cooperate.”¹¹ Another account, also based on CIA sources, adds that Zubaydah was threatened with death, denied medication, and subjected to loud and continuous noise and strong lights.¹²

Zubaydah’s Detention Hearing and Possible Trial

At a White House press briefing in September 2006, President Bush announced that justice for Zubaydah and the other “high-value” detainees would be swift: “As soon as Congress acts to authorize the military commissions I have proposed,” said Bush, “the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11^th 2001, can face justice.”¹³

But Zubaydah has not faced justice. It has been more than a year since his transfer to Guantanamo Bay, and no formal charges have been filed against him.

If Zubaydah is eventually tried by military commission, the evidence against him will likely include his own admissions, the reliability of which are in doubt. During Zubaydah’s CSRT hearing, the President of the military tribunal referred to Zubaydah’s allegations of “months of torture.”¹⁴ The details of those allegations have not been disclosed. Zubaydah apparently described the torture during his CSRT hearing, but the Defense Department redacted this description from the hearing transcript.¹⁵  One thing is clear, even from the redacted transcript -- Zubaydah alleges he provided false information under torture to satisfy his interrogators:

President: In your previous statement, you were saying specific treatments. Can you describe a little bit more about what those treatments were?

Detainee: [REDACTED]

President: I understand.

Detainee: And they not give me chance all this [REDACTED]

President: So I understand that during this treatment, you said things to make them stop and then those statements were actually untrue, is that correct?

Detainee: Yes.¹⁶

The reliability of Zubaydah’s statements is a crucial factor in determining whether the statements may be admitted against him at a military commission trial. Another crucial factor is whether the statements were extracted under torture. That President Bush has acknowledged using an “alternative set” of interrogation techniques does not necessarily exclude the statements from admission into evidence. The Military Commissions Act of 2006 (“MCA”) actually permits military prosecutors to introduce evidence obtained by coercion provided the evidence is reliable and probative, and its introduction serves the best interest of justice. In fact, the MCA even permits the introduction of evidence obtained by cruel, inhuman or degrading treatment provided the evidence satisfies the above requirements and was obtained prior to December 2005.¹⁷ But statements procured under torture are inadmissible.¹⁸

Since the tapes have been destroyed, the government may decide not to introduce -- or may lose the right to introduce -- Zubaydah’s statements against him. Without the tapes, how will the military judge resolve the issue whether Zubaydah’s statements were extracted under torture? And, unless the government has corroborating evidence, how will the judge assess the statements’ reliability? Unless the government has sufficient evidence to prosecute Zubaydah without his admissions, the trial of an alleged al Qaeda leader may be in jeopardy.