Chapter 21 ngo s in Terrorism Cases: Diffusing Norms of International Human Rights Law
Jeffrey Davis
1 Introduction – Abu Zubaydah
On 28 March 2002, American and Pakistani agents stormed a house in Faisalabad, Pakistan, firing their weapons as they sought to capture men they believed were senior Al Qaeda operatives. They shot Abu Zubaydah in the groin, thigh and stomach, nearly killing him. cia agents took Abu Zubaydah that day and disappeared him into a web of secret prisons and torture for the next four years.1 Shortly after his arrest us officials rendered Abu Zubaydah to a secret detention facility in Thailand. There fbi agents who knew Arabic and who had experience questioning Al Qaeda members interrogated him. Abu Zubaydah told them he wished to cooperate and quickly turned over information the fbi agents referred to as ‘important’ and ‘vital.’2 When Abu Zubaydah’s med- ical condition deteriorated, agents moved him to a hospital for treatment, and even helped with his recuperation. At that moment, the cia decided to introduce the first elements of its enhanced interrogation techniques. As the fbi interrogators stated, ‘we have obtained critical information regarding Abu Zubaydah thus far and have now got him speaking about threat information … we have built tremendous report [sic]with Abu Zubaydah.’ ‘Now that we are on the eve of “regular” interviews to get threat information,’ they complained, ‘we have been “written out” of future interviews.’3 Soon after the cia took over Abu Zubaydah’s interrogation, agents blind- folded him, strapped him to a stretcher and flew him to the Stare Kiejkuty base in Szymany, Poland. There the cia continued to apply its ‘enhanced
1 Zayn al-Abidin Muhammad Husayn (Abu Zubaydah) v Poland App No 7511/13 (ECtHR 24 July 2014) 5. 2 us Senate Select Committee on Intelligence (ssci) Report on cia Interrogation 48–49 (22–23 of 499),
© Koninklijke Brill NV, Leiden, 2018 | DOI 10.1163/9789004340251_ 022 460 Davis interrogation techniques with significant repetition for days or weeks at a time.’ According to a us Senate Intelligence Committee investigation (ssci) ‘tech- niques such as slaps and ‘wallings’ (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity …’ Interrogators used these and other techniques ‘to enhance Abu Zubaydah's sense of hopelessness.’4 The ssci revealed that: ‘Over the course of the entire 20 day aggressive phase of interrogation, Abu Zubaydah spent a total of 266 hours … in the large (coffin size) confinement box and 29 hours in a small confinement box.’ cia interrogators threatened to kill Abu Zubaydah by telling him “that the only way he would leave the facility was in the coffin-shaped con- finement box.”5 The cia subjected Abu Zubaydah to the waterboard – simu- lated drowning – 83 times. As the ssci observed, ‘the waterboarding technique was physically harmful, inducing convulsions and vomiting. Abu Zubaydah, for example, became “completely unresponsive, with bubbles rising through his open, full mouth …” ’6 The cia has since admitted that its belief at the time that Abu Zubaydah was a high level Al Qaeda leader was an error.
2 Hypotheses
In the fourteen years since Abu Zubaydah’s capture, advocates, human rights non-governmental organizations (ngo s), and reporters have slowly uncov- ered the gruesome truth of the cia interrogation program. To do so they have had to overcome stubborn secrecy and other national security legal doctrines. In this chapter, I argue:
1. Enforcing international law, especially international human rights law, is a political process requiring norm diffusion. 2. Human Rights ngo s are expanding the enforcement of international human rights law to counter-terrorism cases by exposing violations using official documents, holding principal and partner nations accountable in domestic and regional courts, and by challenging legal doctrines that block legal accountability. 3. ngo s are particularly effective because they make use of international networks of human rights ngo s, take a multi-front
4 Ibid 55 (29 of 499). 5 Ibid 68 (42 of 499). 6 Ibid 10 (3 of 19).