December 17, 2014
Torture, Justice and the American Way
By Joseph Margulies
Lawyer Representing Abu Zubaydah

On Dec. 9, the U.S. Senate Intelligence Committee released a report about the C.I.A.’s use of torture following 9/11. Since then, several media outlets have sought my opinion – not because I have any particular expertise in interrogation, but because I represent Abu Zubaydah, the man whose torture figured so prominently in the committee’s work

Zubaydah was the first prisoner cast into a black site, the prisoner for whom the infamous torture memo was written, and the only prisoner subjected to all the “enhanced” techniques. He is mentioned 1,001 times in the recent report.

I am one of the few people in the world who actually know what happened to Zubaydah, and make no mistake – he was tortured horribly. According to the Senate report, he was waterboarded and walled, stuffed into coffins, and “rectally infused.”

Let’s stop dancing on the head of a pin: This was torture. I condemn what was done to him without reservation.

We should also stop indulging fictions about ticking bombs. Zubaydah had been completely compliant with the F.B.I. when the C.I.A. took over his interrogation. Rather than continue, however, his C.I.A. interrogators ordered that he be dropped into sensory isolation. Only after 47 days did they resume his interrogation.

All of this is inexcusable. Yet it is made worse by the admissions contained in the Senate report that the allegations against Abu Zubaydah were simply untrue. The C.I.A. now admits that he was never the criminal mastermind the Bush administration once described. Indeed, the report makes it clear that he was not even a member of Al Qaeda.

Still, though my client was the victim of serious crimes for which there can be no moral or legal justification, I have always been opposed to prosecuting the people who designed, approved, and implemented the Bush-era torture program – and not simply because convictions are unlikely given the prior legal blessing these techniques received. (As a civil rights and criminal defense lawyer, I am the patron saint of lost causes, and do not count probable failure as a reason to refrain from embarking down an honorable path.)

I oppose such prosecutions for a host of other, more important reasons. For decades, Americans have been so enamored with courts that they have come to believe they can litigate their way out of any problem, and that every national dilemma can be solved by filing a lawsuit.

Prosecutions typify this mindset. Crime, at least in the United States, is imagined as simply a deliberate failure on the part of bad people, solved by nothing more complex than a good old-fashioned courtroom whooping.

In that way, prosecution substitutes punishment for wisdom, and retribution for understanding. There is no larger lesson to be learned – only blind justice to be administered. The deeper pathologies of American life that led to this behavior are simply irrelevant.

I’ve been a criminal defense lawyer for many years, so I know the dirty little secret about courtrooms that Americans try so hard to hide: We like to tell ourselves and the rest of the world that trials in the United States are a search for the truth. But they are nothing of the kind.

American trials are carefully scripted and strictly controlled processes undertaken to answer a very narrow and particular question: Did Person A violate Statute B by engaging in Behavior C?

Larger inquiries into an actor’s motivation are almost always excluded, as are digressions into the broader implications of what was done, to say nothing of whether the law represents good or bad policy. A judge would no more allow a trial to be hijacked by these issues than he or she would allow the accused to address the jury from atop an elephant in a circus tent.

My client was wronged, but that doesn’t make a trial right.

What matters about the American torture program cannot emerge from any trial. The most important questions to be answered now are questions of national identity, and they cannot be asked, let alone answered, in a courtroom.

Many journalists, and most of my friends on the left, are surprised and disappointed at my views.  They seem to think I should support prosecutions because of what was done to my client.

My client was wronged, but that doesn’t make a trial right.

I can tell you that I have discussed all this with Abu Zubaydah, but because the government will not let me, I cannot tell you what he said. I think I can say, however, that most people would be surprised by his views as well.

Joseph MarguliesJoseph Margulies has been at the forefront of the effort to prevent abuses in the post-9/11 era. He is currently counsel for Abu Zubaydah, whose 2002 interrogation lead to the Bush Administration’s “torture memos” and whose name is mentioned over 1,000 times in the "CIA Torture Report". Margulies is also Visiting Professor of Law and Government at Cornell University.