“The Evolution of the 'Forever Prisoner', State Complicity, The Road from Faisalabad to Guantánamo and Worldly Justice"
1.
INTRODUCTION
In
the aftermath of the September 11 attacks, the global intelligence and counter-terrorism
landscape stepped forward aggressively, with many hundreds of individuals taken
into custody worldwide. But now as per human rights reports and publicly
available records, the U.S. detention camp at Guantánamo Bay, which opened in
January 2002, holds a very small number of detainees in comparison to the peak
years following its establishment.
Zain
al-Abidin Muhammad Husain (also known as Abu Zubaidah), a Palestinian
citizen, arrested in Faisalabad, Pakistan, in March 2002, is one of few who is currently
under detention and in the context of modern criminal justice, his case story
is extremely rare and unprecedented also.
In
standard criminal justice procedures, the Scales of Justice typically weigh an accusation through three
stages: (1) being charged, (2) being tried, and (3) being released or convicted
to serve a pronounced sentence. However, in the case of Abu Zubiydah, the
accusations against him were never weighed through these established
procedures. Instead, a fourth 'gray'
stage was created for him i.e indefinite detention without charge or
trial.
If
we see, in spiritual and philosophical perspectives, humans can hide evidence,
use "state secrets" to cover up torture, or keep someone in a "gray
stage. But in the system Allah created, there are no "gray stages".
Henceforth, January 2026 will be remembered as a turning point for
accountability, when The British government finalized a substantial settlement
with Abu Zubaidah, essentially acknowledging that MI5 and MI6 were complicit in
his mistreatment.
This
paper explores the “WHAT” facts of the case, to the "WHY" failure of
the laws and the "HOW MUCH” the ethical cost.
2. 2. EVADING
THE THREE STAGES OF LEGAL SYSTEM:
After,
the September 11 attacks, the CIA was aware of Abu Zubaydah. Because he
allegedly helped manage the Khaldan camp in Afghanistan during the 1990s
(a camp where many fighters trained) . The intelligence agencies had built a
profile of him as a "master facilitator."
Following
the 11 September 2001 attacks, the CIA
focused its attention on Abu Zubaidah, largely due to his alleged role in
managing the Khaldan training camp in Afghanistan during the 1990s.
Intelligence agencies had developed a profile of him as a 'master facilitator.
In
early 2002, after the Taliban lost power in Afghanistan, U.S. intelligence
agencies (the NSA and CIA) tracked
satellite phone transmissions and digital communications originating from
Afghanistan. These communications led them to several 'safe houses' in
Faisalabad, Pakistan. One of these houses was nicknamed the 'Husayn House. Because
they intelligence agencies believed it belonged to a man named Zain al-Abidin Muhammad
Husayn (Abu Zubaydah). Consequently, on 28 March 2002, a joint raid by
Pakistani and U.S. forces was launched, resulting in Abu Zubaydah’s arrest
while he was in a severely injured condition.
Immediately
thereafter, there were and remain no publicly available official records or
documentation in Pakistan confirming whether he was rushed to a hospital,
underwent surgery, received life-saving treatment, was booked in any FIR, taken
to any detention center, or produced before a court for remand following his
arrest. His arrest was publicly announced around March 30–31, 2002, when U.S.
officials confirmed that the person captured was Abu Zubaydah. Subsequently, On
April 1, 2002, during a Rose Garden event regarding the "No Child Left
Behind" initiative. US President George W. Bush answered a question on the
war on terror and described as:
“The
recently captured Abu Zubaidah, he’s a,
he’s a person who wrote the manual on how to, how to murder innocents. He’s a fellow who was a, is a close associate of bin Laden’s.
He’s a man who, he’s one of the top three leaders. And he’s no longer,
he’s no longer in a position to, to plot and plan”
After
the President publicly labeled him a 'top three' leader who 'plotted and
planned,' the CIA faced immense pressure to extract actionable intelligence.
Consequently, he was moved through a network of secret overseas 'black sites'
and became the first detainee subjected to 'Enhanced Interrogation Techniques'
(EITs).
His
secret detention lasted for four and a half years. During this period, he was
held in a network of secret overseas “black sites.” His detention was finally
publicly acknowledged on September 6, 2006, when President George W. Bush
announced that Abu Zubaydah and thirteen other “high-value detainees” had been
transferred from CIA custody to Guantánamo Bay.
This
announcement prompted several detainees, including Abu Zubaydah, to seek
judicial review of their detention. Consequently, in Boumediene v. Bush (2008),
the U.S. Supreme Court ruled that Guantánamo detainees are entitled to the
constitutional right to challenge the legality of their detention in U.S.
federal courts through habeas corpus petitions. Following this ruling, Abu
Zubaydah initiated habeas corpus proceedings in the U.S. District Court for the
District of Columbia. In response to his petition in 2009, the U.S. government
submitted a document titled “Statement of Undisputed Facts.” However, the
document did not set out any criminal charges in the conventional sense.
Instead, it sought to justify his continued extrajudicial detention by designating
him an enemy combatant under U.S. law and the Authorization for Use of Military
Force (AUMF).
While
this argument may appear nonsensical at first glance, it in fact follows a
legally grounded logic. It stems from the Authorization for Use of Military
Force (AUMF), enacted on September 14, 2001, that is a brief but far-reaching
legislative authorization that has provided the legal basis for justifying such
detentions. Section 2(a) of the AUMF states:
“...the
President is authorized to use all necessary and appropriate force against
those nations, organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001,
or harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the United States by such nations,
organizations or persons.”
The
U.S. Supreme Court, particularly in Hamdi v. Rumsfeld (2004), further
interpreted this provision by holding that the phrase “necessary and
appropriate force” includes the power to detain people as long as active combat
operations are ongoing. This interpretation effectively provided legal support
for a position of prosecution or US government authorities, that is summarized
as follows:
The
U.S. government was not in a position to prove that the detainee had committed
a specific criminal offense; instead, it sought to demonstrate that the
individual was “part of” or had substantially supported forces such as Al-Qaeda
or the Taliban, which allowed for detention until the end of the conflict.
Accordingly,
in the case of Abu Zubaydah, the U.S. government did not bring any specific
criminal charge in the conventional sense, such as murder or theft. Instead, it
focused on demonstrating before the court that he was “part of” or had
“substantially supported” Al-Qaeda or the Taliban, thereby seeking to justify
the lawfulness of his continued detention without trial.
The
legal journey of Abu Zubaydah’s habeas corpus petition is one of the
longest-running and most complex in U.S. history. The U.S. District Court for
the District of Columbia reviewed the case and accepted the government’s
evidence and reasoning, effectively upholding his continued detention under the
Authorization for Use of Military Force (AUMF) rather than ordering his
release.
Abu
Zubaydah’s lawyers challenged his detention in the D.C. Circuit Court of
Appeals, but that court agreed with the lower court and rejected his case. The
matter was then taken to the U.S. Supreme Court. However, the Supreme Court did
not make a clear decision about whether his detention was legal, whether he
should be formally charged and tried, or whether he should be released. It also
did not transfer the case to another forum. Instead, it handled the case
indirectly by avoiding the main issues. The Court chose not to decide on the
core questions, such as the legality of his detention or whether he could be
held without charges or trial and instead dealt only with limited procedural or
related matters, rather than the main issue of habeas corpus. So, by not making
a final decision on the main questions, the Supreme Court allowed the matter to
remain unresolved at its level and continue under existing decisions and
government authority.
In
result, the case did not end in a practical sense, and it also did not move
forward in the way that legal experts might expect, such as through a clear
release, trial, conviction, acquittal or full dismissal.
Thereafter,
since 2010 up until now, the case has been under administrative review by the
Guantánamo Periodic Review Boards (PRBs). These boards have repeatedly reviewed
Abu Zubaydah’s detention and have consistently recommended that his detention
continue. However, these PRB proceedings are administrative in nature and are
not judicial decisions or court verdicts.
3. THE CREATION OF
FOURTH STAGE.
Thereafter,
the situation evolved in a way that sought to justify the continued detention
of Abu Zubaydah without trial, conviction,
or acquittal. The government has been unable to prosecute him because key evidence
is either inadmissible, possibly due to its connection to enhanced interrogation
techniques or insufficient to support a conviction. In addition, relevant
evidence is spread across multiple jurisdictions, including his arrest in
Pakistan and alleged crime scenes in other countries such as Afghanistan, which
further complicates prosecution. Side by side, releasing him has been viewed as
a risk to national security, along with concerns related to state secrets. As a
result, a de facto fourth stage, prolonged or indefinite detention without
trial, has emerged within the rule-of-law framework, raising significant legal
and constitutional concerns particularly under international human rights and
humanitarian law, which affect multiple countries in several ways;.
First,
prolonged or
indefinite detention without charge or trial raises concerns
under the International Covenant on Civil and
Political Rights, particularly the right to liberty and security of
person and the prohibition of arbitrary detention. Holding someone for years
without trial or a clear legal endpoint can be viewed as “arbitrary” under
international standards.
Second,
the alleged use of enhanced
interrogation techniques engages the absolute prohibition of
torture under instruments such as the Convention
Against Torture. If evidence is obtained through torture, international
law not only condemns the act itself but also discourages reliance on such
evidence in legal proceedings.
Third,
under international
humanitarian law, including the Geneva
Conventions, detention in armed conflict must follow clear legal
categories (e.g., prisoners of war or civilian internees) and include
procedural safeguards. A situation where an individual does not neatly fit
these categories, yet remains detained indefinitely, creates legal ambiguity
and concern.
Fourth,
there are fair
trial guarantees. International law requires that anyone
accused of wrongdoing be given a prompt and fair trial by a competent tribunal.
When prosecution is avoided due to evidentiary issues, but detention continues,
this can undermine those guarantees.
Finally,
because the case involves multiple jurisdictions (e.g., capture in one country,
alleged acts in another, detention by a third), it raises issues of state responsibility and
cooperation. Different states have obligations to prevent
arbitrary detention and torture, and potential failures at any stage—capture,
transfer, interrogation, or detention—can implicate international
responsibility across borders.
4.
WORDLY JUSTICE:
When
we look at worldly justice, we find this a system shaped entirely by human
limitations that more often than not, fails to deliver a perfect resolution and
ends instead in financial settlements, messy compromises, and clever legal
maneuvers. Yet, the only force that keeps the wheels of this justice system
turning is the deep, unwavering belief of the people who refuse to give up and
holds onto the powerful maxim, 'Justice may sleep, but it never dies,'
that imbibes the ultimate duty of an individual, to remain resilient and stay
in the struggle because the legal system doesn't automatically protect people; it requires active,
persistent effort to force it to work. Might be, following
through on this duty and also we must recognize or appreciate the nearly two
decades of long-standing struggle by Abu Zubaydah and his lawyers, who fought
numerous, extremely tiring legal battles to seek justice.
As
a result, worldly justice did not deliver his immediate freedom or a public
trial, but it forced a massive crack in the wall of silence and delivered three
major victories:
A. The
United Nations and European courts officially cleared his name, explicitly
ruling that he was never a member of al-Qaeda, and exposing that his initial
capture and torture were based on a case of mistaken identity.
B. High
courts in Europe ordered countries like Poland and Lithuania to pay damages for
aiding his secret detention.
C. The
British government settled out of court and paid substantial compensation for
its intelligence agencies' complicity in his interrogation process that
occurred during his "disappearance.
Instead,
the U.S. government repeatedly invoked the 'State Secrets Privilege,' arguing
that revealing details of his capture or treatment would harm national
security; consequently, he continues to be held indefinitely as a 'forever
prisoner' without formal charges or a trial.
5.
A CATALYST FOR INQUIRY:
In January 2026, I read
the news regarding the official announcement that the British government had
agreed to pay a 'substantial sum' to settle Abu Zubaydah's lawsuit over their
intelligence agencies' complicity in his torture. Following the settlement, his
lawyers publicly pressured the UK government to use its diplomatic weight to
push the United States for his immediate release from Guantanamo Bay. This
development captured my attention, prompting me to seek further details from
different AI engines, where I learned that a terrifying 'Fourth Stage'—the
'Forever Prisoner'—has now emerged within the criminal justice system.
By:
Farhan Khaliq Anwer,
Advocate Supreme Court Pakistan.
duaapk@hotmail.com
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