Guantanamo detainee waterboarded 83 times by CIA can sue UK Government

Danielle Sheridan
Wed, 20 December 2023 

Abu Zubaydah has been detained by the US authorities since his capture in Pakistan in 2002. In 2006, he was sent to Guantanamo Bay in Cuba where he has been held ever since - U.S. Central Command

A Guantanamo Bay detainee who was waterboarded 83 times by the CIA has won a Supreme Court appeal to use English law in his case against the UK Government.

Zayn al-Abidin Muhammad Husayn, a Palestinian man who is widely known as Abu Zubaydah, is bringing a claim against the Foreign, Commonwealth & Development Office (FCDO), the Home Office and the Attorney General over alleged complicity in his torture.

Mr Zubaydah has been detained by the US authorities since his capture in Pakistan in 2002 and in 2006 was sent to Guantanamo Bay in Cuba, where he has been held ever since.

The High Court previously heard Mr Zubaydah claim he was “arbitrarily detained” at CIA-run “black site” prisons in Thailand, Poland, Morocco, Lithuania and Afghanistan, where he was “subjected to extreme mistreatment and torture”.

Claims against UK Government

Mr Zubaydah argues that the FCDO, Home Office and Attorney General are “vicariously liable” for multiple wrongs against him, including conspiracy to injure and false imprisonment.

He has not suggested that UK forces were involved in his capture, rendition to the “black site” facilities or were present during his mistreatment and torture.

However, he claims that security services MI5 and MI6 were aware he was being subjected to extreme mistreatment and torture at the hands of the CIA from at least May 2002 and still sent “numerous” questions to the agency to be used in interrogations.

The High Court was previously asked to decide whether English law applies to Mr Zubaydah’s claim, or whether it should be the law of the six countries in which he was detained.

In a judgment in February 2021, a High Court judge ruled the law of the six countries in which he was detained applied to his case. This decision was overturned by the Court of Appeal last year and, in a majority ruling on Wednesday, the Supreme Court upheld the appeal court’s decision.

The Government departments have neither admitted nor denied that they knew where Mr Zubaydah was being held from time to time, or that they knew how he was being treated, arguing they cannot do so for national security reasons.

However, four justices at the UK’s highest court found there were “substantial factors” connecting the allegations with the UK.

Giving the majority ruling, Lord Lloyd-Jones and Lord Stephens said: “In our view, the claimant has established a compelling case in favour of the displacement of the general rule in the unusual circumstances of this case.”

However, in a dissenting judgment, Lord Sales said it was “highly significant that the claimant sustained his personal injuries and was imprisoned in the six countries”.