Alex Gibney
Since 2002, Zubaydah, who has never been charged with a crime or allowed to challenge his detention, has been imprisoned, mostly at Guantánamo Bay. A case involving him is now before the U.S. Supreme Court.
During oral arguments on Oct. 6, justices asked lawyers for the U.S. government why Zubaydah was prevented from testifying about his torture at a former CIA black site in Poland. Government attorneys later told the high court that Zubaydah was free to discuss the interrogation techniques that were used on him. In the underlying case, Zubaydah sought to subpoena CIA contractors James Mitchell and John Bruce Jessen, the architects of the so-called "enhanced interrogations."
Gibney's documentary shows how lawyers in Bush's "war council" — DOJ official John Yoo, White House counsel Alberto Gonzalez, Vice President Dick Cheney's counsel, David Addington, and John Rizzo, the acting general counsel for the CIA — worked with the U.S. Department of Justice, then led by U.S. Attorney General John D. Ashcroft, to purportedly manufacture a legal cover for the use of the controversial techniques.
Yoo, now a professor at University of California, Berkeley School of Law, and Ashcroft, now a professor at Regent University School of Law and chairman of consulting firm The Ashcroft Group LLC, did not return messages seeking comment. Addington did not return a message passed to him by the National Federation of Independent Business, a trade group where he serves as vice president, chief legal officer and general counsel. Gonzales, who serves as the dean of Belmont University College of Law, declined to comment. Rizzo died in August.
The documentary features Mitchell, a psychologist who proposed and performed waterboarding on Zubaydah, and Ali Soufan, a former FBI special agent who witnessed the interrogations and later wrote a book about them, which the government heavily redacted.
Gibney, who won an Oscar for the 2007 documentary "Taxi to the Dark Side" about an Afghan taxi driver who was beaten to death while in detention at a U.S. military base, talked to Law360 about the process of making his new movie and the legal personalities he portrayed in it.
This interview has been edited for length and clarity.
How did you get involved with Abu Zubaydah's story?
I have a long history with this story. I made a film in 2007 called "Taxi To The Dark Side" and in that film, we were pretty early in terms of identifying the CIA's likely role in torture. At the time, we didn't know what would later be revealed.
Over the years, I became increasingly interested in trying to understand how and why the CIA went down this path. A pal of mine, Ray Bonner, suggested that he wanted to do the story of Abu Zubaydah. I wasn't sure whether I wanted to return to the same territory. But the more I thought about it, the more I thought it would be interesting to go there to understand how and why this started, particularly since the CIA knew and testified before Congress that these techniques were ineffective and immoral.
Tell us about the hurdles you faced while working on this film.
The major hurdles, which is kind of the subject of the film, are these rapacious policies of secrecy, and one which is misused and abused constantly. One of the things I learned when I did my film about WikiLeaks was that it's supposed to be as big a deal to improperly classify material as it is to release classified material without authorization, but it's never treated that way.
The agencies get away with murder when it comes to redacting stuff, usually, for either very dumb reasons, or for reasons relating to avoiding embarrassment, which is not supposed to be a rationale for classification. So the biggest obstacle, I would say, was secrecy. And it continues to be an obstacle course, because even in our attempts to go down the FOIA route, we continue to get all sorts of ridiculous redactions in ways that just are intended to frustrate people trying to tell the true story.
How did you manage to get Ali Soufan's book unredacted?
With the help of the Media Freedom of Information Access Clinic at Yale Law School, Ray Bonner and I sued the CIA, and we said we want this book unredacted, we feel it's been unfairly redacted. And much to our surprise, in this case, the CIA backed down, and miraculously, most of it was unredacted. I don't know why, to be honest with you.
This happened during the Trump administration, and while Gina Haspel was director of the CIA. I can't tell you why they did. My suspicion is that the redactions in Soufan's case were so embarrassingly petty and punitive that it was never going to pass muster with a judge.
How did you get these government officials to talk to you for this movie?
Luckily for me, I was working on this project with a number of very talented journalists. One of them was Ray Bonner. The other person is a woman named Cathy Scott-Clark. She was the one who originally made contact with Mitchell. And to his credit, he agreed to sit down to a very lengthy interview, where myself, Ray and Kathy interrogated him at great length about his role. I suspect that, to some extent, he was persuaded that we would listen to his testimony.
In terms of Rizzo, he's an interesting guy. Sadly, he passed away recently, but I think he was persuaded that we would be honest brokers in terms of hearing his testimony.
Do you think remorse or guilt played a role in these people opening up to you for this project?
Well, it may be unconscious. You can see from the film itself that Mitchell doesn't display an awful lot of remorse. He indicates at one point that the CIA pushed him to go further than he felt comfortable.
I suspect there was some remorse on the part of Rizzo. Very often, I think, his conscience was in the right place. But in that environment, and with so many voices arrayed against him, I think he didn't feel capable of resisting.
Is it fair to say that the "enhanced interrogation" regime wouldn't have been possible without the work of lawyers to justify it and enable it?
A hundred percent. That's really the hidden story of this. It is the terrible role that lawyers played in terms of rationalizing this behavior, or legalizing it, or trying to legalize it. I think they very much knew what they were doing, but they rationalized their behavior.
We have [former chief of staff to Colin Powell] Lawrence Wilkerson in the film saying, "there are two kinds of lawyers: 'Tell me what you want to do, boss, and I'll tell you if it's legal' or 'Tell me what you want to do, boss, I'll tell you how to make it legal'."
He was saying that, mostly, it was the latter kind of lawyer who were the forward-leaning characters who allowed this to happen. Obviously, John Yoo was a key person, but they were getting a great deal of support, clearly, from the executive branch.
What's your favorite moment in the movie?
The legal moment that made me want to do the film — the really chilling moment — is a [CIA] memo saying, "Rest assured, [Zubaydah] will remain 'incommunicado' for the remainder of his life." So that was the phrase that really rocked my world: the idea that the fundamental aspect of the law, habeas corpus, is routinely disregarded by the CIA and that we can create a kind of gulag where people just disappear or aren't allowed to speak. And, indeed, that's where Zubaydah sits today in Guantánamo.
--Additional reporting by Daniel Wilson. Editing by Rich Mills.