End 15 Years Of Injustice

Abu Zubaydah Waives Immunity to Testify About His Torture in a Military Commission Trial at Guantánamo

Abu Zubaydah photographed by representatives of the International Committee of the Red Cross at Guantánamo in 2012. The photo was released by Mark Denbeaux, one of his attorneys, in May 2017.

POSTSCRIPT May 20: Please read Andy Worthington''s important update, Abu Zubaydah Will Not Testify at Guantánamo Military Court Because the US Government Has “Stacked the Deck” Against Him.

By Andy Worthington, May 19, 2017

Last week, Mark Denbeaux, a civilian lawyer for Guantánamo prisoner Abu Zubaydah (aka Zayn al-Abidin Muhammad Husayn), stated that his client was prepared to waive immunity from potential prosecution in order to testify about conditions at Camp 7, Guantánamo’s most secretive block, where 15 of the remaining 41 prisoners — the so-called "high-value detainees" — are held.

Zubaydah’s case is central to understanding the brutality, mistakes and cover-ups of the "war on terror" that George W. Bush embarked on after the terrorist attacks of September 11, 2001. Seized in a house raid in Faisalabad, Pakistan, on March 28, 2002, he was held in CIA "black sites" in countries including Thailand and Poland, was subjected to the ancient torture technique of waterboarding on 83 separate occasions, and was initially touted as the number three in al-Qaeda. In the years since, however, the U.S. government has walked back from its claims, recognizing that Zubaydah was not a member of al-Qaeda, and had no advance knowledge of the 9/11 attacks. For further information, see my most recent articles about his case, 15 Years of Torture: The Unending Agony of Abu Zubaydah, in CIA Black Sites and Guantánamo and Convincing the U.S. He Wasn’t Part of Al-Qaeda: Abu Zubaydah’s 2008 and 2009 Declarations Regarding His Torture.

Desperate to justify Abu Zubaydah’s imprisonment, the U.S. authorities have come up wth spurious claims that he was the head of a militia aligned with al-Qaeda, but no one has been sufficiently confident in the claims to put him forward for a trial. Just ten of the remaining prisoners are facing, or have faced trials. Five others were approved for release by review boards under President Obama, but failed to make it out of the prison before Donald Trump took over, while Zubaydah joins 25 others as "forever prisoners," men who, the U.S. claims, can continue to be held indefinitely without charge or trial.

These men are all eligible for Periodic Review Boards, a high-level, parole-type process that led to 38 men being recommended for release between 2013 and 2016, but although those decisions were acceptable as a way of approving low-level prisoners for release, in the face of cynical Congressional obstruction to the release of any prisoners, the PRBs should not be seen as somehow justifying the ongoing imprisonment without charge or trial of the 26 others, including Zubaydah, whose PRB approved his ongoing imprisonment last September, because, to be blunt, there is no justification for holding anyone endlessly without charge or trial.

Zubaydah is seeking to testify in the case of Ramzi Bin al-Shibh, one of five men accused of involvement in the 9/11 attacks. For a year, Bin al-Shibh’s lawyers have sought Zubaydah’s testimony to bolster their client’s claims that "somebody is intentionally harassing him with noises and vibrations to disrupt his sleep," as Carol Rosenberg described it for the Miami Herald, adding that Bin al Shibh "argues that the circumstances prevent him from helping craft his legal defence."

Zubaydah was actually supposed to testify last year, and prison guards brought him to the courtroom door, until his military lawyer, Navy Cmdr. Patrick Flor, objected, seeking reassurance that nothing his client said could not be used against him in a future prosecution. The judge and the chief prosecutor both refused, and so Zubaydah failed to testify.

Now, however, as Mark Denbeaux, one of Zubaydah’s civilian attorneys, explained in a letter to the defence team at the Pentagon, which we’re cross-posting below, he is waiving his immunity, and "is prepared to testify to all issues, including the sights, smells, sounds and other conditions within Camp 7." Denbeaux added, "The underlying issue appears to be how closely the at-issue conditions parallel some of the other torture techniques used in the CIA dark sites. My client can draw upon his personal experience to address this issue."

Denbeaux also explained how, in addition, Zubaydah wants to testify "to celebrate his survival and to let the world hear his voice and to see him." His testimony is scheduled to take place tomorrow, May 19.

As Rosenberg noted, Denbeaux released the letter and two previously unseen photos of Zubaydah "in an increasingly public campaign to try to pressure the Pentagon to put Zubaydah on trial, rather than hold him as a 'forever prisoner.'"

Although the authorities acknowledge, in the latest assessment for the Periodic Review Board process, that Zubaydah "has continued to show a high level of cooperation with the staff at Guantánamo, serves as an intermediary between the detainees in his cell block and Guantánamo staff and has not committed any disciplinary infractions since 2012," they also continue to describe him, inaccurately, as "probably" one of Osama bin Laden's "most trusted facilitators."

In a letter to the chief prosecutor, Army Brig. Gen. Mark Martins, in February this year, Denbeaux accused him of working with the CIA to deny him a trial that would result in details of his torture being publicly revealed. For his part, Brig. Gen. Martins "has consistently refused to discuss who he might charge," but "a prosecution target list included in court papers did not include" Zubaydah, as Rosenberg described it, adding that Ali Soufan, the first FBI agent to interrogate him, before the CIA intervened to torture him instead, told the Miami Herald last year that Zubaydah’s case represents "the A to Z of where we went wrong as a nation."

Below is the full text of the letter from Mark Denbeaux explaining why Abu Zubaydah is waiving his immunity:

Letter from Mark Denbeaux to James Harrington and Alaina Wichner of the Military Defense team at the Pentagon, sent on May 4

This is to advise you that our client Abu Zubaydah has agreed to waive his immunity and testify at the upcoming hearing. I understand this hearing is addressing only the conditions in the Camp 7. He is prepared to testify to all issues, including the sights, smells, sounds and other conditions within Camp 7. The underlying issue appears to be how closely the at-issue conditions parallel some of the other torture techniques used in the CIA dark sites. My client can draw upon his personal experience to address this issue.

I want to make clear our reasons for this waiver and to make clear that we so waive his immunity on the condition that Commander Flor and I will be present in court to represent him.

There are many reasons for his voluntary waiver of immunity.

The first and most important is the truth:

Unlike the CIA, Zayn has nothing to fear from the truth. Abu Zubaydah will take the stand, unafraid of the truth that will emerge, confident that the world will come to know that he has committed no crimes and the United States has no basis to fear him and no justification to hold him for 15 years, much to less subject him to the torture that the world has so roundly condemned.

Unlike Abu Zubaydah, the CIA has everything to fear from the truth. When he testifies he will know that the Senate Select Committee on Intelligence (SSCI) has explicitly challenged virtually every allegation the CIA made against him. For example the SSCI report [the Senate torture report] found that immediately following the capture of Abu Zubaydah, the CIA repeatedly overstated the most basic false assertions regarding Abu Zubaydah. When the CIA alleged that he was the third highest ranking member of al-Qaeda and had been involved "in every major terrorist operation carried out by al-Qaeda," the Senate Select Committee determined that he was never a member of al-Qaeda.

The SSCI report demonstrated that the CIA’s false statements were not the result of mistakes which could be excused by negligence. The information provided by the CIA used to justify torturing him was worse than false — it was nonexistent. The Senate Committee on Intelligence repeatedly stated that the CIA allegations were without any support in the own files. Intelligence analysts may make mistakes about their information but they never make up facts for which they have no support. The difference between findings made with fabricated facts and findings based on mistaken facts is the difference between negligence and deliberate dishonesty.

Military Commissions refuses to charge him because of the fear that he will be exonerated and the truth about the CIA torture program will be revealed

The only value of immunity in real legal proceedings [is] to prevent one’s words from being used against him in a subsequent proceeding. But the Prosecution here in the Military Commissions is afraid to try him or even charge him with any crime. The failure to charge him, after 15 years of torture and detention, speaks eloquently. To charge him would be to reveal the truth about the creation of America’s torture program.

Fearful that the unspeakable torture of an innocent man will be an indelible black mark against the CIA, the Department of Justice and many others, the Military Commission’s Prosecutor has chosen not to prosecute Zayn Abu Zubaydah in order to conceal the truth about him. The Military Commission Prosecutor claims, year after year, that he will prosecute Abu Zubaydah someday but he continually refuses to do so. The single most important reason for Abu Zubaydah to waive immunity and to testify is to challenge BG Mark Martins, the Military Commission Prosecutor, to charge him or to confess that there is no basis for doing so and finally release him.

Celebration of Life and of Endurance

Perhaps the most personal reason for Abu Zubaydah to waive immunity is to celebrate his survival and to let the world hear his voice and to see him. He knows what the rest of the world does not know: that the CIA torturers sent two cables to CIA headquarters from the dark site just prior to the beginning of his torture: one cable insisted that, in the event of his death during torture, that he be cremated immediately. The other cable sought assurances that in the event that he survived that he would be held incommunicado and forever detained.

The act of testifying will allow Zayn to celebrate his survival after years of torture and to allow him to be seen and to allow his voice to be heard by people other than his torturers, his prison guards, and his own attorneys.

He will be held incommunicado no more.

Mark P. Denbeaux
Lead Civilian Military Defense Counsel for Zayn Abu Zubaydah