Is the US Government Preparing to Charge Accused Terrorist Abu Zubaydah With War Crimes?

Abu Zubaydah, a citizen of the Palestinian territories held in Guantanamo Bay.Abu Zubaydah, a citizen of the Palestinian territories held in Guantanamo Bay. (Photo: Department of Defense)The Department of Defense (DoD) won’t release under the Freedom of Information Act (FOIA) six volumes of diaries written by Zayn al-Abidin Muhammad Husayn, better known as accused terrorist Abu Zubaydah, nor will DoD release six pages of the Guantanamo prisoner’s sketches that depict the torture he was subjected to while in CIA custody because it could taint his prosecution before a military commission, according to FOIA response letters sent to Truthout.

Withholding the materials because their release would interfere with Zubaydah’s prosecution before a military commission is curious because Zubaydah has not been charged with war crimes before a military commission.

Last May, Zubaydah’s habeas attorneys sent a letter to retired Vice Adm. Bruce MacDonald, the convening authority of the military commissions at Guantanamo, stating that Zubaydah wished to be charged with war crimes “at the earliest possible date.” The move was seen as an attempt to bring an end to ten years of legal limbo pertaining to his case. MacDonald told the habeas attorneys that if the chief prosecutor decides to prosecute Zubaydah, MacDonald would then decide “whether to refer any sworn charges to trial by a military commission.”

But now, Zubaydah may get his wish. As of January 15, two days before DoD responded to Truthout’s FOIA requests, the Office of the Chief Prosecutor placed Zubaydah on a list of “horizon cases” the Office of Military Commissions “projects to be on the trial ‘horizon'” over the next three years, according to an email Truthout that Air Force Col. Karen Mayberry, the military commissions chief defense counsel, circulated late Thursday to military commissions defense attorneys. She sent the email after meeting with Guantanamo Chief Prosecutor Mark Martins earlier in the week, several military defense attorneys told Truthout.

Truthout filed two separate FOIA requests for Zubaydah’s diaries and sketches in September and October 2011. In the January 17 response letters signed by Paul Jacobsmeyer, head of the DoD’s FOIA office, Jacobsmeyer said, “The public release of the diaries [and sketches] could reasonably be expected to interfere with and prejudice the prosecution of Abu Zabaydh [sic] by the DoD Office of the Chief Prosecutor of Military Commissions before a Military Commission at Guantanamo Bay, Cuba.”

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist forces in Afghanistan. The injury “significantly impaired both his long- and short-term memory,” states a January 14, 2009, motion his attorneys filed in federal court related to his diaries.

“Long after his 1992 injury, once [Zubaydah] had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost.”

The government acknowledged in 2009 that its case against Zubaydah is based entirely on the first six volumes of his diaries that he wrote beginning in 1992 and an undated “propaganda” video in which a bearded man the government says is Zubaydah appears on camera voicing his solidarity with Osama bin Laden and al-Qaeda.

As Truthout first reported last May, the government subpoeaned Zubaydah’s younger brother, Hesham Abu Zubaidah, a US resident and former FBI informant, to testify before a federal grand jury in October 2010 to confirm that the man in the propaganda video was his brother, the accused terrorist whose significance has been the subject of fierce debate for more than a decade.

The Defense Department noted in its response letter to Truthout’s FOIA request that “certain pages of the translated six volumes” of diaries were released during the February 2011 sentencing hearing in the war crimes trial of Noor Uthman Muhammed, who was captured with Zubaydah on March 28, 2002 at a safe house in Faisalabad, Pakistan, in a raid jointly conducted by the CIA, the FBI, Pakistani police and Inter-Services Intelligence, Pakistan’s intelligence agency. Zubaydah’s diaries and the propaganda video were seized from the safe house after the raid.

In one page of an excerpt from his diary released by the government, Zubaydah writes:

The Pakistani newspapers are saying that I am in Peshawar, trying to reorganize AI-Qa’ida Organization, for war against the Americans, and that I am the heir of Bin Ladin, and Time [magazine] is saying that I know the Organization and those collaborating with the Organization more than Bin Ladin himself .. I wish they know that I am not with AI-Qa’ida, to begin with, and that I am with them in Ideology and body, etc …

The DoD invoked other exemptions to justify the withholding of Zubaydah’s diaries: to protect “information in law enforcement records that could reasonably be expected to constitute an unwarranted invasion of personal privacy” and “to protect the privacy of individuals identified in the diaries.”

His diaries were also deemed “protected” from disclosure by a federal court judge presiding over Zubaydah’s habeas corpus case, Jacobsmeyer’s letter stated.

Jacobsmeyer noted that Megan M. Weis, the associate deputy general counsel in the DoD, made the decision to completely withhold all responsive records because their release “could reasonably be expected to interfere with enforcement proceedings,” according to an exemption cited in the letter that authorizes the withholding of records “compiled for law enforcement purposes.”

Truthout is appealing the decision.

Brent Mickum, Zubaydah’s defense attorney in habeas corpus proceedings, said he has not been told that the government is planning to prosecute his client before a military commission.

I always expect to be the last one to be informed about these matters,” Mickum said. “It highlights everything that is wrong with the legal process. It is completely unprofessional, based on any legal standard that has been recognized over the past 100 years, and I have practiced for thirty years. If the government has any intention of charging my client I think they have a duty to inform me about it.”

Mickum added that the “legal process” pertainin to Zubaydah “is, and continues to be, a joke, whether under the auspices of habeas corpus or the supposititious procedures referred to as ‘military commissions’ that the entire world knows is a sham.”

Nearly seven years ago, President George W. Bush announced that Zubaydah and 13 other high-value detainees were to be prosecuted by a military commission. Currently, Abd al-Rahim al-Nashiri, the alleged mastermind behind the 2000 bombing of the USS Cole, Khalid Sheikh Mohammed and four other alleged 9/11 co-conspirators are being prosecuted before military commissions.

The US government has claimed for more than a decade that Zubaydah was “one of the highest-ranking members of the al-Qaeda terrorist organization” and “involved in every major terrorist operation carried out by al-Qaeda,” including the 9/11 attacks.

Nonetheless, the Obama administration’s Justice Department quietly recanted nearly every major claim leveled by the Bush administration against Zubaydah, admitting that the government’s “understanding of [Zubaydah’s] role in terrorist activities has … evolved with further investigation.”

Zubaydah, who has been held since 2006 in a section of Guantanamo reserved for detainees formerly in the custody of the CIA, drew pictures of the torture techniques he says he endured while held at CIA black site prisons in Europe. Mickum, previously told Truthout the alleged terrorist is a “pretty good artist.”

The revelation by DoD that “six pages of sketches were identified as responsive to your [FOIA] request” appears to be the first public acknowledgement by the government that such materials exist.

The infamous “torture memo” drafted in August 2002 by then-Justice Department attorney John Yoo was created specifically to authorize the CIA to torture Zubaydah using techniques such as the controlled drowning method known as waterboarding, which was videotaped during Zubaydahs’ interrogation sessions.

Mickum, who has represented Zubaydah since 2008, said in lieu of the videotapes, which were destroyed, the drawings Zubaydah made – some on smaller pieces of paper – contain the best-known description of the torture techniques CIA interrogators used against him.

Although he was unable to describe the sketches due to the classified nature of the materials, Mickum, who holds a top-secret security clearance, said the sketches “show oxygen deprivation can happen in different ways.” Mickum added that some of the drawings were not just of Zubaydah, but of two other prisoners who also apparently were tortured.