Torture Diaries Should Be Given to Defense Counsel

Guantanamo detainee Abu Zubaydah is expected to finally gain access to diaries he wrote during the years while he was being tortured by CIA interrogators. A federal court judge has ordered the government to turn over unredacted volumes of the diaries and other "specified" writings to defense attorneys representing Zubaydah.

Zubaydah was the first high-value detainee captured after 9/11. He was repeatedly waterboarded and subjected to brutal torture techniques by CIA interrogators at secret black-site prisons.

Although the order issued by US District Court Judge Richard Roberts on September 30 was filed under seal, Zubaydah's attorney, Brent Mickum, said in a Truthout interview that while he could not discuss the substance of the ruling, it was his opinion that the order "should have been made public from the get-go" because "there's nothing in [the order] that should be considered classified."

In his motion, Mickum asked for original copies of the diaries to be released. It is not known whether Roberts' order required the government to produce original versions of Zubaydah's diaries. However, it is believed that Roberts' order applies to three volumes of diaries Zubaydah wrote between 2002 and 2006, the time he spent in CIA custody and was tortured.

Those volumes, identified as seven, eight and nine, "were drafted while [Zubaydah] was in CIA custody," according to court papers filed by Mickum last January. "Volumes 10 and 11 were completed in [Department of Defense] custody at Guantanamo, after September 2006; only these last two volumes, written after [Zubaydah] was transferred from CIA to DoD custody, were given to counsel in late 2008 by [Zubaydah] because they were in his possession."

Mickum said he already has access to volumes one through six and 11 and 12. Though volumes one through six are unclassified, they have been designated by the government as "protected" and are not publicly available.

In a public summary describing his order, Roberts wrote that Mickum's motion for "a preservation order and additional relief will be granted in part and denied in part, and [his] motion for an order requiring the [government] to return unredacted versions of [Zubaydah's] diaries and other specified writings to him will be granted in part and denied in part."

The diaries have been the subject of legal wrangling for years. Justice Department attorneys in both the Bush and Obama administrations have argued that releasing unredacted copies of the diaries would constitute a threat to national security because they contain names of government employees, including an FBI agent, and names of individuals who assisted in translating the diaries from Arabic to English, plus information about ongoing counterterrorism efforts.

Mickum has filed numerous motions in federal court accusing the government of improperly classifying the diaries - even after portions have already surfaced in public documents - and abusing the classification process related to other materials in Zubaydah's case.

For example, last August Mickum filed court papers seeking additional copies of Zubaydah's medical records and an in-person medical evaluation, both of which Mickum says he needs in order to "challenge the lawfulness" of Zubaydah's detention. The court previously ordered the release of medical records related to the more than 200 seizures Zubaydah has suffered since being transferred to Guantanamo in 2006.

The Justice Department balked and filed its opposition in the matter under seal. Mickum objected to the government's "ongoing abuse of the classification system" in a motion he filed in federal court in June. The court hasn't ruled on that motion yet although it has been fully briefed on the matter.

Mickum said he has not been able to mount a meaningful defense because the government continuously denies his requests for documents related to Zubaydah's time in CIA custody.

"The government is preventing us from working up the case," Mickum said. "They are trying to keep things closely guarded."

A Justice Department spokesman would not return calls for comment regarding Judge Roberts' ruling.

Zubaydah has written 11 volumes of his diary in a "slender bound notebook" and has started work on volume 12, according to court papers in the case filed last January. He wrote the first six volumes before his March 2002 arrest in Pakistan.

The government's case against Zubaydah is based heavily on entries contained in the first six volumes of his diaries, according to court papers. But the materials were designated by the government as "protected," even though the diaries are unclassified and both the defense team and Zubaydah have access to volumes one through six.

In a July 14 motion opposing the government's attempt to "protect" volumes one through six, Mickum said he is not permitted to inform Zubaydah "which passages the government relied upon" in the charges it prepared against him as outlined in the "factual return."

"The Government has redacted every reference to the unclassified volumes of [Zubaydah's] diary from the unclassified factual return," Mickum's motion states. "By removing every reference to the diary, the Government leaves very few of the relevant allegations against [Zubaydah] to be seen by the eyes of the public. Moreover, what is left is an incredibly misleading picture. For example, for several pages of the factual return, virtually the only words that are left unredacted are the names: Abu Hafs al-Masri, [al-Qaeda-in-Iraq leader] Abu Mas'ab al-Zarqawi, [self-professed 9/11 mastermind] and Khalid Sheik Mohammed, known al-Qaeda operative. What the public does not see if that the only reason these people are mentioned in [the government's] factual return is that they are alleged to have been in the same city as [Zubaydah]. The Government does not even allege [Zubaydah] had direct, or even indirect, contact with them.

"What possible explanation can the Government offer to justify that the diaries are unclassified but the quotations from the diaries upon which the government relies in the factual return are classified? There is none. By doing so, the Government simply demonstrates its disregard for the fact that the authority to designate unclassified information as protected properly belongs to the court.

"It is understandable that the Government would want to avoid the public criticism that may follow from an honest discussion of who [Zubaydah] was and how the Government mistreated him, but this is not a legitimate basis for sealing information [in his] case. [This is about] the Government's simple desire to keep information about [Zubaydah] and the case against him secret, primarily to cover up evidence contradicting its own public misstatements about [Zubaydah] as well as potential evidence of further as-yet-undisclosed government wrongdoing."

Mickum said diaries Zubaydah kept while in CIA custody will go a long way toward establishing the brutal treatment Zubaydah was subjected to - far surpassing what the public has learned thus far from declassified \Justice Department legal memos documenting the brutal methods, such as sleep deprivation and beatings, used by CIA interrogators against Zubaydah.

He added that the diaries contain a "list of names, dates and activities" that will assist the defense in generating leads and prove that Zubaydah was not a senior member of al-Qaeda.

But by designating the material as "protected," the government "severely hinders [the defense team's] ability to prepare [Zubaydah's] defense and vindicate his constitutional entitlement to habeas corpus at numerous levels."

Mickum opined that the government would force him to have potential witnesses sign an agreement stating that they would be bound by a protective order if he were to discuss the diaries with them. Mickum said that was impractical as his investigations "are taking place all over the world" and it would also have a "chilling effect" on foreign witnesses. "Counsel are right now seeking the cooperation of witnesses in foreign countries who can corroborate the substance of [Zubaydah's] defense, much of which is articulated in his diary," Mickum's July 14 court filing says. "The Government's attempt to designate the diary as protected, if granted, would preclude counsel from conducting such crucial investigations."

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist insurgents in Afghanistan. The injury left "significantly impaired both his long- and short-term memory," states Mickum's January 14 court motion.

"He cannot remember his father's name and dimly recalls that he looked like a movie star in the Arab world (whose name he cannot remember). He cannot remember the name of his business partner with whom he ran a news agency prior to his arrest. 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."

Dan Coleman, a former FBI agent who analyzed the diaries, said he was convinced that Zubaydah was "certifiable" and was not a high-level official in al-Qaeda as top Bush administration officials had claimed. Rather, Coleman said, Zubaydah was more like heavyweight boxing champ Joe Louis, who worked as a greeter in Las Vegas at the end of his life.

According to author Ron Suskind, Zubaydah's diaries were written in the voices of three people - Hani 1, Hani 2 and Hani 3, which, Suskind wrote in his book, "The One Percent Doctrine," helps establish that Zubaydah was mentally ill.

Furthermore, Suskind wrote, "Zubaydah was a logistics man, a fixer, mostly for a niggling array of personal items, like the guy you call who handles the company health plan, or benefits, or the people in human resources. There was almost nothing 'operational' in his portfolio. That was handled by the management team. He wasn't one of them."

Suskind's account closely matches what Jack Cloonan, a former FBI special agent assigned to the agency's elite Bin Laden unit, told me in a recent interview. Cloonan said the CIA and the Bush administration were flat wrong in designating Zubaydah as a top official in al-Qaeda. Zubaydah "wasn't privy to a lot of what I would consider to be a lot of really good operational details," getting most of his information secondhand, Cloonan said.

Mickum denies that Zubaydah was privy to any operational details of al-Qaeda.

"My client was never, ever, even a member of al-Qaeda, much less a high-level operative," Mickum told Truthout. "The camp he was alleged to have assisted was closed in 2000 by the Taliban. Leaders of the camp known as Khalden closed it rather than allowing it to fall under the control of Osama bin Laden and al-Qaeda because they disagreed with al-Qaeda's missions and attacks on innocent civilians." Cloonan agreed, for the most part, with Mickum's characterization of Zubaydah.

"We thought [Zubaydah] would be best described as a logistical officer who managed a series of safe houses and was a great travel agent," Cloonan said. "But to cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse ... I think was a mistake.... Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda."

There was also the question of Zubaydah's personality. "My partner had a chance to look at a lot of Abu Zubaydah's diaries, poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can't be trusted or be given huge amounts of responsibility," Cloonan said. "He just seemed mentally unstable.... "I'm not at all suggesting that Abu Zubaydah wasn't valuable. Anytime you get one of these guys and get their cooperation, I think [it] is a win. You can get information that's really valuable from people who are further down the food chain. It's how you get the information and whether you're getting real cooperation or simply compliance because somebody's either waterboarding you or gets you on sleep deprivation.

"We know, and the science tells us, that people cannot recall details accurately, they can't look at pictures, they will make things up if deprived of the bare essentials of life over the course of time. I don't understand how you could sleep deprive somebody for 11 days and expect this person to provide you with accurate information.

"Even if they wanted to they're probably so debilitated at this point they need to be rehabilitated before they ever give you anything."

Zubaydah's 2002 torture sessions were videotaped. But CIA officials destroyed the tapes and a special prosecutor was appointed to investigate whether federal laws were broken when the tapes were purged.

As I previously reported, CIA interrogators provided top agency officials in Langley with daily "torture" updates of Zubaydah. The extensive back-and-forth between CIA field operatives and agency officials in Langley likely included updates provided to senior Bush administration officials.

In justifying his torture, the Bush administration had maintained that Zubaydah was the No. 3 official in al-Qaeda and had information about pending terrorist attacks against the US. But documents, news reports, books and former FBI interrogators familiar with Zubaydah said he was a low-level figure in the terrorist organization and was mentally ill.

CIA interrogators waterboarded Zubaydah 83 times in one month, according to recently released documents, and placed him inside a coffin-like box for hours at a time. The Bush administration claimed it obtained actionable intelligence by torturing Zubaydah - an assertion contradicted by a CIA inspector general's report on the agency's torture and detention program.

CIA documents from a Combatant Status Review Tribunal in March 2007 revealed that Zubaydah's torturers eventually apologized to him and said they concluded he was not a top al-Qaeda lieutenant as the Bush administration and intelligence officials had claimed.

"They told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter," Zubaydah said during his tribunal hearing.

Mickum said volumes seven, eight and nine of Zubaydah's diaries would shed further light on his brutal treatment while "in CIA custody and recount his torture and damaging exculpatory admission made by [Zubaydah's] torturers and other CIA officials."

The diaries "are critically important to show what [Zubaydah] was doing during this time frame and contain exculpatory evidence."

Public court filings also state that Zubaydah "created other relevant writings and drawings, none of which have been returned to him." Although Mickum said he could not describe the drawings because they remain classified, but it appears likely that they may depict Zubaydah's torture.

"You'll just have to use your imagination as to what they might be," Mickum said. Zubaydah's "really good."

Jason Leopold is the author of the Los Angeles Times bestseller, "News Junkie," a memoir. Visit www.newsjunkiebook.com for a preview.

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