by Raymond Bonner
Source: Pro Publica
Date: October 7, 2021
Thirteen years ago, suspected terrorist Abu Zubaydah filed a petition challenging the legality of his detention. In a Supreme Court hearing about state secrets, justices asked why federal courts have declined to rule on the case.
The Supreme Court on Wednesday waded into the case of Abu Zubaydah, a terrorism suspect whose request that the U.S. release him from Guantanamo Bay or charge him with a crime has languished without action for more than 13 years.
The court was hearing a case on another issue: Whether the U.S. government could cite “state secrets” to prevent Zubaydah’s lawyers from taking depositions from the CIA contractors who subjected Zubaydah to waterboarding and other methods of torture.
But several justices appeared baffled by a question ProPublica raised more than six years ago: Why have the federal courts declined to rule on the petition Zubaydah filed back in July 2008 challenging the legality of his detention?
The Supreme Court ruled in June of 2008 that Guantanamo detainees had a right to file what is known as a habeas corpus petition — the phrase is Latin for “you have the body.” Habeas actions require the government to go before a judge and either release the person it is holding or bring charges. Zubaydah’s lawyers have been trying without success to elicit a ruling ever since.
In their questions at Wednesday's oral arguments, the justices appeared unaware that Zubaydah’s plea for release has yet to be heard.
“Have you filed a habeas or something, get him out?” Chief Justice John Roberts wanted to know.
Yes, 14 years ago, replied Daniel F. Klein, Zubaydah’s lawyer.
That answer seemed to confound several of the justices.
“They don’t decide?” Justice Stephen Breyer asked. “You just let him sit there?”
“I don’t understand why he is still there after 14 years,” Breyer said later to the government counsel, Brian H. Fletcher.
Zubaydah’s lawyers filed a habeas action in 2008 — a month after the Supreme Court ruling that granted Guantanamo detainees that right — in federal court in Washington, D.C., and it was assigned to Judge Richard W. Roberts. Roberts made no substantive rulings in the years that followed and had failed to rule on any of the 16 motions by Zubaydah’s lawyers when he left the bench in 2016. The case was then assigned to Judge Emmet Sullivan, who has yet to rule on the petition.
The right of a detained person to file a habeas petition seeking release dates back to the Magna Carta, and the Supreme Court has said in other cases that it is meant to be a “swift and imperative remedy.”
Frustrated by the inaction in the case, Zubaydah’s lawyers filed what is known as a writ of mandamus with the federal appeals court in 2019 asking that the higher court order Sullivan to rule. It was a highly unusual move, as lawyers do not like to antagonize judges hearing their cases.
The appeals court denied the motion, but there has since been some movement in the case. Sullivan has issued a discovery order, requiring the CIA to turn over some documents to Zubaydah’s lawyers. Among them were Zubaydah’s medical records, which his lawyers have been seeking since 2009.
The documents that the CIA turned over were heavily redacted, and the agency has said that it will take as long as six years to complete its review of what can be made public.
Zubaydah, now 50 years old, has been in American custody since 2002, first held, and tortured, by the CIA interrogators at so-called black sites in Thailand and Poland, before being sent to Guantanamo, where he has been held since 2003. Those facts are not in dispute and have been described in a Senate report. Poland’s former president has acknowledged his country’s role in holding Zubaydah.
The case before the justices on Wednesday arose as a result of an ongoing Polish investigation into whether the country’s officials were complicit in the mistreatment of Zubaydah.
Zubaydah’s lawyers said they were prepared to assist that inquiry by taking depositions from James Mitchell and Bruce Jessen, the two psychologists who questioned Zubaydah while he was at the black site in Poland. Both were CIA contractors.
The Trump administration moved to bar any questioning of Mitchell and Jessen, saying official confirmation of where he was held would reveal a state secret.
Strikingly, justices frequently used the word “torture” to describe what happened to Zubaydah in Poland and at a black site in Thailand, rather than the euphemism preferred at the time by the Bush administration, “enhanced interrogation techniques.”
“The fact that he was tortured by these [CIA] contractors in Poland, that’s not a state secret?” Justice Amy Coney Barrett asked Zubaydah’s lawyer at one point. She used the word “torture” several times in her questioning of both sides.
Justice Neil Gorsuch asked whether the government could avoid confirming any secrets if Zubaydah himself testified about how he was treated. This would sidestep the official confirmation that would arise from allowing the CIA contractors to describe what they had done.
Fletcher repeatedly refused to say whether the Biden administration would permit Zubaydah to give sworn testimony for use in the Polish case, prompting a pointed question from Gorsuch.
“I’d just really appreciate a straight answer to this. Will the government make Petitioner [Zubaydah] available to testify as to his treatment during these dates [when he was held in Poland]?” Gorsuch asked the government.
Fletcher said he couldn’t answer that.
Gorsuch wasn’t happy. “This case has been litigated for years and all the way up to the United States Supreme Court, and you haven’t considered whether that’s an off-ramp that — that the government could provide that would obviate the need for any of this?”
After a further dodge by the government lawyer, Gorsuch said again, “I personally would like a straight answer to that question.”
Justice Sonia Sotomayor joined, “We want a clear answer, are you going to permit him to testify as to what happened to him those dates without invoking a state secret or other privilege? Yes, no. That’s all we’re looking for.”
Raymond Bonner is a regular contributor to ProPublica. He is producing a documentary with Alex Gibney about Abu Zubaydah and the CIA’s interrogation program called “The Forever Prisoner,” which is scheduled for release in December.
by Jason Leopold
Date: March 30, 2010
The Justice Department has quietly recanted nearly every major claim the Bush administration had made about "high-value" detainee Abu Zubaydah, a Guantanamo prisoner who at one time was said to have planned the 9/11 attacks and was the No. 2 and 3 person in al-Qaeda.
Additionally, Justice has backed away from claims intelligence officials working in the Clinton administration had also leveled against Zubaydah, specifically, that he was directly involved in the planning of the 1998 embassy bombings in East Africa.
Zubaydah's name is redacted throughout a 109-page court document the government filed in US District Court in Washington, DC in response to 213 discovery requests Zubaydah's attorneys made in connection with his habeas corpus case, which sought evidence to support, among other claims, the government's position that Zubaydah was a top al-Qaeda official and close confidant of Osama Bin Laden.
But he is identified on the first page of the filing by his real name, Zayn Al Abidin Muhammad Husayn. He was the first detainee captured after 9/11 who was subjected to nearly a dozen brutal torture techniques, which included waterboarding, and was the catalyst, the public has been told, behind the Bush administration's "enhanced interrogation" program. Former Vice President Dick Cheney has publicly admitted that he personally approved of Zubaydah's waterboarding.
Illustration courtesy of Mindfully.org
His torture was videotaped and the tapes later destroyed. The destruction of 90 videotapes of his interrogations is the focus of a high-level criminal investigation being conducted by John Durham, a federal prosecutor appointed special counsel in 2008 by then-Attorney General Michael Mukasey.
In recent months, former Bush speechwriter Marc Thiessen has been on a public relations campaign promoting his book, "Courting Disaster," in which he defended the torture of Zubaydah, claiming that he reviewed classified intelligence that revealed Zubaydah's torture produced actionable intelligence that thwarted imminent plots against the United States.
But court documents unclassified last week debunk Thiessen's assertions as well as those made by, among others, George W. Bush, who said Zubaydah was one of al-Qaeda's "top operatives plotting and planning death and destruction on the United States."
For the first time, the government now officially admits that Zubaydah did not have "any direct role in or advance knowledge of the terrorist attacks of September 11, 2001," and was neither a "member" of al-Qaeda nor "formally" identified with the terrorist organization. The government now claims Zubaydah is being detained based on his "actions" as an "affiliate" of al-Qaeda.
By Ivan Eland, Consortium News Source: AlterNet Website URL: [link] Date: July 24, 2008
After having begun a series of investigative stories criticizing the Transportation Security Administration (TSA) in May 2008, CNN reporter Drew Griffin reports being placed with more than a million other names on TSA's swollen terrorism watch list.
Although TSA insists Griffin 's name is not on the list and pooh-poohs any possibility of retaliation for Griffin 's negative reporting, the reporter has been hassled by various airlines on 11 flights since May. The airlines insist that Griffin 's name is on the list.
Congress has asked TSA to look into the tribulations of this prominent passenger.
In a recent op-ed in the Washington Post, probably responding to the controversy over Griffin, Leonard Boyle, the director of the Terrorist Screening Center, defended the watch list, claiming that because terrorists have multiple aliases, the names on the list boiled down to only about 400,000 actual people.
By Carol Rosenberg
Source: The Miami Herald
Date: February 27, 2008
After six years, al Qaeda suspect meets lawyers
Alleged arch-terrorist Abu Zubaydah, whom the CIA waterboarded in secret overseas interrogations, has agreed to let two American attorneys challenge his detention.
Chicago law professor Joseph Margulies and Washington, D.C. lawyer Brent Mickum said Tuesday that they secured the authority in 12 hours of meetings Friday and Monday at the U.S. Navy base at Guantánamo Bay, Cuba.
It was the first time a defense attorney has been allowed to see the captive, who once ran a military training camp in Afghanistan, in nearly six years of U.S. detention.
He was captured, severely wounded, in a March 2002 firefight at an alleged al Qaeda safe house in Faisalabad, Pakistan.
He disappeared into years of secret detention, out of Red Cross reach, until President Bush announced his transfer to Guantánamo in September 2006.
By Andrew Sullivan
Date: December 18, 2007
Curiouser and curiouser. I've learned to be a little suspicious when former CIA agents suddenly pop up on television describing torture sessions that have been wiped from the official record. Especially when those agents turn out not to have been actually present for the interrogation, give the opposition a morsel of truth - yep, this was torture - and yet also spin the story in ways amenable to torture advocates. You know how Fox News played the Kiriakou story.
Today, the Washington Post offers a must-read on conflicting versions of what was done to Zubaydah. The version relayed by FBI agents, and picked up by Ron Suskind, differs from the president's account. Surprise! According to retired FBI agent Daniel Coleman, who led an examination of documents after Abu Zubaida's capture in early 2002 and worked on the case, Zubaydah gave the only real information he had before he was tortured. But the CIA believed he had more info and the president authorized his extensive, months-long, Gestapo-playbook torture. This, moreover, was not some one-off 35 second waterboarding session:
Original author: Adam Liptak Source: The New York Times URL: [link] Date: June 11, 2007
In a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism, a federal appeals court ordered the Pentagon to release a man being held as an enemy combatant.
“To sanction such presidential authority to order the military to seize and indefinitely detain civilians, Judge Diana Gribbon Motz wrote, “even if the President calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”
“We refuse to recognize a claim to power,” Judge Motz added, “that would so alter the constitutional foundations of our Republic.”
The ruling was handed down by a divided three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., in the case of Ali al-Marri, a citizen of Qatar and the only person on the American mainland known to be held as an enemy combatant.
Original author: Colin Freeze
Source: The Globe and Mail
Date: April 17, 2007
'High-value' detainee rejects al-Qaeda doctrine
Terror suspect tells Guantanamo hearing he 'disagreed' with targeting civilians
To the United States, he remains al-Qaeda's logistics mastermind: a terrorist trainer and Osama bin Laden intimate, alleged to have been behind an attempt to blow up Los Angeles International Airport before moving on to help bankroll other attacks.
Yet Abu Zubaydah describes himself differently. At a Guantanamo Bay hearing last month, the "high-value" detainee described himself as a hapless and tortured non-fighter, a travel agent, essentially, who had helped mujahedeen of all stripes enter and leave Afghanistan since the mid-1990s.
In his first remarks ever to be made public, the 36-year-old Palestinian admitted he used his base in Peshawar, Pakistan, to route scores of Arab militants -- including some from Canada -- into the Khalden, Afghanistan, training camp where they learned to fire weapons, build explosives and even make poisons.
Original author: Colonel Ann Wright, Retired Source: t r u t h o u t URL: [link] Date: December 23, 2006
On January 11, 2002, the first detainees from Afghanistan arrived at the prison in the US Naval Base, Guantanamo, Cuba. In the succeeding five years, Guantanamo has symbolized to the world the Bush administration's abandonment of international and domestic law, and the development of a policy of inhumane treatment and use of torture. These claims have been linked to military and CIA operations in Afghanistan, Iraq and in an unknown number of secret prisons.
More than 775 detainees have been held in Guantanamo since January 11, 2002. After five years, no Guantanamo detainee has been convicted of a criminal offense. According to an American Forces Information Service News article dated October 17, 2006, "Bush Says Military Commissions Act Will Bring Justice," the majority of the detainees held in Guantanamo will not face military commissions. "Only detainees who will be charged with law-of-war violations and other grave offenses - about 75 detainees, officials estimated - will be subject to the commissions."
So what has happened to the other 700 detainees during these five years - those who will not be prosecuted by military commissions?
Original author: Jeremy Brecher & Brendan Smith Source: The Nation URL: [link] Date: November 20, 2006
On November 14 a group of lawyers and other experts will come before the German federal prosecutor and ask him to open a criminal investigation targeting Donald Rumsfeld, Alberto Gonzales and other key Bush Administration figures for war crimes. The recent passage of the Military Commissions Act provides a central argument for the legal action, under the doctrine of universal jurisdiction: It demonstrates the intent of the Bush Administration to immunize itself legally from prosecution in the United States, even for the most serious crimes.
The Rumsfeld action was announced at a conference in New York City in late October titled "Is Universal Jurisdiction an Effective Tool?" The doctrine allows domestic courts to prosecute international crimes regardless of where the crime was committed, the nationality of the perpetrator or the nationality of the victim. It is reserved for only the most heinous offenses: genocide, war crimes and crimes against humanity, including torture. A number of countries around the world have enacted universal jurisdiction statutes; even the United States allows it for certain terrorist offenses and torture.
Original author: David Johnston Source: The New York Times URL: [link] (subscribers only) Date: September 9, 2006
WASHINGTON, Sept. 9 - Abu Zubaydah, the first Osama bin Laden henchman captured by the United States after the terrorist attacks of Sept. 11, 2001, was bloodied and feverish when a C.I.A. security team delivered him to a secret safe house in Thailand for interrogation in the early spring of 2002. Bullet fragments had ripped through his abdomen and groin during a firefight in Pakistan several days earlier when he had been captured. The events that unfolded at the safe house over the next few weeks proved to be fateful for the Bush administration. Within days, Mr. Zubaydah was being subjected to coercive interrogation techniques - he was stripped, held in an icy room and jarred by earsplittingly loud music - the genesis of practices later adopted by some within the military, and widely used by the Central Intelligence Agency in handling prominent terrorism suspects at secret overseas prisons.
Click on the photo of Mohamed to see all items related to him. JUNE 2017: Mohamed Harkat once again faces deportation to his native Algeria after the Supreme Court of Canada declared the federal government’s security certificate regime constitutional.
This fight is not over. The Justice for Mohamed Harkat Committee will re-double its efforts to see that justice is done for Mohamed Harkat and that the odious security certificate system of injustice is abolished once and for all.