Abu Zubaydah, the first person subjected to CIA waterboarding and other harsh interrogation techniques after the Sept. 11 attacks, will not be testifying Friday at the war court, attorneys said late Thursday.
“On the advice of his attorneys he has made a decision that he will not testify because the risks to him in the future from cross examination prohibit him from being able to give important testimony on the issue before the court,” defense attorney Jim Harrington said after nearly three hours of meetings with the Palestinian and his attorneys Thursday night.
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Zubaydah, whose real name is Zayn al Abdeen Mohammed al Hussein, made the decision in tandem with his lawyers after his attorney Mark Denbeaux arrived at this remote Navy base Thursday afternoon. At issue was material Sept. 11 trial prosecutors planned to use in court to demonstrate Zubaydah’s bias against the United States, including a video showing the Palestinian before his capture in Pakistan in March 2002 praising the Sept. 11 attacks.
Denbeaux, who had no immediate comment, had earlier this month written a lengthy letter describing the once-prized CIA captive’s eagerness to testify. He has never been heard from in public since his capture and brutal interrogation, and has never been charged with a crime.
Zubaydah’s has admitted to being jihadist. But he has insisted, and U.S. intelligence analysts have concluded, that he was not a sworn member of al-Qaida and there is no evidence he knew about the 9/11 attacks in advance.
The Palestinian was being called to testify in support of one of the alleged 9/11 plotters who argues that someone at this base’s most clandestine prison, Camp 7, had been intentionally making noise and causing his cell to vibrate in a campaign of sleep deprivation.
Zubaydah’s “heard the noises but not felt the vibration,” said Harrington, the death penalty defender for alleged 9/11 plotter Ramzi bin al Shibh, 45, expressing disappointment. Abu Zubaydah is described in prison profiles as a well-behaved captive and tier leader who represents former CIA captives’ issues to prison leaders and guards, and that’s what Bin al Shibh’s lawyers wanted to ask him about.
Harrington said the issue was that, although the case judge had cautioned prosecutor Ed Ryan against turning the testimony into “a United States versus Zubaydah case,” a Sept. 11 case prosecutor would be carrying out a sweeping cross-examination of the “forever prisoner.”
“We’re very disappointed that he’s not going to testify. But we understand the circumstance,” said Harrington’s co-counsel, reserve Army Maj. Alaina Wichner. “The only people who can obviously testify for Ramzi are people who are in the camps with us, and this was an important witness for us.”
She said her team was considering whether to call other witnesses who might validate Bin al Shibh’s claim of the disruptions.
Bin al Shibh’s lawyers have for a year sought Zubaydah’s testimony about life inside Guantánamo’s most secret prison in their bid to demonstrate Bin al Shibh’s claim that somebody is intentionally harassing him with noises and vibrations to disrupt his sleep. The Sept. 11 trial judge, Army Col. James L. Pohl, is hearing the Yemeni’s claim in pretrial proceedings because Bin al Shibh argues that the circumstances prevent him from helping craft his legal defense in the case against five men accused of plotting the Sept. 11, 2011 attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon.
This is not the first time Zubaydah has been expected to appear but backed out at the last moment on his attorneys’ advice. Last year, prison guards brought him to the court compound for what was to be public testimony before his military lawyer, Navy Cmdr. Patrick Flor, objected. He sought time to seek testimonial immunity — meaning anything he said in court could not be used against him in a future prosecution. The effort failed. Both the Pentagon overseer of the war court and the judge have declined the request.
Last week, Denbeaux said Zubaydah wanted to testify anyway “to celebrate his survival and to let the world hear his voice and to see him.”