Abu Zubaydah, the first person subjected to CIA waterboarding and other brutal interrogations after the Sept. 11 attacks, was a no-show Friday at the war court because he would not be allowed to describe his abuse in CIA custody, his lawyers said.
“The purpose of his testimony was to be able to testify about the torture,” said Navy Cmdr. Patrick Flor, the Pentagon-paid defense lawyer for the the man whose real name is Zayn al Abdeen Mohammed al Hussein. “It was apparent that was not going to happen. He wasn’t going to be allowed to do that. There was really nothing beneficial from his testifying today.”
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Defense lawyers for alleged 9/11 plot deputy Ramzi bin al Shibh have for a year sought Zubaydah’s testimony about life inside Guantánamo’s clandestine Camp 7 to support Bin al Shibh’s claim that somebody is intentionally harassing him with noises and vibrations to disrupt his sleep. The military denies any sleep-deprivation program is happening, but both the prison and captives consider Zubaydah a respected, well-behaved block leader.
The testimony, aborted on at least two previous occasions, was to be the first public comments by the Palestinian who has never been charged with a crime since his capture in March 2002 in Pakistan.
But Zubaydah’s lawyers said Friday that both their side and a Sept. 11 trial prosecutor wanted to make more of the appearance than what’s going on at Camp 7 — but only the prosecutor would be allowed to do it, through cross-examination designed to illustrate the captive’s anti-American bias.
Prosecutors got permission from the judge to show excerpts from a diary that he kept before his capture “while America was bombing him and others in Afghanistan,” said Zubaydah’s civilian attorney, Mark Denbeaux. The prosecution also planned to screen part of a video that showed Zubaydah praising the jihad and Sept. 11 attacks.
“It was going to be a one-sided proceeding outside of the initial questions regarding sights, smells and vibrations,” said Flor. The way it was shaping up, he added, the appearance “would still allow the government to bring forth the evidence they had without us being allowed to testify about the torture.”
Just last week Denbeaux released a letter announcing the Palestinian’s unilateral waiver of immunity.
“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,” Denbeaux wrote.
Thursday evening, after the Sept. 11 case judge ordered prosecutors to share their bias evidence with defense attorneys, Denbeaux arrived on base, met with Zubaydah and reversed course. The lawyers alerted the war court that the captive would not be testifying.
The Sept. 11 trial judge, Army Col. James L. Pohl, is hearing Bin al Shibh’s claim of disruptive prison conditions 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.
The judge has issued an order that says, if people at the secret prison were doing it, they should stop it.
Bin al Shibh’s attorney Jim Harrington told the judge Friday that the problems are “ongoing. Sometimes it’s better, sometimes worse,” he said, calling it a “bad situation right now.” Harrington asked Pohl if he’d consider ordering a way to monitor the activities. Pohl was non-committal but said that Harrington could craft a proposed order for him to consider.