In a last-minute upset, lawyers on Thursday postponed what was to be the world’s first glimpse of a prized war-on-terror prisoner known as Abu Zubaydah, who the CIA once concluded should be kept incommunicado the rest of his life.
Abu Zubaydah, 45, whose real name is Zayn al Abideen al Hussein, made it all the way to the war court door but never stepped inside to testify about conditions in Guantánamo’s clandestine Camp 7. His Navy lawyer announced in court that he would object to any questions that could incriminate his client, prompting lawyers to postpone the testimony until July at the earliest.
The upset came hours after another former CIA black-site captive appeared at a hearing in the Sept. 11 case on a very narrow issue: to vouch for 9/11 defendant Ramzi bin al Shibh’s account of intentional noises and vibrations at Camp 7. The government denies it happened, but another former CIA prisoner, Hassan Guleed of Somalia, said he hears and feels it also — and smells something strange, too.
Guleed, 43, said it began in 2009, three years after he got there, but he gave up complaining years ago. It happens “every day, every minute, every hour, every year,” he testified without benefit of an attorney. On cross-examination, Sept. 11 case prosecutor Ed Ryan accused Guleed of being an enemy of the United States, which he denied.
Abu Zubaydah’s testimony was derailed in part because his lawyer Navy Cmdr. Patrick Flor told the judge, Army Col. James L. Pohl, that he would object to potentially incriminating questions from the prosecution. Flor is paid by the Pentagon to defend the Palestinian if he is ever charged with a crime.
After court, Flor said his client was disappointed but it was too risky. Guantánamo captives aren’t typically shackled at the war court and Abu Zubaydah was to take his first steps without ankle chains in 14 years. “I would like my client to see the light of day in front of a microphone,” he said. “He’ll no longer be forgotten.”
Ryan, the prosecutor, said he would certainly question the captive to demonstrate his bias, essentially that he is an enemy of the United States. Bin al Shibh’s attorney, Jim Harrington, proposed that, for those questions, Judge Pohl give the Palestinian immunity — something the war court judge said he was powerless to do.
Judge Pohl offered an example: What if Ryan asks “Mr. Zubaydah,” as the judge called him, if he belongs to al-Qaida. “He might answer that,” Harrington replied, “because the answer will be no.”
CIA agents captured the man known as Abu Zubaydah nearly dead in a gun battle in March 2002 in Pakistan. They saved him, then subjected him to some of the most brutal known interrogations of the post-Sept. 11 era — waterboarding, forced nudity, confinement to a coffin-sized box. The so-called Senate Torture Report found CIA deceptiveness, self-aggrandizement and that the spy agency concluded soon after Abu Zubaydah’s capture that he “should remain incommunicado for the remainder of his life.”
The CIA considered him a senior al-Qaida member, but the Senate report said that was unfounded. The prisoner told U.S. military officers soon after he got to Guantánamo in 2006 that he was a rival to Osama bin Laden and had never joined his global jihad.
Earlier, Guleed, a Somali man who disappeared into the CIA’s dark sites in 2004 allegedly for targeting U.S. forces in Djibouti, denied that was true.
Attired in a traditional khamis and wearing a black-and-white keffiyah, Guleed looked fitter, leaner and better-groomed than in the photo on his leaked 2008 Guantánamo prison profile. Guleed, who faces no war-crimes charges, said he never met accused Sept. 11 deputy Ramzi bin al Shibh until they were put on the same Camp 7 cellblock.
“We have mental torture in Camp 7,” Guleed testified in English. “In Black Site, we had physical…” he said, until Ryan and the judge cut him off.
Bin al Shibh’s lawyers want the judge to find the prison staff in contempt of a Nov. 2, 2015, order to stop the disruptions, if they are happening. Bin al Shibh testified on the problem February, and his attorneys called Guleed and the Palestinian who serve as a cellblock leader to support the story.
Prosecutors argue that he may be imagining the episodes or making them up as a weapon of their continuing jihad at Camp 7.
A security officer or the judge cut the audio twice during Guleed’s testimony, which emerged from the court on a 40-second delay. It happened once on a question by the defense, the other on a question from the prosecution. Pohl, unlike in past episodes, did not elaborate on what happened when the court feed was restored.
In a bid to demonstrate bias, prosecutor Ryan questioned Guleed about his biography, as alleged by the CIA — whether he trained at an al-Qaida camp in Afghanistan, tried at one point to get into the United States, planned to bomb U.S. troops in Djibouti. Guleed denied all of these.
“You’re lying,” Ryan told him at one point. He also asked Guleed for his “kunya,” describing it as the captive’s al-Qaida codename. Guleed resisted at first, then said he goes by “Jafar,” a nickname.
Neither Guleed nor the Palestinian are facing war-crimes charges. Both await hearings, but have no date to go before the Obama administration’s Law of War parole-style board known as a Periodic Review Board.
Harrington said after court that he would file briefs with the court asserting Abu Zubaydah’s constitutional right to defense witness “use immunity,” which he argued is covered by the Military Commissions Act too. Depending on the timing of the filing, the issue could be argued in July in time for the Palestinian to testify too, he said.