Abu Zubaydah Will Not Testify at Guantánamo Military Court Because the US Government Has “Stacked the Deck” Against Him

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Yesterday, for Close Guantánamo, the campaign I co-founded in January 2012 with the attorney Tom Wilner, I published an article, Abu Zubaydah Waives Immunity to Testify About His Torture in a Military Commission Trial at Guantánamo, explaining how Zubydah (aka Zayn al-Abidin Muhammad Husayn), a Saudi-born Palestinian, an alleged “high value detainee,” and the unfortunate first victim of the Bush administration’s post-9/11 torture program, was planning to appear as a witness today a pre-trial hearing at Guantánamo involving Ramzi bin al-Shibh, one of five men accused of involvement in the terrorist attacks of September 11, 2001.

Zubaydah was planning to discuss bin al-Shibh’s claims that “somebody is intentionally harassing him with noises and vibrations to disrupt his sleep,” as Carol Rosenberg described it for the Miami Herald, but as Mark Denbeaux, one of his lawyers, explained, by taking the stand his intention was for the truth to emerge, and for the world “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 also explained how “the Prosecution here in the Military Commissions is afraid to try him or even charge him with any crime,” adding, “The failure to charge him, after 15 years of torture and detention, speaks eloquently. To charge him would be to reveal the truth about the creation of America’s torture program.”

Denbeaux also noted that for Abu Zubaydah testifying would be a way “to celebrate his survival and to let the world hear his voice and to see him.”

However, late yesterday evening, after nearly three hours of meetings with Zubaydah, it was revealed that he would not be testifying after all. One of bin al-Shibh’s legal team, Jim Harrington, said, “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.”

In the Miami Herald, Carol Rosenberg explained that Zubaydah “made the decision in tandem with his lawyers after his attorney Mark Denbeaux arrived at this remote Navy base Thursday afternoon.” She stated, “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.”

This would be an unacceptable example of the US government trying to blacken Zubaydah’s name, despite having no case against him. As Rosenberg explained, although Zubaydah has admitted to having been a jihadist, “he has insisted, and US 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.”

Speaking of what Zubaydah was supposed to be discussing, Harrington said Zubaydah had “heard the noises but [had] not felt the vibration,” but he added that the issue at stake was that prosecutor Ed Ryan intended to undertake “a sweeping cross-examination” of Zubaydah, even though the judge, Army Col. James L. Pohl, had specifically cautioned Ryan against “turning the testimony into ‘a United States versus Zubaydah case.’”

Harrington’s co-counsel, reserve Army Maj. Alaina Wichner, said, “We’re very disappointed that he’s not going to testify. But we understand the circumstance. 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 added that her team “was considering whether to call other witnesses who might validate Bin al Shibh’s claim of the disruptions.”

While this is a disappointment for bin al-Shibh, it is also a major blow for Abu Zubaydah, and his efforts to hold the US government to account of this torture, and for their failure to charge him or release him. Mark Denbeaux issued a statement to the press, which I’m cross-posting below in its entirety, as it perfectly captures the disgraceful position taken by the government. As Denbeaux describes it, they have “stacked the deck” against Zubaydah, because “the court gave virtual free reign to the prosecution in search of proving bias — while extremely limiting my client’s ability to respond meaningfully about his experience.”

Statement to the Press
By Mark P. Denbeaux

On May 19, 2017 counsel for the detainee known as Abu Zubaydah chose to not allow their client to testify.

We could not allow our client to testify; the Government stacked the deck. We stipulated to bias against the US. but the court gave virtual free reign to the prosecution in search of proving bias — while extremely limiting my client’s ability to respond meaningfully about his experience.

Faced with overwhelming evidence that they tortured the wrong man, the Government wanted to cherrypick statements to paint a picture of prejudice under this cloak of “bias” without telling the whole story.

We invaded this man’s country, waterboarded him 83 times and tortured him for 4 years in secret prisons where he lost an eye. Of course he’s biased. He’s been imprisoned for 15 years without being charged and while he was being tortured, the CIA officially directed that he be silenced as long as he lived, forever and without fail. And if that wasn’t enough, they ordered his body cremated — assuring his silence even beyond the grave.

Tell me, what kind of people burn the bodies of their victims? Not innocent ones. And not people who want their victims to talk. These proceedings ultimately turned out to be just a continuation of that campaign of silence. We, perhaps foolishly, had hoped for better.

Before being captured, my client made a video extremely critical of the United States. My client fought against the Soviets and their agents as a mujahadeen, and then vowed to fight again against anyone who invaded his country, and to stand in solidarity with anyone who defended it. It was a response to battle. He essentially made a pledge of allegiance to his country and his beliefs. How is that a crime in America? Millions of American soldiers and schoolchildren take oaths and make a pledge of allegiance every day — does that mean they’re all guilty of the horrific torture that the CIA performed against my client? Expressing allegiance to one’s beliefs is not a crime in America. Maybe that’s why the prosecution in Guantánamo refuses to charge him.

The Government sought not truth, but stacked the deck in a way that made it impossible for my client to be presented fairly and accurately. For those reasons, we have respectfully abstained from taking part in this dog and pony show.

Mark P. Denbeaux
Lead Civilian Military Defense Counsel for Zayn Abu Zubaydah

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album ‘Love and War’ and EP ‘Fighting Injustice’ are available here to download or on CD via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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