Back in February, I had the opportunity to speak to Brent Mickum of Hollingsworth LLP, who is serving as part of the defense team for Gitmo detainee and suspected terrorist Zayn Al Abidin Muhammed Husayn, also known as Abu Zubaydah.
At the time, Mickum told the Huffington Post that the government had responded to his discovery motion with a filing that did not include "claims that Abu Zubaydah was a member of al Qaeda." He went on to qualify that, saying, "I am not saying that there are not extant claims in the government's case that require a defense."
That government motion is now declassified, and it basically bears this out.
The basic case the government is making is summed up on pages 35 and 36 of the filing:
Evidence indicating that Petitioner [Zubaydah] is not a member of al-Qaida or had ideological differences with al-Qaida is not inconsistent with the factual allegations made in the Government's factual return, because the Government has not contended in this proceeding that Petitioner was a member of al-Qaida or otherwise formally identified with al-Qaida. Instead, the Government's detention of Petitioner is based on Petitioner's actions as an affiliate of al-Qaida.
That angel is really dancing on the head of a pin, however -- throughout the filing, the government seriously limits the scope of Zubaydah's alleged involvement "as an affiliate of al-Qaida." Abu Zubaydah was sold as a high-value detainee -- a top lieutenant with intimate knowledge of training and operations, a linchpin figure in many other terrorism cases. But much of what has been presumed about Zubaydah's connections with al Qaeda operations and knowledge of specific plots just doesn't show up in the filing.
Zubaydah, if you recall, was initially considered a high-value detainee because he was suspected of having a hand in the September 11 attacks. Via Marcy Wheeler, here's the relevant portion of the Bybee Two Memo:
You have asked for this Office's views on whether certain proposed conduct would violate the prohibition against torture found at Section 2340A of title 18 of the United States Code. You have asked for this advice in the course of conducting imenogations of Abu Zubaydah. As we understand it, Zubaydah is one of the highest ranking members of the al Qaeda terrorist organization, with which the United States is currently engaged in an intemational armed conflict following the attacks on the World Trade Center and the Pentagon on September 11, 2001.
Well, based upon the government's declassified filing, this is something the government no longer contends:
For example, for purposes of this proceeding the Government has not contended that Petitioner had any personal involvement in planning or executing either the 1998 embassy bombings in Nairobi, Kenya and Dar-es-Salaam, Tanzania, or the attacks of September 11, 2001.
The Government has not contended in this proceeding that Petitioner had any direct role in or advance knowledge of the terrorist attacks on U.S. embassies in Nairobi, Kenya, and Dar-es-Salaam, Tanzania, in 1998, so to the extent that thsi request seeks evidence suggesting that "Petitioner did not know of any planned attacks in the U.S. Embassies," the request seeks evidence about contentions the Government has not made.
Zubaydah was also said to have connections to and valuable information concerning various terrorist training camps. Those contentions are thoroughly walked back, as well:
The Government has not contended in this proceeding that Petitioner selected or knew the identities of specific persons who were selected to leave Khalden for training at al-Qaida camps
To the extent that this request seeks information undermining a contention that Petitioner financed "particular terrorist operations asserted to have connections to the Khalden camp,"...the request seeks information about contentions the Government has not made in this proceeding and therefore falls outside the scope.
The Government has not contended in this proceeding that any of these camps had launched attacks against the United States or declared hostilities against the United States at that time.
That makes sense: the Khalden camp was closed in 2000 at the order of the Taliban, who refused to allow it "to fall under the organisational control of bin Laden or al-Qaida", reported the Guardian.
It was also widely contended that Zubaydah was a high-ranking member of the al Qaeda terrorist network, originally believed to be "the No. 3 man in the organization's hierarchy and a partner of Osama bin Laden." Again, here's the Bybee Memo:
According to this assessment, Zubaydah, though only 31, rose quickly from very low level mujahedin to third or fourth man in al Qaeda. He has served as Usama Bin Laden's senior lieutenant.
He also acted as al Qaeda's coordinator of external contacts and foreign communications. Additionally, he has acted as al Qaeda's Counterintelligence officer and has been trusted to find spies within the organization. Zubaydah has been involved in every major terrorist operation carried out by al Qaeda. He was a planner for the Millenium plot to attack U.S. and Israeli targets during the Millennium celebrations in Jordan. Two of the central figures in this plot who were arrested have identified Zubaydah as the supporter of their cell and the plot. He also served as a planner for the Paris Embassy plot in 2001. Moreover; he was one of the planners of the September 11 attacks. Prior to his capture, he was engaged in planning future terrorist attacks against U.S. interests.
With the exception of people like Marc Thiessen, no one's making that case anymore either. From the declassified filing:
Respondent does not contend that Petitioner was a "member" of al-Qaida in the sense of having sworn "bayat" (allegiance) or otherwise having satisfied any formal criteria that either Petitioner or al-Qaida may have considered necessary for inclusion in al-Qaida. Nor is the Government detaining Petitioner based on any allegation that Petitioner views himself as part of al-Qaida as a matter of subjective personal conscience, ideology, or worldview. Respondent's detention of Petitioner is based on conduct and actions that establish Petitioner was "part of" hostile forces and "substantially supported" those forces.
The Government does not rely on any contention that Petitioner did this work as an "al-Qaida deputy" or because he was subject to al-Qaida command.
Nevertheless, the government continues to contend that Zubaydah was brewing up terrorist operations of his own, and maintained an organization with the intent of carrying these out:
The Government also has not contended in this proceeding that at the time of his capture, Petitioner had knowledge of any specific impending terrorist operations other than his own thwarted plans.
The Government has not contended in this proceeding that, at the time Petitioner was apprehended, Petitioner had knowledge of specific terrorist operations being planned or executed by persons or groups other than Petitioner and his group.
As for the extant charges against Zubaydah, these apparently involve unspecified "conduct" and "actions" in support of "hostile forces." Per Jason Leopold:
The government has a new set of charges it has leveled against Zubaydah: he "supported enemy forces and participated in hostilities" and "facilitat[ed] the retreat and escape of enemy forces" after the US invaded Afghanistan in November 2001. Zubaydah's attorneys claim "the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included 'women, children, and/or other non-combatants' and they said in court documents that the government has evidence to support those assertions.
These allegations -- the specifics of which are still classified -- seem to account for the charges that Zubaydah must still defend himself against. Nevertheless, there is real significance to all the walking back the government is doing on the premature presumptions that originally swirled around Zubaydah. This is seen most keenly in the unraveling of other cases and charges against other detainees. A year ago, Mickum made mention of this in an article he submitted to the Guardian -- which was reviewed and vetted by the CIA prior to publication:
More importantly, the government is conducting a surreptitious but systematic purging of any reference to my client from the charge sheets and factual returns of other prisoners whose cases were being prosecuted. Abu Zubaydah has been linked to nearly 50 prisoners and former prisoners through media accounts and official Guantanamo Bay documents. Of these, approximately two dozen have either had their charges dropped or have been released from custody, including British resident Binyam Mohamed, who was recently released to British authorities without any charges. Before charges were dropped against Binyam Mohamed, Sufyian Barhoumi, Ghassan al-Sharbi and Jabran Sard al-Qahtani, each had their charge sheets redrafted to remove every reference to Abu Zubaydah.
Internationally, several individuals alleged to have known Abu Zubaydah have had their charges dropped, been released, or received other relief from their handlers. Abousfian Abdelrazik was alleged by the State Department to be closely associated with Abu Zubaydah. In 2008, Canada asked the United Nations to remove Abousfian Abdelrazik from its terrorism watch-list. Another prisoner, Mohamed Harkat, was supposedly even more closely related to Abu Zubaydah. Mohamed Harkat's attorney sought access to Abu Zubaydah for testimony relating to Harkat's trial, but the US refused to respond to his requests. In Harkat's Canadian trial, after Michael Hayden admitted that Abu Zubaydah had been waterboarded, Canadian officials deleted all references to Abu Zubaydah's alleged statements in its public dossier.
Mohamed Harkat was later released by Canadian authorities. These are a sampling of what I believe are many other cases in which the administration has airbrushed Abu Zubaydah out of history - because ultimately he could not have been privy to the information the government alleged he had provided.
Mickum noted that Zubaydah's attorneys had long been aware that the government was amending court filings to remove references to Zubaydah: "What is so curious is that we are aware that, in a limited number of cases involving Guantanamo detainees, the only evidence contained in the factual return that argues in favor of detention is evidence linking the detainee to Zubaydah in a very general way. For example, in one case, the government has alleged that a detainee is properly jailed based on the fact that he was seized at a guest house on the same night that Zubaydah was seized. The only problem is it was a different guest house than the one in which our client was allegedly seized. I guess the government's contention is that, because Zubaydah was allegedly such a high-level member of al Qaeda, anyone picked up anywhere on the same night for any reason obviously has some association with him. The point is: the government has been unable to amend that case by removing the reference to our client and now admits that he was never a member of al Qaeda. I'm not sure how the government intends to do in that case. Change the facts, I suspect."
Knowing that so many of the sensational contentions associated with Abu Zubaydah have fallen by the wayside makes it interesting to see how his case ultimately will play out. Nevertheless, the dubious way in which Zubaydah was originally sold to the public continues to permeate the media. Just one week ago, the AP posted an article in which they referred to Zubaydah as an "al-Qaida lieutenant" -- a charge that the government hasn't alleged in months.
Mickum told me: "This has been a huge problem for us all along. We were completely hamstrung by the government's absolute abuse of the classification system and unable to discuss aspects of his case. And the judicial system has been utterly indifferent and unwilling to police the issue. Now we finally are able to show the public how the story line has changed. And really, no one should be particularly surprised, because it happens all the time. You finally are able to demonstrate that the government is incapable of proving certain facts and what happens? The government simply changes the facts. I don't want to mislead you by saying there is no case against my client, but it is vastly different from the story that the Bush Administration has trumpeted repeatedly to justify the torture of an individual who was never a member of al Qaeda and was never privy to any information about al Qaeda operations. In the years to come, it will be interesting to see just what the information our client provided was that the Bush Administration believed was so compelling. Frankly, it was all about justifying the fact that he was tortured and the fact that he was absolutely tortured before the August 2, 2002 memo that allegedly authorized his torture."
By the government's own admission, Zubaydah was waterboarded 83 times while in captivity, and has been passed off as an important asset in the War on Terror by Bush administration apologists, who've long contended that if only we knew what they knew -- the things that have been kept behind a firewall of classification -- we'd see the virtue of their actions. But as we see with this declassified filing, the charges are changing, the hype is diminishing and the fact that we once considered Zubaydah a detainee so valuable that we had to torture him is being glossed over.
Zubaydah, as it turns out, isn't so much a central figure in the world of al-Qaida, but rather, a central figure in the PR campaign to sell the War on Terror.
RELATED: Jason Leopold also has a fantastic report on Zubaydah's diaries, which were only recently turned over to Zubaydah's defense team. Read it here.