The Guantánamo detainee known as Abu Zubaydah, who was subjected to prolonged torture at CIA black sites, is expected to give testimony for the first time on Wednesday at a pre-trial hearing convened under the military commission system.
The hearing is the precursor to a long-delayed military trial at which five Guantánamo prisoners on war crimes charges related to the 9/11 attacks face the death penalty.
Zubaydah, whose full name is Zayn al-Abidin Muhammad Husayn, is scheduled to give testimony in an ongoing dispute over conditions at Camp 7, the highest-security facility at Guantánamo where the so-called “high-value detainees” including those accused of organizing the 9/11 attacks are held. If he does appear, it will be only the second time that he has been seen in public since his arrest in Pakistan 15 years ago.
He came close to testifying last summer, but his appearance was postponed at the last minute.
Zubaydah, 46, was then unveiled to the world last August at a periodic review board – the Guantánamo equivalent of a parole hearing. He appeared with an eye patch after he lost his left eye in disputed circumstances under CIA captivity in Thailand.
What is not disputed is that the Palestinian was subjected to prolonged torture, including 83 bouts of waterboarding in one month, being kept naked and being placed in a box the size of a coffin. The US government claims he played a key role through the 1990s in connecting al-Qaida operatives around the world, though the CIA’s initial assumption that he had been the third most senior al-Qaida leader turned out to be a gross exaggeration.
Zubaydah has been called to testify at the military commission war court in Guantánamo over the treatment of fellow captive Ramzi bin al-Shibh, one of five detainees charged with committing the 9/11 attacks. Al-Shibh has long complained that he is subjected to psychological torture at Camp 7, including the beaming of sounds and vibrations into his cell to disturb his sleep.
Evidence to support Al-Shibh’s contention, which has been denied by the military, is contained in Enhanced Interrogation, the book written by James Mitchell, the retired air force psychologist who helped develop the CIA’s interrogation program. The book refers to sound and vibrations having been inflicted on the detainee.
Camp 7 was purpose built to hold the alleged 9/11 plotters, including Bin al-Shibh and the alleged mastermind of the New York and Washington attacks, Khaled Sheikh Mohammed. Even the camp’s existence was initially kept secret.
Wednesday’s pre-trial hearing is one of a series of procedural interactions staged by the military commissions at the base in Guantánamo, where 41 detainees are still being held. Prosecutors have been pressing for a June 2018 start date for the war crimes trial of the 9/11 five, though the possibility of that deadline being met is a receding dot on the horizon.
One close observer of the military commission process, which was set up in the wake of 9/11 as an alternative to criminal trials in federal courts on mainland US, said that the process was “stuck in irons” and that the prospect of a trial starting was further away now than it has ever been.
To some extent it suits both sides in the legal argument to delay the start of trial. The defendants have all been charged with war crimes that carry the death penalty, so every day the trial is put off is potentially another day execution is avoided.
On the government side, prosecutors are faced with the dilemma of presenting evidence to the war court that was obtained from the defendants under torture. Prosecutors are also wary of having to disclose publicly what the CIA did at its black sites where captives in the post-9/11 conflicts were taken and subjected to so-called “enhanced interrogation”.
Defence lawyers acting for the high-value detainees will also continue legal argument on Wednesday over the longstanding issue of when hostilities between the US and al-Qaida began. The question sounds academic, but is of enormous judicial significance as it goes to the heart of the issue of the legality under US and international law of the military commissions.
Government prosecutors date the start of the conflict to August 1996, when Osama bin-Laden issued a declaration of war against the “Americans Occupying the Land of the Two Holy Places”. Defense lawyers say the war only began with the start on 7 October 2001 of Operation Enduring Freedom, in which the US attacked al-Qaida and the Taliban in Afghanistan in response to 9/11.
The factual dispute comes with high stakes attached. If defense lawyers can satisfy the war court (a very tall order) that there was no military conflict between the US and al-Qaida on the morning of 11 September 2011 when the New York and Washington attacks were launched, then no war crimes could have been committed.
“The question of whether hostilities existed on 11 September 2001 is central to the entire question of the use of military commissions,” said James Connell, the attorney appointed by the Pentagon to represent Ammar al-Baluchi, Khalid Sheikh Mohammed’s nephew who is also detained at Guantánamo.