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No mini-trial for Abu Zubaydah when he testifies at 9/11 pretrial hearing

An unstaffed tower in an abandoned portion of Guantanamo's Detention Center Zone as seen on February 12, 2017.

EMILY MICHOT/MIAMI HERALD/TNS

By CAROL ROSENBERG | The Miami Herald (Tribune News Service) | Published: May 16, 2017

GUANTANAMO BAY NAVAL BASE, Cuba — A military judge cautioned a 9/11 prosecutor on Tuesday against turning testimony about conditions at this base’s most clandestine prison into a “mini-trial” on Abu Zubaydah.

Zayn al Abdeen Mohammed al Hussein, who is known as Zubaydah, was the first interrogation test subject of the CIA black sites, and has never been charged with a crime since his capture in Pakistan in March 2002. He was waterboarded, kept nude, confined to a coffin-style box and otherwise abused in an effort to get him to spill more secrets than he had given the FBI in standard interrogation techniques.

Yet, he has never been charged with a crime, in part because there’s no suggestion he was linked to the Sept. 11, 2001, terror attacks that killed 2,976 people in New York, Pennsylvania and the Pentagon.

Instead, the Pentagon now holds him as a quasi-POW in the war on terror as probably one of Osama bin Laden’s “most trusted facilitators,” a jihadist who helped move fighters to and from Afghanistan.

Friday, he is expected to see the inside of an actual court for the first time, as a witness for alleged 9/11 deputy Ramzi bin al Shibh, 45, who has complained for years that somebody is intentionally causing noises and vibrations to deprive him of sleep in his Camp 7 cell. Camp 7 is where the military houses former CIA prisoners, and the military has described Zubaydah as a well-behaved block leader who mediates disputes between staff and captives.

Army Col. James L. Pohl, the Sept. 11 trial judge, issued the warning as lawyers jousted over what case prosecutor Ed Ryan can use at the hearing to try to discredit Zubaydah’s testimony.

“Mr. Zubaydah is not on a trial. He’s not a defendant,” Pohl told Ryan. “I don’t want to turn this into a United States vs. Zubaydah case.”

His lawyer, however, said in a letter disclosing Zubaydah’s voluntary waiver of immunity, that he hopes the testimony will offer a very different sort of mini-trial — one that would be expansive enough to cover Zubaydah’s time in the CIA’s secret prison network, before he got to Guantanamo in September 2006.

In essence, attorney Mark Denbeaux wrote that he hopes the testimony will turn it into Zubaydah vs. the United States.

“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.”

Prosecutor Ryan said he plans to show a six-minute video and portions of the Palestinian’s diaries to illustrate his enmity toward the United States.

The judge said the prosecutor could ask certain questions to demonstrate the captive’s bias against the United States, but there are limits. Bin al Shibh attorney Jim Harrington offered that sort of cross-examination might not be necessary because Harrington intended to ask Zubaydah about his bias even before Ryan gets to question him.

In 2011, prosecutors in another war court case screened a video of the Palestinian — made before his capture in Pakistan in 2002 — praising bin Laden, the 9/11 attacks and the jihad.

“Our enemies know why we kill them and our friends know that we are right,” he is seen saying in the video, according to a certified war court translation. “For we follow that which God and the Prophet have said regarding killing the enemies of God: Jews, Christians, Apostates, Hindus, atheists … all of them. All enemies of Islam are our enemies.”

Zubaydah has for years maintained that he was not a member of al-Qaida but knew about the terror movement’s inner workings before the Sept. 11, 2001, attacks as a fellow jihadist in Afghanistan and Pakistan. A February intelligence assessment, however, described him as probably one of bin Laden’s “most trusted facilitators,” a jihadist who helped move fighters to and from Afghanistan.

James Mitchell, a psychologist who waterboarded and interrogated Zubaydah, wrote in his recent memoirs “Enhanced Interrogation” that after making the video, the Palestinian underwent cosmetic surgery to disguise himself and in the process developed an eye infection. The eye was apparently removed in CIA custody, and he now sometimes wears an eye patch, and sometimes doesn’t, displaying a false eye in his socket.

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©2017 Miami Herald
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