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Why No Trials for Abu Zubaydah and Seven Other “High-Value Detainees” in Guantánamo?

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Two weeks ago, when Khalid Sheikh Mohammed and four other “high-value detainees” were arraigned at Guantánamo in preparation for their forthcoming trial by military commission, they brought to eight the number of “high-value detainees” tried, put forward for trials, or having agreed to a plea deal to avoid a trial and secure a reduced sentence.

In total, 16 “high-value detainees” have been sent to Guantánamo — 14 in September 2006, one in 2007, and another in 2008. One, Ahmed Khalfan Ghailani, was tried and convicted in federal court in New York in 2010; another, Majid Khan, accepted a plea deal in February this year; and Khalid Sheikh Mohammed and his four co-defendants join another prisoner, Abd al-Rahim al-Nashiri, in the slow-moving queue for military commission trials at Guantánamo.

But what of the other eight? Are there any plans to try them? Or is the Obama administration happy for them to be held for the rest of their lives without charge or trial — a confirmation, if any were needed, that indefinite detention without charge or trial has, through Guantánamo, become normalized?

Last week, the best known of these other “high-value detainees,” Abu Zubaydah, asked those questions through his lawyers. Seized in a house raid in Faisalabad, Pakistan, in March 2002, Zubaydah was held in a variety of secret CIA prisons for four and a half years. Indeed, the Bush administration’s torture program was specifically developed for him, as explained in two memos issued by the Justice Department’s Office of Legal Counsel (OLC) on August 1, 2002, that will forever be known as the “torture memos.” In another memo issued by the OLC in May 2005, it was revealed that, as part of his torture, Zubaydah was subjected to the ancient torture technique known as waterboarding, a form of controlled drowning, on 83 occasions.

On May 10, lawyers for Abu Zubaydah sent a letter to the Convening Authority (PDF), Retired Vice Adm. Bruce MacDonald, the Pentagon legal official who presides over the commissions. In it, they said they had “repeatedly sought a ‘legitimate evaluation’ of his case,” as the Associated Press described it.

The letter, signed by four lawyers, stated that Abu Zubaydah “requests that the Convening Authority commence prosecution of him before a military commission at the earliest possible date.”

One of the lawyers, Joseph Margulies, a professor at Northwestern University School of Law in Chicago, pointed out that, despite initially touting Zubaydah as the number 3 in al-Qaeda, the U.S. government has “since backed off earlier statements” that he “was a leader of al-Qaeda and senior associate of Osama bin Laden.” Noticeably, the FBI always maintained that he was the mentally damaged gatekeeper of an Afghan training camp that was unconnected to al-Qaeda.

In crucial court submissions in 2009 (as reported in Truthout) and 2010 (in the habeas corpus petition of Sufyian Barhoumi, an Algerian seized with Zubaydah), the government resorted to claiming that Zubaydah ran his own militia allied with al-Qaeda, an accusation based on the alleged discovery of a diary written by an unidentified Syrian.

According to Margulies, however, even that claim has since been watered down. He explained that “officials now believe he provided logistical support to militants in Pakistan and Afghanistan, but not people affiliated with” al-Qaeda. He further stated, “We think one of the reasons he hasn’t been charged is because of the yawning chasm between who they thought he was when he was the poster child for the torture program and who they now understand him to be.”

In conclusion, the AP article pointed out that Zubaydah and the other “high-value detainees” are held in Camp 7, “a top-secret section of the Guantánamo Bay prison,” where secrecy is indeed the defining characteristic of the men’s detention. As the article explained, because of “secrecy rules,” Zubaydah’s attorneys are not allowed to disclose any details about him or about “the conditions of his confinement.” Margulies noted that Zubaydah “has been experiencing gradual memory loss and can no longer remember the names of his parents or his birth date as a result of his treatment in custody.” As he explained, “We are very concerned about his welfare, about his mental health.”

Despite the secrecy, however, Abu Zubaydah’s lawyers have managed to reveal enough about him over the years for him to be known to the public, to some extent. In the cases of the other “high-value detainees,” however, the wall of secrecy is so impenetrable that almost nothing at all is known about them beyond the profiles issued by the Bush administration in September 2006 (after the 14 “high-value detainees” arrived at Guantánamo), which are available here (PDF), and — for the two others — in the Pentagon press releases here and here.

For the five who arrived at Guantánamo in September 2006, military review boards — the Combatant Status Review Tribunals — were held in the spring of 2007, but only two took part. One was Riduan Isamuddin, an Indonesian also known as Hambali who was seized in Ayutthaya, Thailand, on August 11, 2003, and held in secret CIA prisons for three years. He claimed that he had resigned from Jemaah Islamiya, a Southeast Asian terrorist organization allied with al-Qaeda, in 2000, and was not involved with any bombings or plots. The other was Mohammed bin Lep, a Malaysian known also as Lillie who was seized with him and who denied every allegation about his supposed involvement with Jemaah Islamiya, admitting only that he had once transferred some money to Hambali. A second Malaysian, Mohammed Farik bin Amin, also known as Zubair, who had been captured in Bangkok on June 8, 2003, and who was thought to be another accomplice of Hambali, refused to participate in his tribunal, responding only occasionally to say yes or no “in a very low voice.”

Another of the “high-value detainees,” Abu Faraj al-Libi, who was seized in Mardan, Pakistan, on May 2, 2005, and was regarded as number 3 in al-Qaeda (just like Abu Zubaydah before him), refused to take part in his tribunal, challenging the legality of his detention in a written statement. In it he argued that “his freedom is too important to be decided by an administrative process.” He demanded the right to be represented by a lawyer and to challenge the evidence against him. Al-Libi has since become known as one of the sources of the intelligence that led to the assassination of Osama bin Laden last year — with apologists for torture falsely claiming that torture had been used to secure the intelligence — but not a single word has emerged from al-Libi himself.

In the case of the last of the five, Gouled Hassan Dourad, a Somali, who was seized in Djibouti on March 4, 2004, little is known. It is alleged that he was a facilitator for forces allied to al-Qaeda in Somalia, but, although he took part in his tribunal, he admitted only that he had fought jihad against Ethiopians in the defense of his country and said that he had not fought against U.S. forces.

For the two other “high-value detainees” who arrived at Guantánamo in April 2007 and March 2008 — Abd al-Hadi al-Iraqi and Muhammed Rahim al-Afghani — the silence is complete. Neither man has been given a Combatant Status Review Tribunal, and therefore neither has had the opportunity to mention anything about his experiences since his capture. A fact sheet on al-Iraqi — whose role as a significant figure in al-Qaeda is well documented — was made available (PDF) by the U.S. military after his transfer to Guantánamo. Of course, that doesn’t provide him with a voice, or explain what happened between his capture — apparently in late 2006 — and his arrival at Guantánamo up to six months later.

In the case of al-Afghani, all that is known is one line from the press release announcing his arrival at Guantánamo on March 4, 2008, in which it was stated that he “was a close associate of Osama bin Laden and had ties to al-Qaeda organizations throughout the Middle East,” and “became one of bin Laden’s most trusted facilitators and procurement specialists prior to his detention.” Further information was uncovered in August 2009, when, analyzing an internal CIA report, the Associated Press, describing him as a suspected translator for bin Laden. The AP surmised that he was probably the prisoner referred to in the report who had been subjected to sleep deprivation for five days straight in August 2007 and for six days straight in November 2009.

I hope that Abu Zubaydah’s lawyers extract some sort of explanation from the U.S. authorities regarding their client’s seemingly perpetual detention without charge or trial. I hope also that, at some point, the situation in which the other “high-value detainees” are held becomes a matter of discussion — both in public and in the corridors of power — as they are part of an even bigger and more depressing situation at Guantánamo.

That situation is one in which, although 87 of the remaining 169 prisoners were cleared for release by Barack Obama’s interagency Guantánamo Review Task Force in 2009, 36 others were recommended for trial and 46 others for indefinite detention without charge or trial, almost all of them appear to be indefinitely detained without charge or trial.

In the cases of the “high-value detainees,” as is clear from the stories above, one major problem for the Obama administration is that they were all subjected to torture, although that is also true of many of the other men still held. That should not provide an excuse for them to be held in limbo forever, but as Abu Zubaydah’s lawyers have realized, innovative approaches are needed to bring the stories of any of the men into the public eye and to ask, after more than ten years, whether that is anything other than a complete disgrace.

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    Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press) and serves as policy advisor to the Future of Freedom Foundation. Visit his website at: www.andyworthington.co.uk.