Opinions

Why hasn’t Abu Zubaida been tried?

Amanda L. Jacobsen is an attorney for Abu Zubaida. She is researching national security and international human rights law at the University of Copenhagen.

This week marks 10 years that my client Abu Zubaida has been held in U.S. custody. After a decade of imprisonment, Abu Zubaida has never been charged with a crime, much less found guilty. This week there was movement: Charges were unveiled — not against Abu Zubaida but against a senior government official involved in the CIA’s rendition program.

The development occurred in Poland, where the former head of the Polish intelligence services is charged with unlawful deprivation of liberty, abuse of office by a public official, unlawful corporal punishment (i.e., torture) and — notably — unlawful deprivation of access to a court of justice.

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America's approach to justice.

America's approach to justice.

Since 2007 Abu Zubaida has had an active habeas corpus case — brought by him against the U.S. government to challenge his detention. But in five years this case has not yielded any finding that Abu Zubaida is a danger to the United States. To the contrary, since my co-counsel and I first filed a discovery request in 2009, seeking access to the evidence in the government’s possession, his habeas case has been at a standstill. We have more than a dozen motions pending before the D.C. District Court, many of which have been waiting since 2009. We continue to await the production of the government’s evidence. We have repeatedly asked for a status conference, to move his case forward. Each time the government has opposed our request.

While Europe is moving forward and seeking accountability from its officials for illegal conduct, the United States is not.

We must ask why no charges have been brought against U.S. officials. But we must also ask why charges have never been brought against Abu Zubaida — and what is really known about my client.

U.S. officials have said that Abu Zubaida was a senior al-Qaeda terrorist. They claimed that he was the “No. 3 man” in al-Qaeda, its chief of operations, who worked directly with Osama bin Laden. They said that he was personally involved in the Sept. 11, 2001, attacks and every other major al-Qaeda operation and knew the details of future attack plans.

But all of these assertions were wrong.

To the contrary, the government has explicitly conceded in Abu Zubaida’s habeas corpus case that he was never a member of al-Qaeda and had no knowledge of al-Qaeda operations. These allegations are not the basis on which the government requests that Abu Zubaida continue to be detained.

While the media continue to parrot the early mischaracterizations, the U.S. government has quietly airbrushed every reference to him out of the charge sheets of other detainees.

In September 2006, President George W. Bush announced that he was transferring Abu Zubaida from a secret prison, beyond the reach of the law, to the U.S. naval base at Guantanamo Bay, Cuba, so that he could be charged, prosecuted and brought to justice. Bush said that America had a duty to bring to justice those responsible for acts of terrorism. When President Obama took office, he said he would close Guantanamo and tasked officials with categorizing the detainees, identifying prisoners whom the government wanted to prosecute, those it wanted to release and those who could seek relief though habeas corpus.

Despite having top-secret security clearance as Abu Zubaida’s counsel, I haven’t been allowed to see that list, so I don’t know which category the administration put Abu Zubaida in. What’s clear, unfortunately, is that this categorization system makes no difference to the fate of these men. Imprisonment at Guantanamo Bay is not about justice. More than half of the men still there were “cleared for release” years ago. Even prisoners who win their habeas cases or are found innocent of charges brought against them may remain at Guantanamo indefinitely.

We must ask: If Abu Zubaida is a terrorist, why does the government refuse to charge him and bring him to justice?

The reason is: The government got it wrong. U.S. officials made hyperbolic assertions about Abu Zubaida and relied on these false allegations in their efforts to justify his rendition, secret detention and torture, as well as the torture of many others — acts that Europe, at least, admits are grave legal violations. By U.S. government reports, Abu Zubaida was waterboarded 83 times in one month. And despite court orders to preserve evidence, the government destroyed 90 videotapes of his torture and interrogations.

People assume that the government has not prosecuted Abu Zubaida because he was tortured. But the government has admitted to waterboarding two other men, Khalid Sheik Mohammed and Abd al-Rahim al-Nashiri, both of whom face criminal prosecution.

I have visited Abu Zubaida in Guantanamo every few months for three years. I am, along with prison guards, among the very few people with whom he is allowed to speak. But everything I know about him — as a person and about his legal case — is shrouded in secrecy. If I tell anyone anything that I’ve learned about Abu Zubaida from speaking with him directly, I risk imprisonment myself.

When people ask me whether Abu Zubaida is guilty, I can say only: Isn’t it time we find out?

The government has had 10 years to get its case together. Those who believe that Abu Zubaida is a terrorist should bring charges against him and allow him to defend himself.

 
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