Wearing Out the 'Classified' Stamp on Abu Zubaida

By Walter Pincus
Tuesday, July 14, 2009

Has the U.S. government improperly classified the words and writings of Abu Zubaida, a high-value detainee now being held at Guantanamo Bay?

In a motion made in May in federal district court, attorneys for Abu Zubaida -- the nom de guerre of Zayn al-Abidin Muhammed Hussein -- wrote that the government was classifying what the prisoner was telling them, what he wrote in his diaries before being captured and during his seven years of captivity in Cuba, and even information that they had learned from public documents that he could not possibly know. Many sections of that motion itself -- from lawyers Joseph Margulies, George Brent Mickum IV and Baher Azmy -- are redacted in the recently declassified public version.

While the executive order authorizing classification requires the information to be "owned," "produced," or "controlled" by the U.S. government, Abu Zubaida's attorneys say the Justice Department has made a novel argument, that "to detain a prisoner creates a new, parallel authority to classify any and all utterances made by that prisoner for the period he is incarcerated." "Control" means government control over the agency that originates the information, not control over Abu Zubaida "by virtue of its power as a jailer," say his attorneys.

They acknowledge that the government controls access to their client and can limit his access to third parties but say that "authority to make information within a prisoner's knowledge secret does not similarly follow."

For years, under the system established for Guantanamo Bay detainees' attorneys, civilian lawyers had to sign agreements saying they would treat as classified any information their clients told them and leave their notes to be declassified by the government. The agreements also require them not to tell their clients information they learn about their cases that has not been cleared by the government, and to submit all their legal motions to be cleared before they can be made public. In addition, they cannot discuss their clients' cases with lawyers defending other detainees.

As a result, Abu Zubaida's attorneys argued in a second motion cleared June 22 for public release, they "cannot discuss [all] aspects of the litigation" with their client. They also cannot discuss all the information learned from their client with investigators, experts and other potential witnesses. And they cannot "correct public misperceptions" about Abu Zubaida, which they say the government created.

Take the issue of the waterboarding of Abu Zubaida, which was first officially acknowledged in February 2008 by the Bush administration and the CIA. A 2005 Justice Department memorandum recently released by the Obama administration said that the detainee was waterboarded "at least 83 times during August 2002."

Abu Zubaida's attorneys asked in their May filing why their client cannot be permitted to respond and explain what happened. "If Petitioner [Abu Zubaida] were able to respond, he would inform the public that [REDACTED] . . ." The government has argued that some of the details of Abu Zubaida's knowledge of the CIA's past detention and rendition programs includes details of activities that are still legal or secret. That could be, for example, the locations of former CIA secret prisons and complicity of foreign governments. In the declassified version of the lawyers' first motion, the government blacked out footnotes to some but not all published articles that listed where the CIA "black sites" may have been located, indicating that the redacted stories may have identified the correct countries.

Abu Zubaida's writings are being used against him but being withheld from the public. For example, within days of the Sept. 11, 2001, attacks, according to a summary of his diary entry read aloud at his military tribunal hearing on March 27, 2007, the Palestinian detainee wrote that he was buying and storing weapons as part of a plan that Osama bin Laden devised in expectation of U.S. military action.

At the tribunal hearing, which was designed to inform Abu Zubaida of the charges against him, a summary was read of an entry from early 2002 in which he wrote that he would wage war against the United States, using explosive attacks, attacking gas stations and fuel trucks.

In all, Abu Zubaida has nine handwritten volumes of diaries. Six of them, totaling about 1,500 pages, were written before he was captured, and three were composed after his capture. So far, the government has kept all nine volumes sealed, though they are apparently considered unclassified. Even the government's court motion on their status has remained sealed.

Abu Zubaida's attorneys also say the government, when it wants, declassifies in what appears to be arbitrary ways. They use as an example the release of a declassified version of the transcript of Abu Zubaida's Guantanamo Bay tribunal, including the detainee describing his "months of suffering and torture," but not the details of what was done.

The lawyers argue that the material should never have been classified in the first place. They add, however, that they still have yet to receive "an unredacted complete transcript" of the 2007 tribunal.

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