Attorneys for Abu Zubaydah say they have been trying to mount a meaningful defense for the "high-value" detainee, who has been in the custody of the US government since March 2002, and have also sought legal remedies outside of the United States to hold accountable those who were complicit in his rendition and torture.
But the attorneys claim their efforts have been stymied by the Justice Department (DOJ), which refuses to turn over to them critical documents they need to press forward with Zubaydah's case.
For example, late Thursday, Zubaydah's legal team filed a lawsuit against Lithuania with the Strasbourg-based European Court of Human Rights (ECHR), the leading human rights tribunal in the world, over the country's failure to reopen an investigation into its role in Zubaydah's rendition to a CIA black site prison in Lithuania and the torture he was subjected to there in 2005.
But the DOJ on Wednesday told Zubaydah's lawyers they would not declassify and turn over to them a power-of-attorney form Zubaydah signed earlier this year authorizing his legal team to file the lawsuit against Lithuania on his behalf.
The DOJ, according to Brent Mickum, one of Zubaydah's attorneys, refused to consider the document for declassification because the government maintains it has nothing to do with Zubaydah's habeas corpus case pending before a federal court judge in Washington, DC.
"How the government, with a straight face, could contend that facts relating to Zubaydah's detention in CIA custody at a CIA black site in Lithuania has no bearing on his defense is inconceivable to me," Mickum told Truthout. "The government is essentially trying to force us to sit idly by as the years pass and do nothing to further our client's interest a prepare his defense. But we can't do that. We are required to zealously pursue his defense by our profession's Canon of Ethics."
Alex Abdo, a staff attorney with the American Civil Liberties Union's (ACLU) National Security Project, said, "it is difficult to imagine what possible basis the government could have for refusing to release a document proving nothing more than the existence of an attorney-client relationship."
Mickum said the government demanded he justify how the power-of-attorney form would be used in Zubaydah's habeas case, which he would not do because "it would require us to provide the government with information that is protected under the 'work product doctrine.'"
"There is nothing that we, as Zubaydah's counsel, are doing that is not intended to directly support his habeas case," he said.
Zubaydah and more than a dozen other high-value detainees, who are being held at the Guantanamo Bay prison facility, are subject to a strict protective order that deems all of their communications classified. A government "privilege review team" based in Washington, DC, must first review materials, which includes notes, letters and memos, to determine whether it can be cleared for declassification.
According to a confidential letter filed with the lawsuit submitted ECHR Thursday, the DOJ's refusal to declassify Zubaydah's power-of-attorney form now requires his lawyers to seek legal remedies against the US government court for interfering with the Lithuania case. In lieu of Zubaydah's signed power-of-attorney form, according to the letter, his attorneys have asked the human rights court to accept an authorization form signed by Joseph Margulies, one of Zubaydah's other attorneys, that was submitted in July.
Dean Boyd, a DOJ spokesman, said Thursday, prior to the lawsuit being submitted to ECHR, that "we will not comment on a court document that has not yet been filed and which we have not had an opportunity to review."
"Victim of Torture"
Zubaydah's US attorneys have been working with human rights groups Reprieve and the International Centre for the Legal Protection of Human Rights (Interights) on the case.
The lawsuit "seeks a determination by the European Court of Human Rights recognizing [Zubaydah] as a victim of torture, secret detention and enforced disappearance on Lithuanian soil," a news release distributed by Interights states.
Interights said, "due to a communication ban imposed by the CIA, the U.S. Department of Justice and the Department of Defense that prevents him from publicizing the facts in his case," Zubaydah cannot "defend himself publicly."
Lithuanian government officials shut down the investigation in January and said last week they would not reopen their probe, despite the emergence of new evidence obtained by human rights groups in the form of flight logs that showed Zubaydah was flown from Morocco to Lithuania aboard a Boeing 737 in February 2005.
Crofton Black, an investigator with Reprieve, said the lawsuit "is a deeply embarrassing development for the Lithuanian Government."
"Because [the Lithuania government has] been unwilling or unable to get to the bottom of their part in the murky business of rendition, they are now being dragged before the European Courts," Black said. "Lithuania’s role in the CIA’s secret prisons programme will continue to be a stain on their international reputation, unless they undertake a proper, thorough inquiry into just what abuses were allowed to happen in their country.”
Zubaydah was captured, along with 51 other alleged terrorists, during an early morning raid of a safehouse in Pakistan on March 28, 2002, in an operation conducted jointly by the CIA, FBI and Pakistani intelligence. The Bush administration said publicly after Zubaydah was apprehended that he was the No. 2 person in al-Qaeda, was involved in every major terrorist operation planned by al-Qaeda and was one of the planners of the 9/11 attacks.
A legal memo prepared by Justice Department attorneys Jay Bybee and John Yoo in August 2002, which authorized the CIA to use brutal torture techniques on Zubaydah, said because the Palestinian was "one of the highest ranking members of the al-Qaeda terrorist organization," torturing him was necessary to thwart pending attacks against US interests, which the CIA claimed Zubaydah knew about.
But in a stunning admission last year first reported by Truthout, the DOJ backed away from nearly every major claim the Bush administration made about Zubaydah, including his membership in al-Qaeda and his role in 9/11 and other terrorist attacks, stating in a court filing in response to a discovery motion filed by Zubaydah's attorneys in his habeas case that their "understanding of [Zubaydah's] role in terrorist activities has ... evolved with further investigation."
Classification Abuses Alleged
Additionally, the government declined to declassify for the purposes of the lawsuit against Lithuania a signed declaration from Zubaydah totaling about 15 pages detailing the torture he was subjected to during his imprisonment at CIA-run prisons his attorneys had hoped to submit along with the power-of-attorney form.
The CIA also refused to process a mandatory declassification review Truthout filed last month of Zubaydah's poetry, short stories and other writings and about ten drawings he made, while imprisoned at black site prisons, depicting the torture he endured. Susan Viscuso, the CIA's information and privacy coordinator, told Truthout in two separate letters that the materials, "should they exist," would be part of the agency's "operational files," which means "records and files detailing the actual conduct of [CIA's] intelligence activities."
CIA operational files are exempt from Freedom of Information Act (FOIA) searches, reviews and "disclosure requirements."
Two years ago, Mickum filed a motion in federal court in Washington, DC, that accused the government of "improper classification" of documents that included statements Zubaydah made describing "the interrogation techniques inflicted upon him while in CIA custody ... other personal knowledge of his experience within the CIA Torture and Rendition Program and ... statements made by [Zubaydah's] counsel based upon information that is found within the public domain."
In March, US District Court Judge Richard Roberts issued a four-page order in response to that motion that said that any statements Zubaydah has made to his attorneys describing the torture he endured must remain classified and cannot be revealed publicly in court filings
Roberts said Zubaydah's legal team, in seeking to have Zubaydah's statements related to his treatment declassified, was essentially trying to bring "a FOIA challenge in the midst of a habeas petition."
"... The government must provide petitioner's counsel, not the public at large, with classified information unless the government moves for an exception to disclosure," Roberts wrote.
Abdo, the ACLU staff attorney, said, "unfortunately, this type of suppression is nothing new."
"For years, lawyers for Guantanamo detainees, even detainees conceded by the government to be innocent, have been prohibited from publicly revealing the gross details of torture and mistreatment documented in government records produced during their clients' cases," Abdo said. "The government's continued suppression of evidence of government abuse is anathema to an informed democracy and only underscores the continuing and urgent need for transparency and meaningful accountability for government torture and cruel treatment."
Mickum said the secrecy that now surrounds Zubaydah's power-of-attorney form is another bizarre development in Zubaydah's case.
He said he printed a blank power-of-attorney form off of a web site and, during a recent trip to Guantanamo, took it to Zubaydah for his signature.
But when he attempted to take the document into a meeting with Zubaydah, he was told that the Department of Defense and the DOJ now required him to have all documents cleared by the privilege review team in Washington, DC, which could take weeks. Another attorney on Zubaydah's legal team had to return to Guantanamo to have Zubaydah sign the document, after the blank document was finally cleared.
Once Zubaydah signed the form, the document was immediately classified top secret and, according to Mickum, put into an envelope that was "double-sealed" and taken to a secure facility in Washington, DC, by a government official who transports such documents in a briefcase handcuffed to his wrist and then places them into a safe. Mickum, who has top-secret security clearance, then had to go to the secure facility and submit the document to the privilege review team again for their review and request that it be declassified.
Mickum said the government's procedures, which were implemented by the Obama administration within the past year, make it difficult for him to do his job.
"Anything we take into a meeting with our client in Guantanamo has to first be cleared by the privilege review team," he said. "It could be something as simple as a newspaper article that cites him by name."
Mickum said he believes the policy is less about protecting classified information and more about shutting down any public access to the facts in the case.
"There's absolutely no reason or justification for it," he said. "But this process has never been about fairness or justice."
The DOJ's hard-line stance pertaining to Zubaydah's authorization form in the Lithuania case is at odds with the position the government took when Zubaydah's attorneys sought declassification of an identical form used in a similar lawsuit filed against Poland, which agreed in January to grant Zubaydah "victim" status." Zubaydah was transferred from a CIA black site in Thailand, where he had his eye surgically removed by US medical personnel and was first subjected to brutal torture techniques approved by Bush administration lawyers, to a secret CIA prison in Poland in December 2002 and held there for about nine to ten months.
Mickum said he's not surprised by the government's inconsistent position on the power-of-attorney form.
"The government cleared it for release in the Poland case," Mickum said. "Now, with the Lithuania case, they realize the purpose of it and that we will use information we obtain to defend our client in his habeas case; that is why they're saying 'no.'"