The US Government Owns Abu-Zubaida’s Thoughts

I just found an interesting article by Walter Pincus tucked away in the lower half of the Washington Post website. It contains no new or breaking news, but is an interesting description of just how far the government has run amok in their over-classification and demand to control information flow to the American people and the world.

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.

Marcy discussed the initial rumblings of this back in May when Abu Zubaida’s attorneys first raised the matter. It was at that point the government admitted it could not or would not produce key volumes of Abu Zubaydah’s diaries in preparation for his Combat Status Review Tribunal hearing. As Marcy noted:

The whole filing is worth reading for the Kafkaesque situation it describes, in which AZ, whose memory is described to be completely dysfunctional, has been refused the sole record he has of the events of which he has been accused, even though at least three of those accusations come directly from his diary.

Abu-Zubaida’s attorneys, because of the hyper degree of over-classification by the government, cannot fully discuss their case with their client, cannot discuss information learned from their client with their own investigators, experts and other potential witnesses, and cannot correct lies and misinformation the government has put in the public record about their client. This is a gross and intentional invasion of the attorney-client relationship and a denial of full and effective assistance of counsel.

How exactly has the government (yes, again it is both Bush and Obama, a oneness no longer shocking) effected this information and thought seizure?

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."

The critical implication here is on the ability of Abu Zubaida (and presumably other detainees) to form a defense, participate in their defense, and obtain a fair hearing in any forum, whether it is a Habeas action, a CSRT, military tribunal or federal court prosecution. This restriction of information and, literally to some extent thought control, by the government completely destroys any meaningful interaction with his attorney and places a choke hold on the ability of the attorney to represent his client. This is antithetical to the edicts the United States, and its justice system, is founded upon. Courts across the United States daily dismiss cases, sometimes at the behest of the government such as in the Ted Stevens prosecution, because the government is not forthcoming with evidence they possess. What does it say when the government blocks the ability of a detainee to use information he possesses? Kafka indeed.

Basically the US Government is of the opinion that it owns and controls the thoughts of Abu Zubaida and, presumably, anyone else within its dominion and control. The government feels free to use Mr. Zubaida’s own information against him, yet will not let him use it in his defense. These are interesting times we live in.

UPDATE: I have just found the pleading just made public causing Pincus to write his article. It is a damning explanation of what is going on here and the deleterious effects upon Abu Zubaida, his attorneys and their ability to represent his interests under even nominal norms of justice. Here is the document as retrieved from PACER. It is a very instructive read. A couple of key passages:

The Government is plainly attempting to prevent or delay the public recognition of exculpatory evidence. Indeed, as Petitioner has previously argued in its pleadings, and as has also been redacted from the public, Petitioner’s post-arrest diaries, drawings, and other writings are a trove of exculpatory evidence.

and

According to information recently revealed by the Obama Administration, however, abu Zubaydah was not waterboarded once, but rather was waterboarded "at least 83 times during August 2002." Why shouldn’t Petitioner be permitted to respond? There is no valid reason. The real explanation behind the Government’s stance is merely the desire is to conceal violation of law, prevent embarrassment, and prevent or delay the release of information that does not require protection: for instance, if Petitioner were able to respond, he would inform the public that [redacted]…

How is Mr. Zubaida supposed to defend himself and how are his attorneys supposed to represent him under these conditions?

  1. Mary says:

    Slavery making a comeback?

    And haven’t his lawyers claimed that some of what is in the diaries is very exculpatory as well?

  2. BayStateLibrul says:

    Another diary?

    February 3, 1944
    “I’ve reached the point where I hardly care whether I live or die. The world will keep on turning without me, and I can’t do anything to change events anyway. I’ll just let matters take their course and concentrate on studying and hope that everything will be all right in the end.”

    The Diary of Anne Frank

  3. JimWhite says:

    Geez. Those gummint lawyers are making some crazy arguments lately. Somehow, it seems to me that this should be viewed in light of the recent move to ban access to “Dreams of My Father” and “The Audacity of Hope” for a prisoner in maximum security. There’s some strange thinking on “thought control” at DOJ…

  4. TheraP says:

    Thank you, bmaz, for bringing this subject back up.

    I remind us that he refers to his diaries as “my children”. I also remind us that his need to write may reflect a brain disorder in and of itself. Since he apparently did not even start writing these diaries until after he sustained a brain injury, which left him needing to relearn speech, an injury consistent with temporal lobe brain damage – exactly the part of the brain, which, if there are seizures, can lead to obsessive writing. Writing, which may contain aggressive fantasies and other emotional material – whose genesis may be part of the disorder – rather than an indication of aggressive intent or ability to carry out such fantasies.

    The man may well be mentally ill. His writings may well indicate that. He may have a brain disorder which resulted in the extensive diaries. Without the “evidence” the man is unable to muster the defense he deserves – particularly if such writings are being used (even misused?) as a case against him.

    This distresses me no end! On a number of levels.

    It seems more likely that this man needs treatment – rather than punishment. Treatment of which he has already been deprived – especially if his writings may hold diagnostic evidence. Punishment, which he has already been dealt – along with torture – without regard for any legal process beforehand.

    It is a travesty and an indictment. Not against him. But against us.

  5. bmaz says:

    I just entered the following as an update to the main post.

    UPDATE: I have just found the pleading just made public causing Pincus to write his article. It is a damning explanation of what is going on here and the deleterious effects upon Abu Zubaida, his attorneys and their ability to represent his interests under even nominal norms of justice. Here is the document as retrieved from PACER. It is a very instructive read. A couple of key passages:

    The Government is plainly attempting to prevent or delay the public recognition of exculpatory evidence. Indeed, as Petitioner has previously argued in its pleadings, and as has also been redacted from the public, Petitioner’s post-arrest diaries, drawings, and other writings are a trove of exculpatory evidence.

    and

    According to information recently revealed by the Obama Administration, however, abu Zubaydah was not waterboarded once, but rather was waterboarded “at least 83 times during August 2002.” Why shouldn’t Petitioner be permitted to respond? There is no valid reason. The real explanation behind the Government’s stance is merely the desire is to conceal violation of law, prevent embarrassment, and prevent or delay the release of information that does not require protection: for instance, if Petitioner were able to respond, he would inform the public that [redacted]…

    How is Mr. Zubaida supposed to defend himself and how are his attorneys supposed to represent him under these conditions?

  6. Garrett says:

    I don’t think Walter Pincus should be allowed to tell us that the lawyers are not allowed to tell us about what their client is not allowed to tell us, or about what the lawyers or the client are not allowed to know or read or remember or think.

    And if the weakness in the system is ever fixed, Walter shouldn’t be allowed to tell us about it.

  7. Mary says:

    Do we know what is going on the with redacts at the top and bottom of the pages? Where it looks like something was lined through and next to it is types “unclassified/for public use”

    Did someone try to classify the petitioner’s filing?

    I do remember back in the day, the argument over (I think it was Majid Khan?) a detainee who had been tortured not being authorized to tell his lawyers how he was tortured, bc then they would know the uber classified interrogation tactics.

    Personally, I’m waiting for them to argue that Zubaydah’s brain doesn’t have clearance for his thoughts and there’s nothing left for it but to lobotomize him.

    • bmaz says:

      Yeah, I am pretty sure that is exactly the deal. My guess is it was filed, per stipulation with the parties and the court ahead of time, under seal and classification. They apparently do not have the bifurcated public/sealed system that Walker does. Interesting reading though, eh?

      Have they not already pretty much destroyed his brain?

      • Mary says:

        You are right, I’m sure. I didn’t realize from the first glance that they would be getting into “classified” argument/facts given the nature of the topic. And apparently they aren’t much – it’s just that for that purposes of those filings, public info citation is required to be redacted because – well, I think it goes back to if the truth is so classified, all you are allowed to speak is lies.

        I think he was kind of nuts well before we got him, but yeah, I’d say they have done a good enough job on the rest that it’s not like he can provide assistance to counsel in any event, along with apparently having repeating and painful seizures.

  8. JimWhite says:

    Have they not already pretty much destroyed his brain?

    Coupled with the title of the post, we have now completed Colin Powell’s Pottery Barn rule: You break it, you buy it.

  9. Mary says:

    stream of consciousness comments while I’m finishing the petition:

    I guess a contemporaneous writing by A-Z on being waterboarded and otherwise tortured in May or June wouldn’t be real helpful for Gov.

    They have followed the al-Harramain lead in quoting Obama back to DOJ lawyers – transparency, accountability, etc.

    On p 10, after stating that Obama rejected the national security damage ground when deciding to release similar facts in the memos, they drop a footnote and most of it is redacted. I wonder what’s in in that.

    Obviously, foreign torture chambers are a really hot topic, since you have petitioners saying the black sites have been widely reported, dropping a footnote and most of that footnote, which presumably cites the public reporting just referenced, if redacted. Wow – citations to public press reports are classified?

    My favorite footnote is 33, where they say Gov “has conceded that the following information does not warrant redaction” and that is followed by, redaction. I guess petitioners didn’t notice the extra emphasis on the “con” in conceded.

    I’m happy to see all these newer filings hitting harder on the EO violations (so if someone wants to claim pixie dust, esp on behalf the the transparency President, it puts them very left footed). Ultra vires, illegal, embarassing — “I’ll take things that cannot be properly classified for 100 Alex”

    There is a telling long redaction that is followed by this unredacted statement: “This information is plainly exculpatory: it makes clear that Petitioner was not who the Government touted him to be, and further, that the Government realized this only after sadistically torturing him.”

    And oh yeah, that predicate in Yoo’s memos for the torture to only be authorized if Zubaydah was a high level Al-Qaeda Operative — I guess it wouldn’t do well for Gov torturers to have it come out that the facts they told Yoo existed and which were required to exist for reliance on the opinion … didn’t exist.

    I guess the DC cowboys are replacing the, “Save a horse, ride a cowboy” stickers with a newer, “Save a torturer, classify a victim” version.

    From what looks like unredacted, previously redacted references, there are drawings and “other writings” as well as Zubaydah’s diaries and at footnote 42 – the big redacted, now not statement of, “That is not surprising given that the CIA nearly killed Petitioner” emph added.

    You almost laugh at places, except it is so very not funny. Not only are Zubaydah’s thought classified, so are everyone’s thoughts – everyone’s thoughts about classified things. Gov argues that if Petitioner’s counsel is given access to info bc of security clearances, then even if that info is already out in the public arena in public articles and papers, Petitioner can’t cite to those public sources. I guess because one Petitioner’s counsel are told about a “classified” piece of information, Gov own all thoughts on that piece of information, even clearly public information.

    Per the end of 21, beginning of 22, a part of what is redacted is Petitioner pointing out that “contrary to Government’s own public statements…” That’s an interesting offshoot argument by Gov I guess. If the “truth” is “classified” it’s ok to use what you have left – lies – on the public. And no one with “clearance” can contradict you bc, well, the truth is classified. Yikes.

    Then there’s the big ol block of redaction that is a lift from the unclassified Senate Armed Services Committee report. Um, Senator Levin, want to chime in to the court about whether or not your publicized, non-classified, report information can be cited without redactions?

    • Knut says:

      Gov argues that if Petitioner’s counsel is given access to info bc of security clearances, then even if that info is already out in the public arena in public articles and papers, Petitioner can’t cite to those public sources. I guess because one Petitioner’s counsel are told about a “classified” piece of information, Gov own all thoughts on that piece of information, even clearly public information.

      I think something like this applies in the United Kingdom. An Anglo-Saxon habit, I suppose.

    • bmaz says:

      Ultra vires, illegal, embarassing — “I’ll take things that cannot be properly classified for 100 Alex”

      Man you got that right.

      There is a telling long redaction that is followed by this unredacted statement: “This information is plainly exculpatory: it makes clear that Petitioner was not who the Government touted him to be, and further, that the Government realized this only after sadistically torturing him.”

      And oh yeah, that predicate in Yoo’s memos for the torture to only be authorized if Zubaydah was a high level Al-Qaeda Operative — I guess it wouldn’t do well for Gov torturers to have it come out that the facts they told Yoo existed and which were required to exist for reliance on the opinion … didn’t exist

      .

      Ditto.

      I guess the DC cowboys are replacing the, “Save a horse, ride a cowboy” stickers with a newer, “Save a torturer, classify a victim” version.

      Ouch, that’s gonna leave a mark.

  10. WarOnWarOff says:

    Basically the US Government is of the opinion that it owns and controls the thoughts of Abu Zubaida and, presumably, anyone else within its dominion and control.

    “I can haz your thoughts and they taste like cheezburger.”

    /USA! USA! USA!

  11. earlofhuntingdon says:

    How is Mr. Zubaida supposed to defend himself and how are his attorneys supposed to represent him under these conditions?

    The answer is, they’re not. The government, like the French Army prosecuting Capt. Dreyfus, can only accept conviction. Conan Doyle succinctly described the thought process, though in another context altogether:

    [W]hen you have eliminated the impossible, whatever remains, however improbable, must be the truth.

  12. earlofhuntingdon says:

    It’s settled law that, absent the sale or licensing of his or her works, a writer owns the copyright on them, even when the law forbids a convicted prisoner from profiting from them.

    The government cannot legitimately use part of these diaries to prosecute this man while forbidding the defense from seeing the portions it intends to use or the portions it would keep “secret”, and which may contradict or put in a less damning context the parts it chooses to use.

    The thought process leading to this “legal” position is from the worst Kafkaesque excesses of Soviet and Communist Chinese regimes. It is something out of the Court of Star Chamber and the Inquisition. It assumes the medieval king’s right to do as he pleases because he is king, which makes him right. The Bastille was filled with prisoners held on such whims; it was an emblem of and reason for the demise of the ancien regime.

    Why would a modern day, post-Enlightenment government resurrect such arcane reasoning, so antithetical to the history and myths upon which this government and nation are founded? Is it only because its leadership wants to protect itself from being sent to the same dock?

    • chetnolian says:

      May a foreigner chime in on this really painful subject?

      I was having the same thoughts as you, and the only thing I can come up with is this. The abuse of power of the Bush administration was so complete that it has infected and corrupted the majority of the people in the US security and intelligence gathering system. But the new administration believes that it does need this system to work for the purposes it was created, protecting the people of the USA. The truth might destroy so many people in the system it stops working.

      This is no justifiaction, but it probably is the reason. It suggests getting the security system back to a pre-Cheney state may be a long and painful job.

      I’ll watch with both sympathy and anger.

  13. THATanonymous says:

    Have you been having trouble thinking lately?
    Difficulty remembering things you think you once knew well?

    Perhaps it’s just that you are owned/controlled and your thoughts have been classified/redacted too. Of course, if that were the case, the fact of that classification would be classified, so you wouldn’t know about it.

    Are you getting the picture yet?

    And by the way… ummm…uhhh… Damn, I knew what I wanted to say a minute ago.

    TA (The law is classifed so you can’t know about it. Shorter: the law is not the law)

    • Mary says:

      That’s pretty good. It can run right after a male enhancement ad. You left off the, “Side effects of neural classification may vary and include repeated bouts of temporary drowning, involuntary disappearance and isolation, forced nudity and hypothermia, and dizziness following sessions of being swung headfirst into walls. May include lifetime and even post rigor detention. In some cases, side effects include death. See your CIA appointed psychologist for the side effects they feel best suit your situation”

  14. serge says:

    I would just like to give a big shout out to one of Zayn al Abidin Muhammad Husayn’s tireless lawyers, Brent Mickum. I’ve known Brent since we started in the First Form at a nameless DC school, at about the age of thirteen.

    He is to be commended, to put it lightly, and his firm should share for their willingness to allow Brent to continue this work. If he doesn’t do it, who will?

    • Mary says:

      They really are, so a special thanks to your friend Brent and to his firm for supporting the effort as well. The emotional, procedural, financial, geographic etc. obstacles are huge.

      Thank you, Brent, et al.

  15. lysias says:

    I wonder if what they’re trying to conceal is that the waterboarding of Abu Zubaydah started in May-June 2002, months before DOJ approved it. Since we now have both Kiriakou and Wilkerson testifying that the waterboarding began then, are they entitled to keep Zubaydah’s testimony on the point secret?