Zubaydah's attorneys claim that "the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included 'women, children, and/or other non-combatants'" and that the government has evidence to support those assertions. The lawyers also questioned the government's history of falsehoods about their client.
"The Government's accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so," said Zubaydah's attorney, Brent Mickum, in an interview.
"When the Government was forced to present the facts in the form of discovery in Zubaydah's case, it realized that the game was over and there was no way it could support the Bush administration's baseless allegations. So it changed the charges."
No Formal Allegiance
In seeking to block Zubaydah's discovery motions, the Justice Department also said the government was no longer contending that Zubaydah "was a 'member' of al-Qaida in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaida may have considered necessary for inclusion in al-Qaeda.
"Nor is the government detaining
[Zubaydah] based on any allegation that [Zubaydah] views himself as
part of al-Qaida as a matter of subjective personal conscience, ideology
or worldview. Rather, [the government's] detention of [Zubaydah] is
based on conduct and actions that establish [Zubaydah] was 'part of'
hostile forces and 'substantially supported' those forces."
That retreat contradicts initial claims made by senior Bush
administration officials, including Defense Secretary Donald Rumsfeld,
who described
Zubaydah as a "close associate of [Osama bin Laden], and if not the
number two, very close to the number two person in the organization. I
think that's well established."
Even after Zubaydah's interrogators apparently apologized to him for that mistaken impression at his Combatant Status Review Tribunal hearing, Zubaydah said "they told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter" the Bush administration continued to hype his role.
John Bellinger, legal adviser to
Secretary of State Condoleezza Rice, said during a
June 2007 briefing about Guantanamo Bay detainees that Zubaydah,
who was transferred to Guantanamo in 2006, helped plan the 9/11
attacks and was "extremely dangerous."
But the Justice Department now says "the Government has not contended
in this [habeas] proceeding that [Zubaydah] had any direct role in or
advance knowledge of the terrorist attacks of September 11, 2001, so
[to] the extent that this request seeks information 'tending to show
... that [Zubaydah] did not know of the planned attacks of 9/11', the
request seeks evidence about contentions the Government has not made."
The Justice Department also asked
U.S.District Court Judge Richard Roberts, who is presiding over the
habeas case, to deny defense requests for evidence that would
"undermine" government claims that Zubaydah worked on bin Laden's
"military and security plan to confront an American counterattack" in
Khost, Afghanistan, after 9/11.
"The Government does not rely on any contention that [Zubaydah] did
this work as an 'al-Qaida' deputy or because he was subject to al-Qaida
command," according to the court document.
Blocking a KSM Interview
And the Justice Department opposed Zubaydah's lawyers' request to
question Khalid Sheikh Mohammed about whether he met Zubaydah, when the
two were allegedly in Kandahar at the same time in November 2001.
"It is difficult to imagine how any answer
from Khalid Sheikh Mohammed would substantially help [Zubadyah]," the
government filing said. "Even if Khalid Sheikh Mohammed were to say he
did not meet with Petitioner while they were in Kandahar, the fact that
[Zubaydah's] presence in Kandahar coincided with the presence of major
terrorist figures in Kandahar would still weigh in favor of [his
continued] detention."
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