(Illustration: Jared
Rodriguez / t r u t h o u t)
The diaries, identified as volumes 7, 8 and 9, were written between 2002 and 2006 and total a little more than 300 pages. They were turned over to defense attorneys by the government late last year after a lengthy legal battle, and are believed to contain detailed descriptions of the torture techniques to which Zubaydah was subjected.
The diaries are crucial to the defense, said one of Zubaydah's attorneys, Brent Mickum, because they will reveal locations of where Zubaydah was detained and identify people with whom he spoke, contradicting previous government assertions that Zubaydah was connected to and involved in the planning of terrorist plots against the United States. Zubaydah began keeping a diary in 1992 after he suffered a severe head injury while fighting communist insurgents in Afghanistan. The injury left "significantly impaired both his long- and short-term memory," states a January 14, 2009, court motion filed by Mickum.
"The information [in volumes 7, 8 and 9] is hugely important to us from an exculpatory perspective," Mickum said in an interview. "It will help establish that [Zubaydah] is not the person the government claimed he was. The diaries will allow us to ask for specific, targeted discovery that will prevent the Government from claiming that we're on a fishing expedition or that they shouldn't be inconvenienced and be forced to search for things that do not exist. These diaries will lend credibility to the fact that we are not on a fishing expedition. We believe that Zubaydah's diary, for example, will identify individuals who made exculpatory statements to Zubaydah and that there will be specific descriptions about that. Among other things, that is evidence to which we are entitled and we certainly will seek its production."
However, because the diaries are written in Arabic and US District Court Judge Richard Roberts' ruling did not state that the government was required to have the diaries translated, it is unlikely the defense will learn what Zubaydah wrote about his torture any time soon. A clerk who works for Roberts would not discuss any aspect of the judge's ruling.
Mickum said Roberts had previously ordered the government to provide translations of volumes 1 through 6 of Zubaydah's diaries, written before his March 2002 arrest in Pakistan. The government's case against Zubaydah is based heavily on entries contained in the first six volumes of his diaries, according to court papers.
While Mickum said he was concerned about the veracity of the government's translations, a translator he had previously hired reviewed it and thought they were good. However, there were "some issues" that arose, the extent of which Mickum cannot discuss because those early volumes of Zubaydah's diaries, while unclassified, have been designated by the government as "protected," thus preventing the public from seeing any of this information.
"Frankly, it's just another, in a long litany of classification abuses that the judicial system, for whatever reason, refuses to address," Mickum said.
It is unclear why Roberts did not require the government to provide translations for volumes 7, 8, and 9, which are top secret because they describe specific torture techniques and may also describe the interrogators who administered the torture, Mickum said.
Zubaydah has written 12 volumes of diaries thus far. Volumes 1 to 6 have been completely translated, while there are only partial translations for volumes 10, 11 and 12, which were written while Zubaydah was transferred to Guantanamo.
"The cost of translating these volumes is exorbitant," Mickum said. "I'm talking hundreds of thousands of dollars. There is only one translator who has top-secret security clearance and he is working on 30 other cases and goes to Guantanamo every week. It would cost us about $1,300 for a six-hour day, a cost that does not include travel expenses."
Mickum said he received a $253,000 grant from the JEHT Foundation that was used, in part, to help pay for the translations of earlier volumes of Zubaydah's diaries. However, Mickum could not obtain additional funds from JEHT, a charity that backed juvenile and criminal justice system reforms, because the organization had a majority of its assets invested with Bernie Madoff, and was forced to shut down. Madoff ran what government prosecutors described as the biggest Ponzi scheme in history and is now serving a 150-year sentence in federal prison.
The Special Prosecutor and Zubaydah's Drawings
Zubaydah was one of two high-value detainees whose interrogations between April and August of 2002 were captured on 90 videotapes that the CIA destroyed in November 2005 as public attention began focusing on allegations that the Bush administration had subjected "war on terror" prisoners to brutal interrogations that crossed the line into torture.
The destruction of the videotapes has been the subject of an ongoing investigation led by John Durham, a US attorney from Connecticut, who was appointed special prosecutor in 2008 by former Attorney General Michael Mukasey to probe whether crimes were committed by CIA personnel and others in connection with the destruction of the tapes.
During a recent meeting with Durham, Mickum said he learned that the special prosecutor had obtained drawings during the course of his probe that Mickum believed were Zubaydah's. In addition to the diaries, Mickum had previously sought from the Justice Department drawings Zubaydah made while in CIA custody. But the Justice Department told Mickum they could not locate the drawings.
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