Government Admits Its Understanding of Abu Zubaydah Has “Evolved”

I wanted to return to the government’s filing on Abu Zubaydah backing off the key claims on which our torture system is based. A year ago, the government filed its factual return to justify the detention of Abu Zubaydah. In response, AZ’s lawyers asked for a bunch more information, such as evidence that AZ was not a member of al Qaeda and didn’t know about 9/11 before it happened. This document, which is the government’s response to that request, argues that AZ is not entitled to the information, because the government’s factual return did not allege that AZ was a member of al Qaeda or knew about 9/11. In other word, the government is arguing that, in spite of all the times that government officials up to and including the President have made such claims, the government is no longer doing so, and so AZ doesn’t need to refute such claims, and therefore isn’t entitled to information that would refute them.

Which means that what happened to Jose Padilla is happening with AZ: when the government was forced to actually provide evidence to support its claims, it abandoned some of its more sensational claims. Arguably, one of the reasons the government backed off its claims has to do with eliminating all charges that might have come from AZ’s torture (though the government hasn’t done so with other detainees who were tortured); it says all of the assertions in the factual return are based on things disclosed in AZ’s diaries and in one video he shot. But the government did explicitly admit that its understanding of who AZ is has changed.

Petitioner’s various requests aimed at uncovering information that suggests that Government agents or agencies questioned or abandoned early assessments about Petitioner’s activities (Pet’r’s Mem. at 23-26, 29 n.43; Request Nos. 14, 44,45, 51, 56, 66, 96i-j) also do not fall within the scope of CMO § I.E.2. Petitioner has not shown that access to such documents and information would help him contest the information contained in the Government’s factual return. The factual return represents the current basis of the Government’s detention and the only relevant basis for purposes of this proceeding. Petitioner cannot obtain habeas relief by merely showing that the Government’s understanding of Petitioner’s activities has evolved since his capture or that individual Government agents have disagreed with past Government assessments and analyses.

Petitioner’s Request Nos. 14, 44, 51, 56, and 66 seek evidence suggesting that the Government’s “initial assessments were incorrect or exaggerated,” and also seeks information about allegations that the Government has asserted in other cases that are inconsistent with allegations made in this case. The issue in this litigation is whether Petitioner’s detention is lawful based on the contentions and evidence that the Government has presented to the Court in its factual return, not whether Petitioner’s detention would be lawful under some other set of contentions Petitioner has selected. The Government’s understanding of Petitioner’s role in terrorist activities has necessarily evolved with further investigation. Evidence that the Government has abandoned or revised earlier beliefs about the Petitioner would not make Petitioner’s detention unlawful under the Government’s current understanding ofthe facts, as reflected in the factual return. Petitioner’s requests for evidence and information about earlier Government assessments fall outside the scope of CMO § 1.0.1 and fail the narrow tailoring, specificity, and good cause requirements ofCMO § 1.£.2(1), (2), (3), and (4). [my emphasis]

“Evolved with further investigation.” Based on diaries they’ve had since 2002.

The contents of this filing fills in some of the allegations that are redacted in the factual return. Together, they show that the government alleges that AZ:

  • Trained in a series of mujahadeen training camps (though not at a time when they were targeting the US)
  • Paid the expenses for the Khaldan training camp, at which people from persons from al-Qaida, Egyptian Islamic Jihad, Anned Islamic Group,Salafite Group for Preaching and Fighting, Hamas, and Hizballah–including Mohammad al Owhali, one of the embassy bombers, and Khalid al Mihdhar–trained (though both al Owhali and al Mihdhar also trained at other camps)
  • Was (according to Ahmed Ressam) “the ‘top guy’ and was in charge [of] moving persons who came to Pakistan/Afghanistan for training and [of] assisting with their papers, money or providing safe harbor at a guesthouse”
  • Was associated with a guesthouse in Peshawar at which Ressam met three Saudi men who had attended the al-Faruq or al-Sidiq al-Qaida training camps
  • Gave Ressam a letter that allowed him to train at Derunta training camp
  • Learned of Ressam’s plan for an attack in the US–though not the time and place
  • “Coordinated and cooperated with [OBL] in the conduct of training and trainee movements between their camps,” but didn’t necessarily know the identities of people selected to move from Khaldan to al Qaeda training camps
  • Met with OBL to discuss the potential union of disparate mujahideen groups under common leadership; the government does not allege AZ agreed with OBL’s proposal and they acknowledge that OBL had the Taliban shut down Khaldan in an effort to consolidate control over training camps afterwards
  • Made a video supportive of al Qaeda
  • Was “an affiliate”–but not a member–of AQ
  • “‘Work[ed] in [OBL’s] military and security plan to confront an American counterattack’ in Khost, Afghanistan, after the September 2001 attacks”–though AZ refused to submit as an AQ deputy and ultimately left Khost
  • Was in Kandahar in November 2001 at the same time as a number of high level al Qaeda figures
  • Assisted “militant brothers” and families to escape from Afghanistan after the American attack on it
  • Was planning a plot (presumably against Americans) using IEDs
  • Moved from safe house to safe house in February and March 2002
  • “Harbored terrorists” at the last safe house in Faisalabad, where he was captured

In other words, the case against AZ (though a few allegations remain redacted) consists primarily of Ressam’s allegations and accusations that when the US attacked Afghanistan in retaliation for 9/11, AZ supported efforts against them. And in spite of several admissions that AZ directly resisted AQ directions, the government maintains that AZ was “affiliated” with the group. While AZ contests some of these claims entirely (such as that he funded Khaldan or was carrying out a plot), in his CSRT he agreed with the general arch of the story.

Which is where I think the government is inching inexorably closer to indefinite detention with AZ. Obviously, that’s where they’re headed, anyway, because there is no way they’re going to show the public what they’ve done to this man. But while their case against AZ still has claims to direct, aggressive action against the US, much of it related to Ressam, that case is getting more and more attenuated. And what’s left is an old mujahadeen, leftover from the Russian war because–as a Palestinian–he has nowhere to go, still supportive of force against those persecuting Muslims (he claims, though the government contests this, that he only supports targeting military targets). In his CSRT AZ unabashedly declared himself the enemy of the US military. He has undeniably supported Islamic militants. As such, he is dangerous to US forces (assuming he would be competent doing what he used to do anymore). And that, ultimately is where the government ends its discussion of how AZ is not formally a member of AQ but nevertheless a danger to the US.

In light of the nature and extent of the Government’s allegations, however, statements and evidence that suggest only that Petitioner was not formally a “member” of al-Qaida, but do not undermine any aspect of the Government’s account of Petitioner’s conduct and actions, do not materially undermine the Government’s asserted basis for detention. As such, statements and evidence of this kind do not fall within CMO § 1.0.1, nor are they likely to result in the discovery of exculpatory evidence for purposes of CMO § I.E.2. See Hamlily v. Obama, 616 F. Supp. 2d 63, 75, 76-77 (D.D.C. 2009) (Bates, 1.) (noting, upon considering the legal standard for detention, that the Court “will, by necessity, employ an approach that is more functional than formal,” and noting that “if the evidence demonstrates that an individual did not identify himself as a member, but … rendered frequent substantive assistance to al Qaeda, whether operational, financial or otherwise, then a court might conclude that he was a ‘part or the organization”).

For the same reason, any evidence that suggested only that Petitioner may have had ideological disagreements with or reservations about al-Qaida, its leaders, or its methods, but that would not undermine Respondent’s allegations about the actions Petitioner actually performed or planned, would not fall within CMO § J.D. 1, and its production would not be likely to result in the discovery of exculpatory evidence for purposes of CMO § I.E.2. In simple terms, the issue in this habeas corpus action is Petitioner’s conduct. Private or public renunciations of violence would not abrogate the Government’s authority to detain a person who has espoused violence in his actions and has demonstrated through his conduct that he poses a national security threat to the United States consistent with principles derived from the traditional law of war. [my emphasis]

As I said, there are lots of reasons the government will end up indefinitely detaining AZ (one of the things the government argued it didn’t have to release was materials from the Detainee Task Force that has made these determinations). But one of those reasons is that their argument is becoming–evolving, if you will–into an argument that AZ is dangerous, whether or not he is or ever was a member of al Qaeda.

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20 replies
  1. dude says:

    I must admit I have a hard time these days keeping up with you all as you cover the point-counter-point of these and other torture cases. My take home is broad brush. Seems to me the government is arguing they can capture, detain and torture anybody they have the slightest suspicion about—anybody who falls with the 7 Degrees of a “terrorist” actor or enterprise—and after they torture you enough to realize you are outside that range, they still don’t have to submit to a court of law or admit an error.

    • emptywheel says:

      I think it’s important to remember that AZ really is–or was, before we tortured the shit out of him–a danger to US troops. BUt it’s not clear that he was affiliated with AQ in such a way as to represent a terrorist threat here. From there you get into debates–which for Khaldan are fairly sketchy bc it didn’t ahve the same ideological markers as AQ’s camps–of whether the people trained in the camps were our enemies.

      That’s sort of where I’m going w/ the indefinite detention stuff. It is clear that the big reason they’ll use it w/AZ is bc they can’t try him, or really roll him out publicly.

      But they are relying on military law that says they can detain enemies to take them off the battlefield (which is why I bolded the language in the second block quote). That doesn’t make it right, but I do think they’re making that argument.

  2. burnt says:

    Off-topic but pertaining to previous threads that have disappeared due to EW’s prolific nature…

    I assume our Salt Pit “he who must not be named” CIA staffer is finished at least with his “he who must not be named identity.” I think I’m safe in assuming that Redress or a similar overseas group has been downloading and examining these documents just like the folks here. If Redress or their sister organizations present the evidence to British or more sympathetic Spanish authorities I’m guessing a warrant for arrest would be issued.

    Correct, or am I assuming too much here? Just curious since the docs say “he who must not be named” received at least one more overseas assignment.

  3. JasonLeopold says:

    Marcy, Given your close read of these documents and your knowledge of the case I’m wondering if you can share your thought about the claims that if the case were to move forward it would expose the intelligence failures that the government supposedly fears. Clearly, the government, while stepping away from the claims about who the Bush administration said Zubaydah was, still believes he is a threat and he was involved in terrorist planning. Do you think that’s a real concern?

    • bmaz says:

      Heh, well from my vantage point of relative ignorance, it is not a real concern. If the descriptions of Zubaydah’s condition are anywhere near correct, and there is no reason to believe they are not, he is probably not capable of being any real threat at this time, other than as a walking talking demonstration of US depravity and tactics. Now that is a threat I would imagine. As to intelligence failures, I have always maintained, and still do, that one of the irreducible root reasons the torture tapes were destroyed is that they DID NOT show any credible or usable intelligence resulting from the torture. You can bet the farm that if there was any way Cheney et. al thought that those tapes showed that torture was actually effective, they would have been running them at the local AMC Cineplex. Okay, that is a bit of an exaggeration, but you know….

      • irregulationary says:

        There was a cable ordering the field to destroy the original tapes. But at least some of the contents of these tapes must have been transmitted to HQ, stored there, and circulated for analysis and review. Is there proof that these copies were destroyed?

        In the latest batch of documents, I think there was one where someone characterized the contents of an interrogation video in terms that imply he had seen it. From the context, he seems to have viewed it here in the US.

        It might still be in a man-sized safe somewhere in the tri-state area, along with Yoo’s emails.

    • emptywheel says:

      Well, I don’t KNOW whether they believe he was involved in terrorist planning. Much of that claim relies on Ressam, who has recanted (I think it’s clear Khaldan was involved in training Ressam, but there’s zero reason to believe AZ was involved in the plotting, and he claims he cautioned Ressam against striking at the US). Then there are the efforts to tie people who went through training back to him, but a lot of it is very attenuated–two guys sating in a guest house who trained at more intense training camps?

      Then finally there’s the claims about what they were doing at the final guest house, that one guest was training the other in explosives. But this was during a time of actual military strike, remember.

      And there’s the rub, and where the govt response was interesting on another count. AZ’s lawyers asked for evidence of American support for Khaldan, and there’s a redaction that almost certainly refers to Pakistani’s ISI. AZ has said, before, that he’s being proescuted for stuff the US supported until 1994, which happens to be after AZ stopped being an active soldier and became a planner bc of the head wound.

      Yes, they think he’s dangerous and he once used to be.

      As to the intelligence failures, they have scoped this to avoid those. And a judge would let them keep it there, precisely.

  4. JasonLeopold says:

    bmaz @7: thanks for weighing in. Obviously, my question is self-serving given some statements made to me. You’re right, IMO, about the tapes I believe and do think Cheney would rent out an AMC theater to show them if there was actionable intel. But at the same time I still believe the tapes showed techniques not yet approved on paper. I’m also curious if people like Marc Thiessen are out there specifically making claims about Zubaydah that no longer hold up because of what had been asserted. I don’t want to read too much into it. But on the “worry about intel failure” I don’t want to give that any real play if, as Jeff noted in a thread the other day, it’s all spin. I think he makes a valid point.

    • bmaz says:

      But at the same time I still believe the tapes showed techniques not yet approved on paper.

      Oh, yes, there are a lot of salient factors that played into the destruction decision I assume. Seeing Cheney desperately claw for proof that his scheme really did protect us though just makes me convinced that he would take the other blowback gladly to have proof the torture was effective in producing critical intel. It is a pretty cheap theory though, because the government has effectively admitted that they did not get their information during the performance of the EITs/torture, but subsequent to said sessions.

      • timbo says:

        My hunch? There was a big honcho visiting from DC on at least one of those allegedly destroyed tapes.

    • emptywheel says:

      I think the worry about intell failure is, as I treated it as the other day, a worry akin to the fact that our intell on Iraq was all wrong.

      I do think they’re worried that if this comes out they’ll have to admit that 1) the claims they boisterously made about AZ, 2) the claims they used as a foundation for the legal sanction for torture, and 3) some of the claims they’ve made about the GWOT will all be exposed. That’s the worry.

      Because, as I pointed out here, they want to describe this as an “evolution,” but they’re basing that evolution on his diaries, which they had from the start. So if they’re claiming they’ve just decided the diaries are the only truthful way of determining who he was, then it means they ignoerd it to sustain claims that he was more than that.

      This is the Iraq war all over again for them.

      • bobschacht says:

        …a worry akin to the fact that our intell on Iraq was all wrong.

        EW, I realize that this is short-hand, but sometimes short-hand like this serves to reify Republican talking points. IIRC, there was nothing wrong with the “intell;” what was very wrong is how the intel was analyzed and portrayed. The intel was cherrypicked, the negatives and disclaimers were ignored, old evidence was preferred to new evidence, and isolated bits and fragments were “sexed up” (as our British friends have noted) by the Bush administration (e.g. the nuclear cloud imagery from Condi Rice). It was not a fault of the intel; it was a fault of the Bush Administration, which wanted to invade Iraq, which misused and abused the intel. Blaming the intel is a way the Republicans have of avoiding taking responsibility for their awful misrepresentation of the intelligence for the sake of selling the invasion of Iraq.

        Bob in AZ

        • emptywheel says:

          Fair enough. Which may distinguish it from this. I’m not entirely sure yet, but I do think everyone believed AZ was a top AQ guy when they got him.

          • bobschacht says:

            Maybe there was some self-delusion involved. They needed an AQ guy. They had to find an AQ guy. They wanted so hard to find an AQ guy that they grabbed the closest thing they could find to an AQ guy, and then focused on the positive evidence (such as it was), ignoring all the caveats and limitations and qualifiers– just like they did with the Iraq intel.

            Bob in AZ

  5. JasonLeopold says:

    By the way, U.S. District Judge John Coughenou said back in 2008 after Ressam recanted what he had said to the govt that Ressam’s “harsh treatment” by the US was partially the reason he reversed his statements. How does that then play out in AZ’s case if the govt is depending upon Ressam’s statements to justify detention (as well as other evidence)? Wouldn’t that evidence now be unreliable?

  6. jdmckay0 says:

    I’m mostly in lurker mode through all your work/posts/commenters through this “torture doc” process. My interest is to comprehend it thoroughly. Don’t really know purposes of everyone participating here and related (Leopold/Kaye etc.), but for me purpose is to solidify and detail conditions in the world/USA etc., as this whole torture saga is (again, for me) a bell weather “canary in the mine” condition: all that it encompasses… the people involved, the ferocious misrepresented advocacy and misrepresentation to the public, the corrosive affect on institutions/gov AND cause/effect response internationally… again for me, at the very least, comprehending severe moral hazards as they exist is a required known.

    With that said, your comment:

    Because, as I pointed out here, they want to describe this as an “evolution,” but they’re basing that evolution on his diaries, which they had from the start. So if they’re claiming they’ve just decided the diaries are the only truthful way of determining who he was, then it means they ignoerd it to sustain claims that he was more than that.

    I would assume that would be obvious to most who have followed your detailing of this. I find, however, that at times details tend to overwhelm the mind and I have to “step back” and take a few breaths.

    But in that statement, the process of slip-shod moment-in-time assessments used as foundation upon which to propel wide ranging action, w/subsequent slip-shod >> more actions… rinse & repeat, on and on, error upon error… mess upon mess.

    This is the “condition of things” out there. Looks to me like a tapestry, much wider and deeper, and much much more corrosive seen in it’s entirety than individual pieces and parts along the way.

    So when you say:

    This is the Iraq war all over again for them.

    … for me anyway, I am always mindful of just that. Part of the larger tapestry, exemplary of enough individual events to constitute a way of doing this on such a scale that this way sucks the vitality out of so much else, sickening people who aren’t already corrupted, so on and so forth.

    At the core, all the torture details are in most fundamental core, institutionalized dishonesty (lies). And this core was expressed through much more than 9/11 >> Iraq >> torture and that whole continuum.

    The deceptions were expressed in most every avenue of government under the Bush Years: econ & all it’s related tentacles (SEC/FED/TREASURY/FICA-HUD, etc. etc.). It was expressed through the whole Ca. Energy Crisis/Enron thing, and in fact a whole process there similar to what topic of your article here was:

    * lie about original cause (Ca. shortage of generation)
    * Stock FERC w/cronies to “toe the line” (don’t look)
    * ignored the forced/timed blackouts, ignored cutoff gas supply from Texas, not even look at generator plant shutdowns, etc. etc.
    * Squeeze and force higher gas (fuel) prices based on fruadulent shortage.

    After it was over… +/- 2 yrs after the fact, after saturating media w/original notions:
    * CA. had it coming w/”not in our backyard” mentality
    * ENRON (and related… there were many others) embodied morally grounded “free market” principles

    … and FERC’s public denial of crimes throughout, they posted on their website confirmation that everything that CA. (and anyone watching w/clear eye) could see and said from the beginning, which I summarized above. They actually posted this. They also mistakenly posted their agreement w/various energy companies involved: that in exchange for admitting and detailing planned outages, there would be no fines/prosecutions/PUBLIC DISCLOSURE.

    That template looks to me near identical to what you’ve described/summarized here.

    As public was being fed “patriotism”, “freedom fries” and “liberation” along the way, I vividly recall having conversations w/people who were looking beyond headlines and deciphering details. Among common statements I (and others… both locally, in blogs etc.) made, was observation that cumulatively… eg. everything Iraq, one mega-tax cut after another concurrent w/mega-offshoring i>everything, w/simeoultaneous pronouncement of “economy is strong”, then W’s privatize SS initiative…

    It seemed as though, w/these guys utter disdain for most anyone outside their elite circles, that they were deliberately setting out to backrupt the country… financially, morally, culturally.

    It was Blitzkrieg on every front… saturating. Far and wide media saturation, far and wide financial reorganization, far and wide military action… and all of it covered up w/cheap, meaningless jingoism and primate based metaphors.

    So now, in what could have been a major cleanup stage… this torture thing process seems just like the financial thing process:
    * crimes & lies well documented, well enough detailed for anyone taking the time to comprehend them to understand.
    * the public (gov) institutions w/power & authority to do something about ’em… each and everyone corrupted along the way, gets to a point where there is opportunity for an accountability moment, as in the DOJ AW “evolution” filing that is topic of this post.
    * whether financial, energy, or torture… as this opportunity arrives, these authorities utterly fail to do the job: we get something like what we’ve got in this DOJ “pleading”: “fuzzy math”, meaningless dismissall of self-evident facts/crimes w/massive (and I stress that word) affects… essentially, it seems to me, implicit acknowledgement from feds that all this shit is now institutionalized w/in US government, w/fall out in culture a factor not worthy of consideration.

    Not good, not good at all. The good ship USA taking on a lot of water these days, and captains are telling the passengers to be calm.

    Very useful to maintain a clear eye these days.

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