Abu Zubaydah’s Habeas Doodle

I want to make one more point about the interview Jason Leopold did with Jon Kiriakou last week. Jason asks Kiriakou about Dan Coleman’s judgment that Abu Zubaydah’s diaries reveal him to be mentally ill. Kiriakou agrees with Coleman that the diaries were written in multiple voices, but dismisses that by saying they were a creative outlet. (my transcription, starting around 24:00)

Those weren’t diaries. … They were journals and doodle books. He would write these letters to himself. They weren’t really letters to himself. It was like a work of fiction. It was just something to relieve some stress and to be creative. Now if you read this as a diary, sure you’re gonna say the guy’s schizophrenic, he has split personalities, he’s writing letters to himself. But they weren’t diaries.

[Jason asks whether Suskind’s description of the diary having three different voices is correct]

No, completely true. They were written, like I say, to himself, each personality to the other. But it was a creative outlet. It wasn’t, they weren’t the ramblings of a lunatic. It wasn’t some insane guy that couldn’t control insanve voices in his head and had to get it all down on paper. It was a creative outlet, nothing more.

For someone critical of the CIA’s waterboarding but still needing to rationalize his treatment, the claim the diaries are fictional offers a nice explanation for what–Kiriakou confirms–are multiple voices in the diary.

But that introduces a problem. As the government stated repeatedly in a filing last year, they base most of their case for holding Abu Zubaydah on his diaries.

The Government filed a factual return and supporting material in this case on April 3, 2009. The Government’s factual return included six volumes of diaries written by [Zubaydah] before his capture, in which [Zubaydah] recounts detailed information about his activities and plans. It also included a propaganda video recorded by Petitioner before his capture in which Petitioner appears on camera expressing his solidarity with Usama Bin Ladin and al-Qaida. The factual return does not rely on any statements made by Petitioner after his capture.


Additional searches also would not be likely to produce significant additional information that would demonstrate that Petitioner’s detention is unlawful, especially given that a large part ofthe Government’s case for detaining Petitioner is drawn from diaries and a propaganda video that [redacted].


The Government has satisfied the terms of CMO § I.E. 1(2) by providing Petitioner’s counsel with copies of all statements by the Petitioner that the Government relies on to justify detention: specifically, a propaganda video and certified English translations of six volumes of diaries recorded by [Zubaydah] before his capture.


Respondent acknowledged in the factual return that [Zubaydah] diariesindicate that he suffered cognitive impairment from a shrapnel injury for a number of years. Factual Return ~ 23. Respondent has also searched for information materially undermining the reliability of the diary as required by CMO § LD.l, including any information that suggests that the passages relied upon by the Government did not recount true events, were not written by Petitioner before his capture as described in the factual return, or had a meaning other than the meaning accorded to them in the factual return.

If the diaries are meant to be transparently truthful, then then multiple voices suggest some mental instability on Abu Zubaydah’s part. But if they’re meant to be fiction, then the details the government has now cited as factual themselves must be treated as fiction.

And one of the few Americans to spend significant amounts of time with Abu Zubaydah before he was tortured has now stated, on the record, that he believes the diaries–or rather, doodles–are fictional.

A pity for Kiriakou. Elsewhere in the video he complains about being called to testify in the Scooter Libby case. I’m guessing, after this exchange, he’s going to be asked to testify in Abu Zubaydah’s habeas hearings in the very near future.

45 replies
  1. phred says:

    What was it Garrett said yesterday about Kagan? Ah yes, “Backflip with One and a Half Twist”. Imagine the mental gymnastics Kiriakou must go through on a daily basis to both sleep at night and to carry on throughout his day…

    • Leen says:

      the “actionable intelligence” claim by Kirakou during that interview sure stood out. He claims that he first found out about the waterboarding/ torture in a cable that he had read about AZ cracking after being waterboarded/tortured once and that he had given them “actionable intelligence.”

  2. BoxTurtle says:

    So they basically don’t even have enough evidence to convict charge him in a show trial, unless they also stipulate he is not sane enough to be tried.

    Not a problem, we’ll just hold him without trial forever.

    Boxturtle (If it’s going to be legal, there are some folks I’D like to see locked up forever)

    • emptywheel says:

      Well, as luck would have it, SCOTUS just ruled today that the govt CAN hold people indefinitely.

      Soon to be SCOTUS justice Kagan assured the court, mind you, that it would only be used for people who were ALREADY in the criminal justice system. So I don’t think the ruling directly applies to those Obama wants to indefinitely detain. Nevertheless it’s just one small step to indefinite detention for mentally ill sex offenders and alleged terrorists who are now mentally ill, even if torture while in custody made them that way.

      • bmaz says:

        It is not what status they currently are; that is a red herring. It is the fact that the indefinite detention power is recognized as within the necessary and proper umbrella of acceptable legislation. Comstock has a lot of nasty little implications from terrorism cases to challenges of the new healthcare law. Read together with Gonzales v. Raich, it really demonstrates how far the Roberts Court will let a crazed Congress swing.

        • BoxTurtle says:

          Exactly. When it comes to locking up some sex offenders forever, there is strong support nationwide. In Ohio, they passed a law to make to make a Judge who orders a sex offender released personally liable for whatever havoc was caused by the release. Naturally, it got restrained before it ever took effect and was thrown out by every court that heard it. But it shows the depth of feeling.

          So we use sex offenders to establish that it CAN be done. Then we expand it to include other people the government feels it can never safely release. Terrorists. Serial Killers. Bloggers. Those sort of folks.

          We could just put a wall around the lower 48, call it a prison, and move the Government to Alaska.

          Boxturtle (Oh wait….)

        • Mary says:

          What is really troubling about it all is that there is a mechanism already available for those they believe would be a continuing risk/threat for sexual depravity – it’s called an involuntary commitment proceeding. But you do have to actually come up with proof to go down that road.

          BTW – I seem to recall that Obama not only thought sexual criminals who confined their sex crims to their overseas service shouldn’t be locked up forever – he opted out of locking them up at all (look forward, not backward) or even allowing the public to know who they are, as he sat on pictures and charges.

        • earlofhuntingdon says:

          The decision is narrowly about accepting that the federal government can constitutionally civilly commit – indefinitely and beyond his prison term – a mentally ill federal prisoner convicted of sexual offenses who is deemed to pose a continuing threat to society. The case overturns a lower federal appeals court ruling.

          It’s a highly emotional fact pattern. The power the Court describes as constitutional is a big step and one ripe for abuse. In essence, that gives the federal government the power to extend a prison sentence indefinitely, at least for prisoners meeting that description. What US Attorney will be the first to argue that that narrow class of prisoners should be extended to other undesirables?

          The juxtaposition of being a federal prisoner convicted of sex offenses with the state’s power to indefinitely extend incarceration of such a prisoner via federal civil commitment proceedings seems to create a Chinese wall that can readily be pierced. What are the odds that the courts will be extraordinarily and unusually resilient in opposing extensions to such powers that politically conservative and ambitious prosecutors seem likely to try to extend beyond the facts of this case?

        • bmaz says:

          The decision may be narrow on the ground you discuss (won’t be for long I predict); but it is very broad in its discussion of the ability of the necessary and proper clause to ratify all kinds of things Congress whips out. When read in conjunction with Gonzales v. Raich, it is a stunning opening and broadening that has transpired during the supposedly “conservative” Roberts Court era. Minimalism my ass.

        • earlofhuntingdon says:

          Worse yet, it’s a decision by the Court’s “liberal” wing, with Scalia and Thomas dissenting. Talk about having plunged down the rabbit hole.

          Congress has become a reactionary Colonel Blimp, dozing in the arm chair by the club’s fireside, who wakes up only to take money from others in the club and only to rant – via legislation – about the latest fright depicted by Faux News. This is a dangerous decision if it leads to a line of cases that find “constitutional” such legislative atrocities. I imagine Sen. Lieberman’s team is already ginning up a few new ones.

        • Jeff Kaye says:

          It is a truism of psychological assessment of dangerousness, that the ability to predict dangerousness is not much better than chance. By what criteria are these people removed from the equal protection of the law? This is a dark day in our nation’s history.

        • bobschacht says:

          It is not what status they currently are; that is a red herring. It is the fact that the indefinite detention power is recognized as within the necessary and proper umbrella of acceptable legislation.

          Exactly. Once the indefinite detention power is recognized, it can be applied to other situations. When you’ve got a hammer, you can find lots of things that need hammering besides nails.

          Bob in AZ

      • timbo says:

        Yuck. The government should have to do a periodic review of any such procedure for each and every individual held under such a theory. Further, the family members and any other concerned citizens should have the right to challenge such a holding by the governments or the courts. Without that, we really have little rights and everything depends on how good you are in with whatever faction holds the keys to the jails.

  3. skdadl says:

    I’m curious about that propaganda video. The government has recently conceded that AZ was never al-Qaeda, yes? So what could the video say/show that would make it criminal? Is simply expressing solidarity with UBL a crime in itself?

    I also question how anyone who isn’t both a literary analyst and a psychologist could dare to make such categorical judgements of AZ’s journals as Kiriakou does. Actually, I doubt that anyone trained in either field would do that.

    • Nell says:

      Hey, apparently mere possession of child pornography entitles the government to hold you indefinitely on the assertion of “risk of violent sexual behavior”, judicial system be damned, so presumably there’s no obstacle* to the pandering fearmongers in Congress legislating indefinite detention for possession of pro-al Qaeda propaganda.

      *other than a principled, calm, un-panicked public committed to civil liberties and the rule of law. Which would be encouraged by a president who exerted some political leadership on the question. I can dream…

      • Jesterfox says:

        That’s true. Be very, very careful downloading porn from the internet. There may be more in it than you think and you’re not the one who get’s to decide if the girl is underage.

    • JasonLeopold says:

      From what I understand, the video is AZ standing in solidarity with Bin Laden. But on a side note, AZ’s attorneys haven’t even seen the video, even though they asked for it, so it’s unclear exactly what it portrays.

  4. Nell says:

    The decision is still new, so there’s nothing yet on Balkinization or by Horton, and I haven’t gone looking for analysis and have to be offline for most of the rest of the day. Would appreciate anyone who runs into post-mortem commentary putting a link in this thread. I really did expect this to go the other way, and consider this one of the lowest moments of the last decade.

  5. R.H. Green says:

    “These weren’t diaries. They were journals and doodle books.”

    Would someone with some literary background please advise me as to the distinction between a diary and a journal? And the term “doodle book” seems deliberately pejorative and dismissive.

    • emptywheel says:

      Aha! Some expertise I can actually claim!

      Though as a (lapsed) PhD literary scholar, I can’t say that I see a meaningful difference between the two.

      • bobschacht says:

        …the distinction between a diary and a journal?

        Well, last I knew, one couldn’t get a degree in “diarism.” However, the blogs have done a lot to erase the old distinctions. We call what you write here at the Wheel House “diaries,” but the award you got was for “journalism.” So you, of all people here, oughta know if there is a distinction.

        Elsewhere, Wiki.answers offers this quickie:

        The difference between a diary and a journal is that a journal helps you keep track of stuff and a diary is your personal feelings or personal life.

        QuinnCreative offers this distinction:

        It’s a question I get asked all the time. “What’s the difference between a journal and a diary? A diary is a report of what happened during the day—where you ate, who you met, the details leading up to the kerfluffle in the office, and who took whose side. It’s a bit like a newspaper about you.

        A journal is completely different. A journal is about examining your life. It’s a GPS system for your spirit. “I’ve made this mistake before. . . and I always make it when I rushed for time and feel panicky. But I feel panicky because I know I’m headed for the same mistake.” Journals lead to insight, growth, and sometimes, achieving a goal….

        IOW, diaries are more about the “what,” whereas journals, from this perspective, are more about the “why.” I don’t think that holds up here.

        Heather Goldsmith offers this insight– and reference– on BlissTree:

        This question comes up every now and then, but having begun to read Leaving a Trace: On Keeping a Journal, by Alexandra Johnson, again, I see she also addresses this question in her first chapter. You can read how Johnson answers in the first chapter of her book here.

        From my own research it seems both words, at their origin; mean simply a written daily record. So, in my opinion I feel it’s open for the user to decide. I like the way journal sounds, but it doesn’t bother me if people ask if I keep a diary. I’d be happy to call what I do either, because to me it’s more about what I actually write than what I call it.

        In other words, its a distinction without an agreed difference.

        Bob in AZ

    • skdadl says:

      I have a literary background, and the only way I can make sense of Kiriakou is to say that he is talking to himself, except (as we all know) he isn’t really talking to himself. Or as EW (who also has a literary background) says, he’s rationalizing.

      O/T but related: Carol Rosenberg’s latest overview of what happened at GTMO during Khadr’s pre-trial hearing.

    • earlofhuntingdon says:

      The distinction does have legal ramifications. If the court accepts the government’s claims that these writings accurately portray his words and deeds, the journals might have probative value as evidence of his deeds or specific intent.

      The conflicting characterization, that they are whimsical, ranting, escapist or creative outlets for a tortured soul, would give them probative value only as to his state of mind, not as to things he actually did or intended to do.

      • emptywheel says:

        One of the most useful books for my grad work was a book that traced the beginning of the category “novel” to the period when newspapers had to distinguish between transparent sincere speech and non-transparent “fictional” speech.

        So I’ll enjoy seeing how the govt tries to dismiss Kiriakou’s claims…

        • klynn says:

          Where would a “stream of consciousness” journal for writer’s block, emotional venting and creative idea generation fall in this spectrum? Doodles? Crazy rants? Evil plots?

          How can one separate the diaries from the person and make an assessment of their intent?

      • R.H. Green says:

        Ah. A legal distinction, not a literary one; I like it. Yet, to have probative value, these writings have to be evaluated in their contexts, as you aptly illustrate. What I don’t see is how distinguishing between diaries and journals does that.

        Having reread the post 3 times now I’m confused as to the purpose of this “distinction”. Will have to think later. Thanks for the thought.

  6. R.H. Green says:

    You were the one I had in mind. And I suspected that is what you would say. That, and my remark about doodles, taken together, suggest some sort of disinformation effort.

  7. Jeff Kaye says:

    Those weren’t diaries. … They were journals and doodle books. He would write these letters to himself. They weren’t really letters to himself. It was like a work of fiction.

    Well, were they letters or not, Jon?

    The quick switch (they were, they weren’t) is highly suggestive of lying and the use of a cover story. The preponderance of the reports from third parties suggest that AZ has a mental disorder. The use of different personalities would suggest that disorder could be Dissociated Identity Disorder (DID).

    [I just deleted a mass of text too long for a comment. I’ll make it into a diary over at The Seminal, re my surmises re the possibilities that AZ has/had DID, and what that might mean, as well as comparing this scenario to others proposed by different government entities or agents.]

    Thanks for, as always, being so quick and alert to the central issues, EW. — As for that SCOTUS ruling, how far must we march until the bells of totalitarianism toll in our ears?

  8. earlofhuntingdon says:

    A couple of quick distinctions. The decision cites as historical precedents Congressional rules for treatment of prisoners and the mentally ill in Washington, DC. DC is a federal district or territory under Congress’ exclusive jurisdiction. No federalism issues arise because Congress is the district’s ultimate governing body.

    The decision makes the argument that it is a simple extension of existing civil commitment regimes. In reality, it is using civil commitment proceedings to extend jurisdiction to criminally punish someone. As Mary (@11) in the previous thread noted, the better analogy would be that it is an extension of involuntary commitment proceedings, which involve different procedures.

    Citizens concerned about unnecessary limits being placed on the constitutional civil rights have cause to be worried when the two dissenters in this case are Justices Thomas and Scalia.

    The issue to be concerned about is not the highly emotional one of detaining sexually violent federal prisoners beyond the term of their stated sentences for criminal misconduct. There is cause for concern there, but few are affected.

    Of greater concern, because it could affect thousands more, is the expansion of the Necessary and Proper Clause to permit the federal government to keep American citizens it identifies as undesirable locked up in prison indefinitely on evidence that does not meet the criminal standard of “beyond a reasonable doubt”.

    • emptywheel says:

      Citizens concerned about unnecessary limits being placed on the constitutional civil rights have cause to be worried when the two dissenters in this case are Justices Thomas and Scalia.

      Not least because they were contesting whether the federal government had this authority in the domestic sphere. Neither one of them would contest it, I think, in the national security sphere, not even as broadly defined as that has become. In other words, you could presumably count on them voting in favor for a law targeted in ways that would be even more troublesome to us.

  9. JasonLeopold says:

    If the diaries are meant to be transparently truthful, then then multiple voices suggest some mental instability on Abu Zubaydah’s part. But if they’re meant to be fiction, then the details the government has now cited as factual themselves must be treated as fiction.

    That really summed it up for me. Thank you again, Marcy, for connecting the dots and putting together what I think is a powerful argument. You totally pushed the story forward again.

    One minor thing, Kiriakou spells his first name “John.”

  10. hcgorman says:

    I love the fact that the “diaries” are now being described as “a creative outlet” as opposed to anything resembling a description of actual events. The Government entered the “diaries” in one of my gitmo cases (for reasons I still do not understand) and perhaps even better than a deposition of Kiriakou would be a few fun requests to admit: first setting up the expertise of Jon (aka John) Kiriakou and then making the government admit his latest conclusions…
    oh yeah, but we aren’t allowed to file requests to admit in Gitmo cases…
    or for that matter take depositions.
    oh well, it was fun for a minute.

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