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Biden admin allowing Guantanamo detainee to testify against CIA in foreign court

Abu Zubaydah. (Department of Defense photo)
October 21, 2021

President Joe Biden’s administration is allowing Abu Zubaydah, a Guantanamo Bay detainee, to testify in a Polish court about his treatment at the hands of the CIA while he was being kept at an alleged agency black site located in the country, new reports revealed this week.

Zubaydah, who is an alleged close ally of deceased Al Qaeda leader Osama bin Laden, was captured in Pakistan in 2002 and subsequently held at an alleged secret CIA site in Poland. The Washington Times reported Zubaydah filed a criminal complaint in Poland, accusing the CIA of waterboarding him, depriving him of sleep and forcing him into tight spaces while at a secret detention facility before he was transferred to Guantanamo Bay in Cuba.

Zubaydah’s lawyers have said he was on the brink of death as a result of the torture he underwent. They have also argued Zubaydah was not a top Al Qaeda figure, as the government has claimed.

In an October 15 letter to the U.S. Supreme Court, Acting U.S. Solicitor General Brian H. Fletcher — the fourth highest-ranking official in the Department of Justice — wrote that the U.S. government “would permit
Abu Zubaydah, upon his request, to send a declaration that could then be transmitted to the Polish investigation.”

While Fletcher’s letter did signify the U.S. government’s permission for Zubaydah to send a declaration to Polish prosecutors, he also noted the contents of Zubaydah’s declaration could be subject to redactions.

“Like other communications from similarly situated detainees, such a declaration would be subject to a review that could result in the redaction of information that could prejudice the security interests of the United States,” Fletcher wrote.

Fletcher said, “The scope of the necessary redactions would thus depend on the content of the declaration.”

Zubaydah’s criminal complaint particularly alleges wrongdoing at the hands of two former contractors for the CIA.

Zubaydah’s lawyer previously sought discovery against the former contractors in a federal case, but that prompted the U.S. government to intervene and assert its “state secrets privilege.”

The Washington Times reported that in an appeal the U.S. Circuit Court of Appeals for the 9th Circuit sided with Zubaydah and rejected the privilege claim. The Trump administration had asked the Supreme Court to review the 9th Circuit court’s decision and Biden’s Justice Department continued to argue against the court.

During October 6 oral arguments before the Supreme Court, justices including Justice Stephen Breyer and Neil Gorsuch questioned the government as to the extent to which it could block Zubaydah from testifying in the Polish court case.

“Why not make the witness available?” Justice Neil Gorsuch asked, CBS News reported. “What is the government’s objection to the witness testifying to his own treatment and not requiring any admission from the government of any kind?”

Fletcher wrote that his October 15 letter is a direct response to the questions raised by the justices.

Fletcher’s letter is seen as something of a reversal in the Biden administration’s stance on Zubaydah’s case.

“I can’t remember the last time the government changed positions in a
national security case based on questions from the bench,” Josh Blackman, a professor at South Texas College of Law, told the Washington Times. “Now, the Court will likely remand the issue to the lower court to consider the government‘s new position. And the Justices can avoid ruling on this difficult question of state secret privilege.”