GUANTANAMO BAY NAVAL BASE, Cuba _ The judge in the Sept. 11 war crimes case has agreed to hear testimony next week from forever prisoner Abu Zubaydah, the guinea pig in the CIA's post-9/11 interrogation program who has never been charged with a crime and has never been allowed to speak in public.
At issue is a claim by accused 9/11 plot deputy Ramzi bin al Shibh that someone is intentionally disrupting his sleep at the clandestine Camp 7 prison. Bin al Shibh, 44, blames the CIA or troops doing its bidding for noises and vibrations that interfere with his ability to prepare for his death penalty trial, which has no start date.
Defense lawyers say Zubaydah is being called as a trusted Camp 7 block leader to describe his interactions with and on behalf of bin al Shibh. Zubaydah, 46, whose real name is Zayn al Abideen al Hussein, was a prized early capture in the war on terror and was the first captive to be waterboarded, 83 times in a single month, among other experimental CIA "enhanced interrogation techniques."
Bin al Shibh says the CIA has been messing with his mind since his Sept. 11, 2002, capture in Pakistan, a complaint prosecutors dismiss.
But psychologist James Mitchell, an architect of the "black site" interrogation program, wrote in his recent memoirs that the vibrations were real in at least one black site. "I thought about giving him a special tinfoil hat to make it all go away," he wrote in his "Enhanced Interrogation, Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America."
Then he and his CIA contract partner Bruce Jessen each lay down on bin al Shibh's cell bed.
"The vibration was there, and it was not something you could ignore. It made me feel like the room was spinning," Mitchell wrote. "I could imagine that after a while it might make a person nauseous. It would certainly keep me awake, but oddly enough, you couldn't feel it anyplace else in the cell."
Mitchell and Jessen were CIA contractors who designed and implemented some interrogation tactics used on "high-value" captives _ waterboarding them, slamming them into walls, depriving them of sleep, withholding food, manipulating their diet, shackling them in stress positions, forcing them to be nude, hooded or listening to loud noises as well as confining them to a dark coffin-like box.
But Mitchell in his book blamed the vibrating bed at the black site on "an engineering problem localized to that cell." He wrote that he couldn't explain more for security reasons about "the cell or how it was affixed inside the building." But, he said, the vibrations "happened only when a large piece of equipment situated near by was running."
Last year, before Mitchell's book came out, bin al Shibh testified that it happens at Guantanamo, too.
In June, Zubaydah made it to the courtroom door to testify for bin al Shibh. However, the Palestinian's military attorney, Navy Cmdr. Patrick Flor, opposed his testimony without immunity. Lawyers then twice applied for testimonial immunity _ both requests were denied _ and Judge James Pohl, an Army colonel, agreed at a chambers conference Saturday to hear from Zubaydah next week, according to several attorneys who were there.
Monday was the opening of a two-week hearing in the Sept. 11 case, and lawyers dealt with pretrial issues:
_An attorney for alleged 9/11 plotter Ammar al Baluchi asked the judge for witnesses in a bid to strip him of the label "high-value detainee," or HVD. Alka Pradhan called the term a "highly prejudicial holdover from their time in CIA custody when all tortured CIA detainees were given that label." To her surprise, she said, a prosecution reply indicated the U.S. military conducted its own review and kept the label. She said the title was used to justify "draconian conditions that don't allow the accused to have a fair trial."
Pohl sounded skeptical about his authority to do it, and what impact such a decision would make but did not rule on a request to call witnesses that included former Secretary of Defense Donald Rumsfeld. Prosecutor Robert Swann declared himself disinterested in the issue, and asked the judge to summarily reject the request. "We are prosecuting a mass murder and that is where we are laser focused," he said.
_The judge discussed the need to delay the next hearings by two days for an unspecified project involving the crude war court compound, Camp Justice, on the weekend of May 6-7. It's known as the Expeditionary Legal Complex, or ELC. Pohl sought reassurances from prosecutors that the work "on the ELC area and the fence around it" wasn't like a kitchen project that stretched past its completion date.
Base spokeswoman Julie Ann Ripley declined to discuss what she described as "a routine operation," invoking "security reasons." In court, prosecutors said the base may be so filled up with operation participants that defense lawyers who typically come early to consult the alleged terrorists will have not access to their offices or safes, and may have to sleep across the bay, something they rarely do.
_A defense attorney who was on the case since before the May 2012 arraignment, Michael Schwartz, quit the defense team of an alleged plot deputy. Walid bin Attash had been trying to fire Schwartz for about a year, since soon after the defense attorney resigned his commission as an Air Force major to remain on the case. Had Schwartz not quit the Air Force he would have been reassigned from the case in a routine rotation.
Bin Attash has likewise sought to fire his death penalty defender, Cheryl Bormann,. But Pohl consistently refused Bin Attash's request to fire either of them. Bormann was back in court Monday in her typical, severe Saudi-style black headscarf and gown, an abaya, after missing the January session because of a fall that broke her arm in two places, requiring emergency surgery.
