Waterboarded Gitmo Detainee Lawyers Up

WASHINGTON, March 20, 2008 — -- Six years after he was captured by U.S. forces in Pakistan, Abu Zubaydah, an accused al Qaeda operative and one of three men the government has admitted exposing to the extreme interrogation technique called waterboarding, is finally being represented by lawyers of his choice.

On Wednesday, the CIA cleared for release a brief filed on his behalf in the U.S. Court of Appeals for the District of Columbia.

The brief is based almost entirely on 35 press reports, relying heavily on reporting done by ABC News' Investigative Unit featuring an interview with John Kiriakou, formerly of the CIA.

George Brent Mickum IV and Joseph Margulies, Zubaydah's lawyers, were retained last month.

"We are the only lawyers he has ever seen and he has retained us to work on his behalf," Mickum said.

Zubaydah is appealing his designation as an "enemy combatant" and asking that his case be heard in federal court. The brief was filed on Feb. 21, 2008, and was released Wednesday.

In briefs, the lawyers write that in March 2002, their client was living in Pakistan and that he was "known in his community and widely believed to be mentally challenged."

They say he is not "and never has been an enemy alien, lawful or unlawful belligerent, or combatant of any kind."

President Bush has publicly accused Zubaydah of being a "senior terrorist leader."

"Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country," Bush said in 2006.

"Zubaydah told us that al Qaeda operatives were planning to launch an attack in the United States, and provided physical descriptions of the operatives and information on their general location," Bush said in the same speech. "Based on the information he provided, the operatives were detained -- one while traveling to the United States."

Currently being held in Guantanamo Bay, Cuba, Zubaydah has been on a long odyssey since his capture in 2002.

In legal papers, his lawyers claim that after he was nearly mortally wounded by Pakistani and U.S. forces, he became an unwilling participant in the then-secret CIA program in prisons in such places as Thailand, Poland and North Africa.

His capture caused government officials at the highest level to meet at the White House to develop guidelines for his interrogation.

John Yoo, then a top Justice Department official responsible for helping to develop the department's legal arguments for the interrogation practices used in the war on terror, was summoned to the White House because the CIA was searching for guidelines.

In August 2002, Yoo wrote a memo that defined torture narrowly.  Five years later in congressional testimony, John Rizzo, a top lawyer for the CIA, said he had requested a second memo that would provide more specific guidelines on interrogation practices. Rizzo testified that the CIA program was humane.

Meanwhile, in an overseas location, the CIA videotaped Zubaydah's interrogation, which included exposing him to waterboarding -- simulated drowning -- as a method of interrogation.

In 2005, the CIA destroyed the videotapes, an action currently under investigation by a U.S. attorney at the Department of Justice.

Internal watchdog offices in the Justice Department are also investigating whether administration lawyers violated professional standards when they devised the legal standards that applied to detainees such as Zubaydah.

While the government has spoken out regarding Zubaydah, his lawyers are barred by a protective order from commenting specifically about his case and may only refer generally to his detainment.

"The government is allowed to admit that our client was waterboarded, but we're unable to say a word publicly," Mickum told ABC News.

The Department of Defense has released recordings and transcripts of Zubaydah's appearance before the Combatant Status Review Tribunals (CSRT) at Guantanamo.  Zubaydah speaks in heavily accented English and condemns the military tribunals.

"I'm not a member of al Qaeda," he asserts.

His new brief elaborates: "The CSRT Procedures fail to meet the most basic and fundamental level of due process and fairness required."

The brief goes on to say that the government "controls every aspect of the CSRT process -- there is no meaningful check or procedural safeguard to ensure the protection of the prisoner's rights."

Zubaydah seeks release from "unlawful custody," and asks that the government ceases "all interrogations" while the litigation is pending.

Zubaydah's lawyers are planning an extended visit to Guantanamo at the end of March.