U.S. District Judge Emmet Sullivan also ordered the Pentagon to release the hundreds of records detailing the 20 days of "aggressive" enhanced interrogation techniques that Abu Zubaydah endured at various U.S. Central Intelligence Agency black sites, as a replacement for the lost footage.
"Given that the video 'picture' no longer exists, the Court is persuaded that the contemporaneous agency records are a properly tailored option — combined with the additional remedy detailed below precluding Respondent from rebutting Petitioner's own testimony about what was depicted on the tapes — for providing Petitioner with 'documentary evidence' to present to the Court 'about the content of the tapes,'" Judge Sullivan's order said.
The sanctions adopted by Judge Sullivan largely align with the proposed remedy offered by the U.S. Department of Defense, which hadn't denied that the CIA had deliberately destroyed dozens of videotapes in 2005 capturing its interrogation of Zubaydah and another individual, despite requests from lawmakers and the White House to preserve evidence concerning a CIA program to detain and interrogate terrorism suspects abroad.
Solomon Shinerock, counsel for Zubaydah, found that the sanctions order left a "lot to be desired" in light of that history.
"I can only imagine that if a private litigant in a civil litigation affirmatively destroyed videotape evidence that it was directed to preserve, there would be more sanctions imposed than essentially asking that litigant if they were willing to produce any documents instead," Shinerock said.
Shinerock further noted that the sanctions motion has been pending since 2009.
"That's a really long runway, and I think it reflects a lack of willingness to treat this particular litigant in the way that other federal litigants are treated," he said. "I think a lot of that relates to the allegations by the government, which we intend to challenge, regarding Abu Zudayah's past."
The first person to be detained under the CIA's overseas detentino program, Zubaydah was waterboarded 83 times, pressed into various stress positions and confined into a coffin-sized box over a 20-day period in 2002, according to the decision.
Zubaydah has been in U.S. custody ever since, with the contents of the recordings featuring heavily in his 15-year-old case seeking his release. The footage could have supported his case, and the court needed to remedy their loss by adopting 9 inferences against the DOD for the case's duration, including the inference that Zubaydah was never a member of Al-Qaeda and had no knowledge of any post-9/11 terrorist attack on the U.S., Zubaydah argued.
But Judge Sullivan rejected Zubaydah's offered remedy, agreeing with the DOD that it was overbroad. Many of those proposed inferences are aimed at the heart of the case, whether the U.S. has lawfully detained Zubaydah for terrorist activities, the judge said.
If adopted, those inferences "would factually and legally resolve key issues before the Court has had the opportunity to conduct an evidentiary hearing and would furthermore preclude Respondent from presenting evidence outside of the destroyed interrogation tapes about Petitioner's ties to and support of al-Qaeda or other terrorist organizations," Judge Sullivan said.
The judge found the DOD's proposed remedy more appropriate, saying it would see the release of 580-documents, including classified communications relayed to CIA Headquarters concurrently to Zubaydah's recorded interrogations, which include descriptions of the torture methods he underwent, his treatment and medical care, and statements made during the sessions.
The DOD didn't respond to a Wednesday request for comment.
Zubaydah is represented by Solomon B. Shinerock, Elizabeth M. Velez, Eric Leslie Lewis and Adam S. Kaufmann of Lewis Baach Kaufmann Middlemiss PLLC, Joseph Margulies of the Cornell University School of Law and Charles R. Church of The Law Office of Charles R. Church LLC.
The DOD is represented by Andrew Warden, Ronald Wiltsie and Jason Lynch of the U.S. Department of Justice's Civil Division.
The case is Una Muhammad Husayn v. Gates, case number 1:08-cv-01360, in the U.S. District Court for the District of Columbia.
--Editing by Emily Kokoll.
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