Gitmo Charges: Why Now? And What About the Torture?

Finally, then, nearly six and a half years after the 9/11 attacks, the U.S. government has charged six Guantánamo detainees with, among other things, terrorism, murder in violation of the law of war, attacking civilians, and conspiracy – adding, for good measure, that it will seek the death penalty in the case of any convictions.

The six men are: Khalid Sheikh Mohammed (KSM), who confessed in his tribunal at Guantánamo last March that he was "responsible for the 9/11 operation, from A to Z"; Ramzi bin al-Shibh, reportedly a friend of the 9/11 hijackers, who helped coordinate the plan with KSM after he was unable to enter the United States to train as a pilot for the 9/11 operation, as he originally planned; Mustafa al-Hawsawi and Ali Abdul Aziz Ali (aka Ammar al-Baluchi), who are accused of helping to provide the hijackers with money and other items; Walid bin Attash, who is accused of selecting and training some of the hijackers; and, rather less spectacularly, Mohammed al-Qahtani, who is accused of trying and failing to enter the United States in August 2001 to become the 20th hijacker on 9/11.

The announcement of the charges is immensely significant. In one fell swoop, many of the complaints about Guantánamo appear to have been swept aside. These, chiefly, have centered on well-founded claims that the prison has mostly held innocent men or low-level Taliban foot soldiers. Of the 749 detainees who were held at the prison during its first two and half years of existence, according to dozens of high-level military and intelligence sources interviewed by the New York Times in June 2004, none "ranked as leaders or senior operatives of al-Qaeda," and "only a relative handful – some put the number at about a dozen, others more than two dozen – were sworn Qaeda members or other militants able to elucidate the organization's inner workings."

Ten more reputedly significant detainees arrived at Guantánamo from secret CIA prisons in September 2004, and another 14 "high-value" detainees, including five of the men mentioned above, arrived in September 2006, but these arrivals – which, in themselves, revealed the existence of secret prisons that were even less accountable than Guantánamo – were hardly enough to convince any except the administration's most fervent and unquestioning supporters that the whole extralegal experiment was worthwhile.

In charging detainees for their alleged connections with the 9/11 attacks, the administration has also managed to divert attention away from the stumbling progress of the trial system which will be used to prosecute the six men. The military commissions, dreamt up by Vice President Dick Cheney and his advisers in November 2001, judged illegal by the Supreme Court in June 2006 and reinstated later that year in the Military Commissions Act (MCA), have struggled repeatedly to establish their legitimacy.

Described by former military defense lawyer Lt. Cmdr. Charles Swift as fatally flawed because they included "no right to habeas corpus, no attorney-client privilege, forced guilty pleas for charges never made public, secret and coerced evidence, juries and presiding officers picked by executive fiat, [and] clients represented even if they declined legal counsel," the commission process was supposedly cleaned up during the passage of the MCA, so that prosecutors are prevented from using secret evidence or evidence obtained through torture (although the use of information obtained through "controversial forms of coercion" – torture, perhaps, by any other name – remains at the discretion of the government-appointed military judge), but they have failed, to date, to secure a single significant victory.

Their only alleged success – in the case of David Hicks, who accepted a plea bargain in March last year, admitting that he provided "material support for terrorism" and dropping well-documented claims that he was tortured by U.S. forces in exchange for a nine-month sentence served in Australia – was undermined last fall by Col. Morris Davis, the commissions' former chief prosecutor, who resigned his post and then complained that the entire system was compromised by political interference. Currently, the commissions are bogged down in pre-trial hearings for two detainees – alleged "child soldier" Omar Khadr, and Salim Hamdan, a driver for Osama bin Laden – whose cases have done nothing to assuage widespread concerns that the whole process remains both unjust and futile.

Now, however, with the focus fixed firmly on 9/11 – the event that, all along, was supposed to have justified the invasion of Afghanistan, as well as the detention without charge or trial of nearly 800 detainees in Guantánamo and of hundreds more in Afghanistan and secret prisons elsewhere – the administration must be hoping that the global response to the news will wipe away the last six years of injustice and direct all attention exclusively on that dreadful day in September 2001 when over 3,000 people from 40 different countries died in the attacks on the World Trade Center and the Pentagon and in the wreckage of a plane in Pennsylvania.

In spite of its laudable focus, however, the announcement still raises more questions than it answers. It is surely no coincidence, for example, that it came just six days after Michael Hayden, the director of the CIA, admitted that three of the "high-value" detainees – including KSM – had been subjected to waterboarding, a long-reviled torture technique that simulates drowning.

Ever since its notorious "Torture Memo" of August 2002, the administration has attempted to insist that "enhanced interrogations" counted as torture only if the pain endured was "of an intensity akin to that which accompanies serious physical injury, such as organ failure, impairment of bodily function, or even death," but these are, in the end, merely feeble attempts at semantic window-dressing. Under its international obligations – as a signatory to the UN Convention Against Torture, for example, which makes it a crime for American officials to torture people outside the United States – the administration is prohibited from practicing torture, and waterboarding is clearly torture.

The second problem is with the charges themselves. Noticeably, both KSM and Ramzi bin al-Shibh bragged about their involvement with 9/11 before they were captured. In April 2002, al-Jazeera journalist Yosri Fouda was granted an exclusive interview with the two men, and his report featured the following passage:

"'They say that you are terrorists,' I surprised myself by blurting out. A serene Ramzi just offered an inviting smile. Mohammed answered: 'They are right. That is what we do for a living.'

"Summoning every thread of experience and courage, I looked Mohammed in the eye and asked: 'Did you do it?' The reference to September 11 was implicit. Mohammed responded with little fanfare: 'I am the head of the al-Qaeda military committee,' he began, 'and Ramzi is the coordinator of the Holy Tuesday operation. And yes, we did it.'"

There, however, the open admissions come abruptly to an end, with the exception of the charges against Mohammed al-Qahtani, which I discuss below, and, presumably, Walid bin Attash's seemingly unprompted confession, in his tribunal at Guantánamo last year, when he said that he was the link between Osama bin Laden and the Nairobi cell during the African embassy bombings in 1998. He also admitted that he had played a major part in the bombing of the USS Cole in 2000, explaining that he "put together the plan for the operation for a year and a half," and that he bought the explosives and the boat and recruited the bombers.

For the rest – the charges against Mustafa al-Hawsawi and Ali Abdul Aziz Ali, the remaining charges against Ramzi bin al-Shibh, and the vast shopping list of plots that KSM admitted to involvement with during his tribunal – all came about during the three to four years that these men spent in a succession of secret prisons run by the CIA. Moreover, it was in these prisons that, in contrast to Michael Hayden's claim that, of the six, only KSM was waterboarded, CIA operatives who spoke to ABC News in November 2005 said that 12 "high-value" detainees in total were subjected to an array of "enhanced interrogation techniques." These included not only waterboarding, but also "long-time standing," in which prisoners "are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours," and "the cold cell," in which the prisoner "is left to stand naked in a cell kept near 50 degrees" and is "doused with cold water" throughout the whole period.

These statements make it clear that torture – which, lest we forget, is condemned not just because it is morally repugnant, but also because the confessions it produces are unreliable – contaminates almost the whole basis of yesterday's charges, and casts doubt on at least some of the government's assertions. In his tribunal at Guantánamo, for example, Mustafa al-Hawsawi admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, but denied that he was a member of al-Qaeda. Ali Abdul Aziz Ali was even more adamant that he had no involvement with terrorism. Although he admitted transferring money on behalf of some of the 9/11 hijackers, he insisted that he had no knowledge of either 9/11 or al-Qaeda and was a legitimate businessman who regularly transferred money to Arabs in the United States, without knowing what it would be used for.

Yesterday's announcement also raises additional questions. Was Michael Hayden's admission meant to pave the way for the charges just announced, or did it cause such a barrage of outrage – including claims that, now the administration has openly admitted waterboarding, it can itself be charged with war crimes – that the decision to start the prosecution process was rushed through to justify the torture?

Also worth asking is why two of three detainees whom Michael Hayden admitted were waterboarded – Abu Zubaydah and Abdul Rahim al-Nashiri – were not charged. It is surely not a coincidence that, in their tribunals last year, both men denied the allegations against them and stated that they had only admitted to claims that they were involved with Osama bin Laden and al-Qaeda because they were tortured.

For all this, however, it is Mohammed al-Qahtani's inclusion on the list that remains the least explicable. Reportedly the intended 20th hijacker on 9/11, he appears to this day to be little more than that, a would-be jihadist, recruited to provide the "muscle" to subdue the passengers, who failed in his mission when he was refused entry to the United States in August 2001, having flown to Orlando to meet up with lead hijacker Mohammed Atta. This, of course, is disgusting enough in itself, and deserving of punishment if proved in a court of law, but as he did not actually take part in 9/11 or contribute to it in any meaningful way, it's odd that he too has been charged, when the evidence of his torture at Guantánamo – rather than in a secret prison run by the CIA – is so readily available and so remorselessly revealing of the excesses of the administration's torture policy at Guantánamo.

As Time magazine revealed in an interrogation log (.pdf) made available in 2005, Qahtani was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation (including being smeared with fake menstrual blood by a female interrogator), threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a "fake rendition," in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explain in my book The Guantánamo Files, "The sessions were so intense that the interrogators worried that the cumulative lack of sleep and constant interrogation posed a risk to his health. Medical staff checked his health frequently – sometimes as often as three times a day – and on one occasion, in early December, the punishing routine was suspended for a day when, as a result of refusing to drink, he became seriously dehydrated and his heart rate dropped to 35 beats a minute. While a doctor came to see him in the booth, however, loud music was played to prevent him from sleeping."

Even more significant, perhaps, is what Qahtani's torture reveals about how the whole process that led to these proposed trials could have, and should have been different. It was the interrogation of Qahtani that finally prompted the FBI – which was already alarmed at the random, self-defeating violence at Guantánamo perpetrated by other agencies – to make an official complaint to the Pentagon in June 2004, highlighting abuses witnessed by its agents and singling out Qahtani's treatment for particular criticism. The letter stated that Qahtani was "subjected to intense isolation for over three months" and began "evidencing behavior consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end)."

Reports of Qahtani's treatment also provoked a heroic attempt by Alberto J. Mora, the director of the Naval Criminal Investigative Service (NCIS) to persuade the Pentagon to call off the use of "enhanced interrogation." Mora was ultimately unsuccessful – Rumsfeld temporarily dropped the use of the techniques but secretly mandated a new panel of pliant experts to re-approve them in an essentially undiluted form – but the complaints of both the FBI and the NCIS indicate how the interrogation process should have proceeded.

In fact, a senior FBI interrogator had worked on Qahtani before the CIA took over, who "slowly built a rapport" with him, "approaching him with respect and restraint," according to officials who spoke to the New York Times. "He prays with them, he has tea with them, and it works," the officials explained. Opening up to this skilled, and by now resolutely old-fashioned technique, Qahtani started to yield information, revealing that he had attended an important al-Qaeda meeting with two of the 9/11 hijackers in Malaysia in 2000, but officials in the Pentagon were frustrated that he failed to reveal anything else about al-Qaeda's plans.

The truth, perhaps, is that he had no further information to give, and that, after failing to complete his mission, and with no inside knowledge because the "muscle" hijackers were not informed of the plans in detail, he returned to Afghanistan, where, after joining the Taliban in their resistance to the U.S.-led invasion, he was caught crossing the Pakistani border in December 2001.

Dan Coleman, one of these old-school FBI interrogators, who retired from the agency in 2004, knows exactly where the faults lie with the Pentagon-led policy of combating terror with torture. As a top-level interrogator, who interrogated many of the terrorists captured before 9/11 (and convicted in the U.S. courts) without resorting to "enhanced interrogation," Coleman remains fundamentally opposed to torture, because it is unreliable and it corrupts those who undertake it.

In 2006, he told Jane Mayer of the New Yorker that "people don't do anything unless they're rewarded." He explained that if the FBI had beaten confessions out of suspects with what he called "all that alpha-male sh*t," it would have been self-defeating. "Brutality may yield a timely scrap of information," he conceded. "But in the longer fight against terrorism," as Mayer described it, "such an approach is 'completely insufficient.'" Coleman added, "You need to talk to people for weeks. Years." In 2005, he delivered an even more devastating verdict, which explains, succinctly, why the administration now faces such an uphill struggle to regain the moral high ground. "Brutalization doesn't work," he said. "We know that. Besides, you lose your soul."

Click here for access to the tribunal transcripts of the "high-value" detainees.