The military commissions, which were last used on Nazi saboteurs in World War II, were brought back from the dead by Vice President Dick Cheney almost ten years ago — in an alarming military order dated November 13, 2001 — as a means of swiftly trying and executing terror suspects seized in the “war on terror” without the impediment of due process or a ban on evidence derived through the use of torture.

Ruled illegal by the Supreme Court in June 2006, the commissions were then resuscitated by Congress, and although Barack Obama froze them temporarily when he took office, he soon thawed them out again, even though the wisest of his advisors recommended him not to, as the primary charges in the commissions — conspiracy and providing material support to terrorism, for example — were appropriate crimes to be tried in federal courts, but had only been invented as war crimes by Congress.

Reviving the commissions left President Obama with a two-tier system of justice for those held at Guantánamo, with both federal court trials and military commissions on the table, and it led him into unseen difficulties, when, after he announced in November 2009 that Khalid Sheikh Mohammed and four other “high-value detainees” in Guantánamo would face a federal court trial in New York for their involvement in the 9/11 attacks, those who opposed his plan struck back.

Because of President Obama’s refusal to consign the commissions to a legal grave, his critics could point to them as a viable alternative to a federal court trial, especially as the administration, when announcing the 9/11 trial, had also announced that five other Guantánamo prisoners would be tried by military commission.

As a result, Obama’s critics in Congress ultimately succeeded in passing legislation preventing any Guantánamo prisoners from being brought to the US mainland for any reason (even to to face a federal court trial), and have now embarked on their most audacious and inappropriate measure yet — threatening to pass legislation making it mandatory for any foreign terror suspect to be held in military custody rather than being tried in federal court for the crime of terrorism.

Ten years after 9 /11, it is truly depressing that the misguided “war on terror” not only lives on, but may get a new lease of life, and at Guantánamo, where part of this struggle to keep Dick Cheney’s malevolent dreams alive is particularly focused, the authorities are gearing up for new activity.

Last week, in an attempt to market what the Miami Herald described as “a new era of transparency” at Guantánamo, Army Brig. Gen. Mark Martins, the new Chief Prosecutor of the military commissions, told the Weekly Standard that the commissions will “feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States.” The Herald added that the transmissions “won’t be live because the feeds will be broadcast on a ’40-second delay to ensure safeguarding of national security information.’”

In the Miami Herald article, Carol Rosenberg, who has been following the military commissions since they first began, called the proposed new system “vastly different” from what has been in place to date, whereby “reporters and other spectators were required to fly to Guantánamo on specially arranged Pentagon flights,” and then “faced strict limitations on where they could go and what they could report,” which “helped cut the number of news organizations covering events there.”

The changes, if implemented, will certainly increase transparency, and that is to be commended, but huge and, I believe, insurmountable problems remain for the commissions.

Chief amongst these is how transparency can be balanced with what remains an obsessive need for secrecy on the part of the government. Having decided not to even investigate the Bush administration’s official torture program (despite the requirement to do so under the terms of the UN Convention Against Torture and America’s own domestic torture statute), the Obama administration will be obliged to continue making sure that, when those to be tried were tortured, discussion of the time they spent in secret CIA prisons, where the use of torture was widespread, is severely limited.

As Carol Rosenberg noted, “The CIA still forbids the public to hear what they did and where they did it, even when captives have described their treatment at pre-trial proceedings,” and these requirements also protect “the identities of CIA agents and contractors who carried out interrogations.”

This is of relevance not just in the case of Khalid Sheikh Mohammed and his co-accused, but, more pressingly, in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, who had his case officially referred for trial by military commission by the commissions’ Convening Authority, Retired Adm. Bruce MacDonald, on Wednesday, in what were the first capital charges put forward for trial in the commissions.

The problem, for the government, is that al-Nashiri was, notoriously, one of three “high-value detainees” waterboarded by the CIA. In a report on the referral to trial in the Washington Post, it was noted, coyly, that “waterboarding was sanctioned by Justice Department lawyers,” when what should have been noted was that Justice Department lawyers — John Yoo and Jay S. Bybee — purported to approve its use, even though there are no grounds whatsoever for lawyers to attempt to justify the use of torture.

There are further complications. As the CIA Inspector General concluded in a report on detainee treatment in 2004 (PDF), al-Nashiri was also threatened with mock executions when CIA operatives held a power drill and a gun to his head while he was hooded and naked in a secret prison in Thailand — actions that exceeded the guidelines laid down by Yoo and Bybee — and al-Nashiri’s lawyers argued in submissions to the Convening Authority that no case should be brought against their client because of his torture, because of the delay in his case, and also because of the destruction of evidence. Videotapes of al-Nashiri’s waterboarding were among the tapes destroyed by the CIA, in spite of a court order demanding that they be preserved, and his lawyers argued that the destruction of the tapes deprives the defense team of important and potentially exculpatory evidence.

In addition, although the government “cannot use any statements obtained under torture,” and “prosecutors are unlikely to rely on any statements Nashiri made while in CIA custody,” in the Post‘s words, one of his lawyers, Navy Lt. Cmdr. Stephen Reyes, stated that he intended to summon the CIA operatives involved in his client’s interrogation to the trial.

In the submission, his lawyers stated, “The United States should not be permitted to kill a man it has brutally tortured and subjected to cruel, inhuman and degrading treatment.”

Further afield, the European Parliament submitted a declaration in June stating that al-Nashiri should not be subject to the death penalty because of his treatment by the CIA, and human rights groups have also spoken out against the plans. In addition, al-Nashiri’s treatment in a secret CIA prison in Poland, where he was sent after his ordeal in Thailand in November and early December 2002, is regarded as so severe that, although there has been no official acknowledgement that a secret prison existed in Poland (either by the US or the Polish governments), the Polish prosecutor investigating his case was so alarmed by documents, which, evidently, he had access to, that he officially designated him — and Abu Zubaydah, another tortured “high-value detainee” — as a “victim.”

One last problem with the commissions was inadvertently revealed in the Weekly Standard article, when the Pentagon’s General Counsel Jeh Johnson said that Brig. Gen. Martins was “a recognized superstar” who, as the Miami Herald put it, “would focus not on getting the most convictions but on making the war court credible and sustainable.” This is the same Jeh Johnson who, in testimony before the Senate Armed Services Committee in July 2009, when the revival of the commissions was being discussed, urged the committee to drop the charge of material support, because the administration believed that it would be overturned on appeal, as it was “not a traditional violation of the law of war” — and, as mentioned above, was invented by Congress.

Al-Nashiri does not face a material support charge, but the charges he does face include conspiracy and murder in violation of the laws of war, and the latter charge also has a non-existent history as a war crime, having also been dreamt up by Congress when the military commissions were first revived after the Supreme Court ruled them illegal in 2006.

As al-Nashiri’s case finally proceeds to trial, all but the most blinkered enthusiasts for the commissions should be deeply troubled that, despite amendments, a system dedicated to evading all mention of torture in the case of a tortured man is going ahead with barely a murmur of dissent, even though this deeply flawed system contains invented war crimes, intended to turn a crime (terrorism) or engagement in warfare into violations of the laws of war, when they are no such thing.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

Fine words, indeed, although the Times itself has, over the last ten years, in common with most, if not all of the American establishment, failed to thoroughly and repeatedly condemn efforts, first by George W. Bush, and then by the Obama administration, to hold military trials for the mixed bag of soldiers and terrorist suspects held at Guantánamo.

This is where the rot set in, for which everyone in a position of authority, whether in politics or the media, bears responsibility. However, the failure to stem the poison flowing from this wound to the established order — in which terrorists are criminals, and soldiers are not terrorists — has led to an outrageous situation in which lawmakers (both Republicans and Democrats) have decided that the aberrations introduced by the Bush administration, which should, by now, have been thoroughly discredited, were, instead, just the first steps in the creation of an all-encompassing military state.

In this dystopian future, coming to America within months, if lawmakers are successful, anyone regarded as a terrorist must be held in military detention, where, it is planned, they may be subjected to abuse with impunity, and, if required, held forever without a trial and without any rights.

This was the aberration initially dreamt up by Bush and his close advisors for their “War on Terror,” and implemented at Guantánamo, throughout the war zones in Afghanistan and Iraq, and around the world in a network of secret prisons, but although it should have died as an enduring concept when President Obama took office, it took less than a year for supporters of military detention for terror suspects to start proposing its continuation and expansion, suggesting that no foreign terror suspect should ever receive a federal court trial.

None of the cheerleaders for military detention cared that, throughout the eight years of the Bush administration, the detention program in the “War on Terror” was actually a failure as well as an aberration, which had struggled to try just three men, because the correct venue for terrorist trials was in federal court, where hundreds of successful trials took place.

Instead, when, in November 2009, Attorney General Eric Holder announced a federal court trial in New York for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, the cheerleaders for military detention began mobilizing against the trial, starting a successful backlash that encouraged the administration first to freeze the proposal, and then, this year, to officially abandon it in favor of a military trial at Guantánamo.

This was a disgrace — and Eric Holder knew it, if no one else — but what no one in the administration foresaw was how Obama’s steady capitulation to pressure would embolden his critics to make ever more outrageous demands. Six weeks after the 9/11 trial announcement, when Umar Farouk Abdulmutallab, a Nigerian, was apprehended in Detroit after trying — and failing — to blow up a plane with a bomb in his underwear, the cries went up for him to be sent to Guantánamo and subjected to waterboarding, not read his Miranda rights, interrogated non-coercively by FBI agents, and tried in a federal court.

The critics did not have their way, although they did persuade the ever-compliant President to abandon releasing any more cleared Yemenis from Guantánamo, issuing a temporary moratorium that is still in place a year and a half later. This has contributed enormously to the stalemate at Guantánamo — where 171 men remain, even though 89 have been approved for transfer — and has created ill-feeling in Yemen, where the President has, effectively, judged all Yemenis as potential terrorists.

Even more crucially, the empowerment of Obama’s critics led inexorably to further attempts to dictate policy. There had been attacks on the President’s power before, through legislation preventing any prisoner from being brought to the US mainland for any reason except to face a trial, and through moves to prevent the President from closing Guantánamo by buying a prison in Illinois and moving the prisoners there. However, in December last year lawmakers went further than before.

In passages inserted into the annual defense authorization bill, lawmakers banned the use of funds to bring any Guantánamo prisoners to the US mainland — even to face trials — and specifically mentioned Khalid Sheikh Mohammed by name. They also banned the use of funds to buy a prison on the US mainland for the Guantánamo prisoners, and prevented the President from releasing any prisoner unless the defense secretary signed off on the safety of doing so. This provision was designed specifically to prevent the release of any prisoner cleared by the President ‘s own interagency Guantánamo Review Task Force to countries regarded by lawmakers as dangerous, including Afghanistan, Pakistan and Yemen.

These passages were an unwarranted and unconstitutional assault on the President’s powers, as even Conservative commentators recognized, but Obama again failed to challenge his critics. This reinforced them to such an extent that, in May, when dealing with this year’s defense authorisation bill, lawmakers in the House of Representatives responded to the news of the assassination of Osama bin Laden not by declaring an end to the “War on Terror,” but by insisting that the basis for that war — the Congress-approved Authorization for Use of Military Force, passed the week after the 9/11 attacks — should be renewed and made even more sweeping.

They also renewed their attacks on the President’s ability to transfer prisoners to the US mainland to face trials, his right to release prisoners to other countries without jumping through hoops, and his right to review prisoners’ ongoing detention without Congressional interference, according to his March 7, 2011 Executive Order authorizing the indefinite detention without charge or trial of 47 of the remaining Guantánamo prisoners. That order had already enraged those on the other end of the political spectrum, who recognized that it was Obama’s official extension of the heart of Bush’s own discredited detention policies.

Also included in the attacks was, for the first time, a fundamental assault on the President’s right to prosecute foreigners seized in connection with terrorist offences in federal court, also without interference from Congress.

The problems with the defense authorisation bill first came to light at the end of May, when the President’s advisors finally responded to “provisions that challenge critical Executive branch authority” by stating that, “If the final bill presented to the President includes these provisions … the President’s senior advisors would recommend a veto.”

That was important, but although the endless expansion of the “War on Terror” was dropped as an aim, as a result of concerted pressure from opponents, the Senate Armed Services Committee was fundamentally undaunted, and last month unveiled its plans for the mandatory military detention of terrorist suspects. As the New York Times explained in its dissenting editorial:

Republicans and Democrats are championing bills to further militarize the prosecution of terrorists, beyond anything even President George W. Bush proposed. They want Americans to believe the legislation will keep the country safer. In fact, these bills could end up tying the hands of FBI agents and other law enforcement officials trying to disrupt terrorist plots. They are likely to deprive prosecutors of their most powerful weapons in bringing terrorists to justice. And they come perilously close to upending the prohibition, which dates back to Reconstruction, against the military’s operating as a police force within the United States.

The Times also noted, correctly, that there was “no sign” that the White House had “tried to stop” the House of Representatives from “passing a particularly awful version of these bills, which would move most, if not all, terrorism cases from civilian courts to military tribunals,” or had “tried to stop” the Senate Armed Services Committee “from approving only a slightly better one.” The editors also had no time for complaints by Democrats on the Committee, who include Sen. Carl Levin, that “they defeated far worse proposals,” and made it clear that “President Obama must push the Democratic leadership to amend the Senate bill — and make it clear that he will veto any bill that turns over proper law enforcement functions to the military.”

While this situation continues to fester, with only the threat of a veto standing in the way of a dangerously militarized state, another development — the uproar over the administration’s proposal to try an alleged Somali terrorist, Ahmed Abdulkadir Warsame, in federal court in New York — has kept the advocates of military detention busy, even though the Warsame case actually raises a whole set of other troubling issues.

Before his arrival in New York to face a trial, Warsame had been held on a ship, in military custody, since April 19. As a result, the most troubling question ought to concern this two-month period off the books, whereas the military detention crowd has obsessed instead about how President Obama has been involved in what 23 Senators, led by John McCain and Mitch McConnell, described last week in a letter as an action that “appears to be a circumvention of the clear intent of many in Congress that terrorists captured abroad under the Authorization for Use of Military Force should not be brought into the United States for trial.”

Perhaps this will play into the hands of the Obama administration, in which federal court trials are seen as the correct venue for terrorist trials, even though Obama is himself responsible for having revived the military trials at Guantánamo in the first place, when he should have left them alone. This latest development — the letter from the 23 Senators — certainly doesn’t show lawmakers in a favourable light, as they continue, obsessively, to flog their pet topic.

If people are paying close attention, they may finally realize how deranged the advocates of military detention sound, although they should, of course, have been wary in the first place of the military being given powers that correctly belong to the law enforcement agencies, and especially of proposals that anyone accused of terrorist activities in the US must be held in military detention.

That way extreme danger lies — very possibly of the kind that led to the US “enemy combatant” Jose Padilla losing his mind in a US military brig during his ordeal of solitary confinement and torture between 2002 and 2005 — and if that is understood, then the correct focus in the Warsame story might become clear. That is to ask, ten years after ships were used to hold prisoners seized after the invasion of Afghanistan, at the start of the so-called “War on Terror,” why a ship has now been used to hold, for several months, a prisoner seized in connection with another conflict — in Somalia — in which the United States is not even officially involved.

In addition, it is also worth asking why, two and a half years since the end of the Bush administration, we are hearing once again about how a prisoner held outside the law had his first interrogations sessions — conducted under unspecified circumstances — followed by non-coercive interrogations by FBI agents, which were designed to secure evidence for a federal court trial. As the Associated Press described it, Warsame “was interrogated at sea by intelligence officials,” and it was only later that the FBI stepped in and “began the interrogation from scratch, in a way that could be used in court.”

Under Bush, the follow-up interrogators, after the torture had taken place, were openly referred to as “clean teams” — as they were in February 2008 when Khalid Sheikh Mohammed and his alleged co-conspirators, held for years in secret CIA torture prisons, were first put forward for military trials. If we are back in the dirty world of torture, that is even more chilling than the persistent attempts by lawmakers to establish a militarized state.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

Accusing the five men of being “responsible for the planning and execution” of the 9/11 attacks, the Pentagon added that the eight charges are “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.”

As the Pentagon proceeded to explain, subject to approval by the Commissions’ Convening Authority, Retired Vice Adm. Bruce MacDonald, prosecutors recommended that the charges “be referred as capital.”

Anyone paying attention will realise that we have been here before, on February 11, 2008, when the Pentagon announced that Khalid Sheikh Mohammed and the the four others named above (plus a sixth man, Mohammed al-Qahtani, against whom the charges were later dropped) were charged with “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism” — and four of them were, in addition, charged with “hijacking or hazarding a vessel.”

Astute readers will also recall that 18 months ago, on November 13, 2009, Attorney General Eric Holder announced that the five men charged on Tuesday would be tried in federal court rather than in a Military Commission at Guantánamo. Holder confidently told the nation, and the wider world:

After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.

I also want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties.

To critics of the Military Commissions (and there were many), Holder’s decision to pursue the alleged 9/11 co-conspirators in federal court was a principled and appropriate endorsement of federal court trials as the correct venue for terrorist trials. The Commissions, revived by Vice President Dick Cheney in November 2001, had been designed to lead to the swift executions of those seized — and, in many cases, tortured — in the “War on Terror,” and although the Supreme Court had ruled them illegal in June 2006, they had been revived by Congress.

There, lawmakers, adhering to the same flawed rationale of the “War on Terror” as the Bush administration — namely, that terrorists were actually “warriors” — invented war crimes for a revived version of the Commissions that first surfaced in the fall of 2006, and was then revived for the Obama administration in the summer of 2009.

Unfortunately for Holder, who believed — correctly, in my opinion — that trying Khalid Sheikh Mohammed in a courtroom would be “the defining event of my time as Attorney General,” and that “History will show that the decisions we’ve made are the right ones,” the decision to revive the Commissions, as well as endorsing federal court trials, fatally muddied the waters.

Holder looked rather foolish when, at the same time as announcing that KSM and his alleged co-conspirators would be tried in federal court, he also stated that five other prisoners would face trials by Military Commission, but, more importantly, the administration’s ambivalence — and its refusal just to focus on federal court trials — gave critics the option of pushing to shut off federal court trials while advocating for Military Commission trials at Guantánamo instead, and this is exactly what happened.

A cynical movement to stir up hysteria regarding a federal court trial in New York was so successful that the White House backed off, allowing lawmakers the opportunity to insert a provision into a military spending bill before Christmas last year that prevented President Obama from bringing any Guantánamo prisoner to the US mainland to face a trial, and which, to rub salt into the wound, explicitly mentioned Khalid Sheikh Mohammed by name.

Faced with this rebellion, Obama refused to consider a veto or a signing statement, meaning that the only viable option for a trial would be at Guantánamo, as the cheerleaders for the Commissions always intended.

Eric Holder failed to disguise his disappointment when, on April 4, he announced the decision to proceed with a Military Commission trial. In a speech full of criticism, he told lawmakers:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Tuesday’s announcement, therefore, provides nothing to celebrate — just a confirmation of President Obama’s failures to seriously tackle his critics when it comes to “national security” issues, which has been repeated over and over again in the last two years.

For Eric Holder, the disappointment is far greater, as he is on record as noting that history will judge him on how he deals with Khalid Sheikh Mohammed and his alleged co-conspirators. However, Holder is not the only loser. The administration, Congress, and the American people who, in large numbers, have allowed themselves to be seduced by the poisonous rhetoric of the Bush administration’s “War on Terror” have also lost, for the simple reason that Military Commissions remain a shameful, sub-standard venue for trials as important as these.

Contrary to the rhetoric of those endorsing the Commissions, the last thing the relatives of those who died on September 11, 2001 need is for the alleged perpetrators to be prosecuted in a chaotic kangaroo court. However, nearly ten years after the attacks, justice — fair, transparent justice, with a long historical pedigree — remains sidelined, bullied into submission by those who, still driven by vengeance, want the perpetrators to be “warriors” rather than what they were — mass murdering criminals, who do not deserve to be able to usurp the rhetoric of this phoney war for their own ends.

As published exclusively on the website of the Future of Freedom Foundation.

The Times also recognized torture as “immoral and illegal and counterproductive,” and stated that, although torture may produce some useful information — amongst all the lies that, for example, plague the military assessments of Guantánamo prisoners that were recently released by WikiLeaks — “most experienced interrogators think that the same information, or better, can be obtained through legal and humane means.”

I would prefer that the last line had read “experienced interrogators have absolutely no doubt that the same information, or better, can be obtained through legal and humane means,” and I would also have preferred the Times‘ editors not to have claimed that the use of torture has led to America’s “inability to hold credible trials for very bad men” — presumably a reference to Khalid Sheikh Mohammed and his alleged co-conspirators in the preparation and execution of the 9/11 attacks — when the truth is that Attorney General Eric Holder was convinced that a federal court trial could proceed, but was prevented from doing so for nakedly political reasons.

Neverthless, the editorial as a whole expresses the opinion that should have been taken by the Times from the beginning, instead of seeking scandal — and sales — through the article mentioned above — “Bin Laden Raid Revives Debate on Value of Torture” — which, for the most, did not even live up to its shocking promise.

Although it featured the Times‘ usual aversion to mentioning the word “torture,” with its discussion of “brutal interrogations” and “‘enhanced interrogation techniques’ like waterboarding,” the article also featured a sober and powerful asessment by Glenn L. Carle, a retired CIA officer who “oversaw the interrogation of a high-level detainee in 2002″ and who told the Times that “coercive techniques ‘didn’t provide useful, meaningful, trustworthy information,’” adding that, “while some of his colleagues defended the measures,” as the Times put it, “everyone was deeply concerned and most felt it was un-American and did not work.”

Also of great importance was the opinion of Tommy Vietor, a spokesman for the National Security Council, who told the Times, “The bottom line is this: If we had some kind of smoking-gun intelligence from waterboarding in 2003, we would have taken out Osama bin Laden in 2003.” He added, “It took years of collection and analysis from many different sources to develop the case that enabled us to identify this compound, and reach a judgment that Bin Laden was likely to be living there.”

The key passage of which the Times should be ashamed, however, and which its editorial on Thursday only addressed belatedly, ater the damage had been done, was the following:

The discussion of what led to Bin Laden’s demise has revived a national debate about torture that raged during the Bush years. The former president and many conservatives argued for years that force was necessary to persuade Qaeda operatives to talk. Human rights advocates, and Mr. Obama as he campaigned for office, said the tactics were torture, betraying American principles for little or nothing of value.

Simply put, there is absolutely no excuse for describing an illegal program that was conceived in secret by a small number of Bush administration insiders as something that sparked “a national debate,” just as there is no excuse for stating that human rights advocates, and Barack Obama on the campaign trail, were somehow expressing an optional position when they “said the tactics were torture.” The tactics were torture, plain and simple, and torture is as illegal when discussed in news reports as it is on the editorial pages — and all the more so when the Times prides itself on the fabled “objectivity” of its reporting.

Here, then, is a cross-post of the editorial that should have been the Times‘ immediate response to the lies peddled by John Yoo, Rep. Peter King, Liz Cheney, Bill Kristol and others, following the news of Osama bin Laden’s death:

The Torture Apologists: Efforts to justify torture after the Bin Laden killing are cynical and destructive
New York Times editorial, May 5, 2011

The killing of Osama bin Laden provoked a host of reactions from Americans: celebration, triumph, relief, closure and renewed grief. One reaction, however, was both cynical and disturbing: crowing by the apologists and practitioners of torture that Bin Laden’s death vindicated their immoral and illegal behavior after the Sept. 11 attacks.

Jose Rodriguez Jr. was the leader of counterterrorism for the C.I.A. from 2002-2005 when Khalid Shaikh Mohammed and other Al Qaeda leaders were captured. He told Time magazine that the recent events show that President Obama should not have banned so-called enhanced interrogation techniques. (Mr. Rodriguez, you may remember, ordered the destruction of interrogation videos.)

John Yoo, the former Bush Justice Department lawyer who twisted the Constitution and the Geneva Conventions into an unrecognizable mess to excuse torture, wrote in the Wall Street Journal that the killing of Bin Laden proved that waterboarding and other abuses were proper. Donald Rumsfeld, the former defense secretary, said at first that no coerced evidence played a role in tracking down Bin Laden, but by Tuesday he was reciting the talking points about the virtues of prisoner abuse.

There is no final answer to whether any of the prisoners tortured in President George W. Bush’s illegal camps gave up information that eventually proved useful in finding Bin Laden. A detailed account in the Times on Wednesday by Scott Shane and Charlie Savage concluded that torture “played a small role at most” in the years and years of painstaking intelligence and detective work that led a Navy Seals team to Bin Laden’s hideout in Pakistan.

That squares with the frequent testimony over the past decade from many other interrogators and officials. They have said repeatedly, and said again this week, that the best information came from prisoners who were not tortured. The Times article said Khalid Shaikh Mohammed, who was waterboarded 183 times, fed false information to his captors during torture.

Even if it were true that some tidbit was blurted out by a prisoner while being tormented by C.I.A. interrogators, that does not remotely justify Mr. Bush’s decision to violate the law and any acceptable moral standard.

This was not the “ticking time bomb” scenario that Bush-era officials often invoked to rationalize abusive interrogations. If, as Representative Peter King, the Long Island Republican, said, information from abused prisoners “directly led” to the redoubt, why didn’t the Bush administration follow that trail years ago?

There are many arguments against torture. It is immoral and illegal and counterproductive. The Bush administration’s abuses — and ends justify the means arguments — did huge damage to this country’s standing and gave its enemies succor and comfort. If that isn’t enough, there is also the pragmatic argument that most experienced interrogators think that the same information, or better, can be obtained through legal and humane means.

No matter what Mr. Yoo and friends may claim, the real lesson of the Bin Laden operation is that it demonstrated what can be done with focused intelligence work and persistence.

The battered intelligence community should now be basking in the glory of a successful operation. It should not be dragged back into the muck and murk by political figures whose sole agenda seems to be to rationalize actions that cost this country dearly — in our inability to hold credible trials for very bad men and in the continued damage to our reputation.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

This is wrong on both fronts, as Jane Mayer of the New Yorker explained in response to an early manifestation of the story, put out by torture apologists Liz Cheney and Bill Kristol:

It may have taken nearly a decade to find and kill Osama bin Laden, but it took less than twenty-four hours for torture apologists to claim credit for his downfall.

Keep America Safe, an organization run by former Vice President Dick Cheney’s daughter Liz Cheney and Bill Kristol, released a victory statement today that entirely failed to mention President Obama, but lavishly credited “the men and women of America’s intelligence services who, through their interrogation of high-value detainees, developed the information that apparently led us to bin Laden.”

Funny. You would think that if the CIA’s interrogation of high-value detainees was all it took, the US government would have succeeded in locating bin Laden before 2006, which is when the CIA’s custody of so-called “high-value detainees” ended. Instead, after the Supreme Court ruled that year that prisoners needed to be treated humanely in compliance with the Geneva Conventions, the CIA was forced to turn its special detainees over to the military for detention and interrogation using more lawful tactics in Guantánamo Bay, Cuba. It took five more years before all the dots could be adequately connected.

Although it was suggested that the key to bin Laden’s killing — tracking down one of his most trusted couriers — began with the interrogation of the “high-value detainee” Khalid Sheikh Mohammed during his long detention in secret CIA prisons, from March 2003 to September 2006, involved the interrogation in 2004 of a “ghost prisoner,” Hassan Ghul, who was never held at Guantánamo, and was followed up during the interrogation of another “high-value detainee,” Abu Faraj al-Libi, seized in Marwan, Pakistan, in May 2005 and also held in secret CIA prisons until September 2006, when he, KSM and 12 others were transfered to Guantánamo, the only parts of the story that involved detention in secret prisons were the disclosure by Khalid Sheikh Mohammed of the kunyas (nicknames) used by various couriers, and it has not been suggested that torture was used in extracting this information, and the interrogation of Hassan Ghul, seized in Iraq, and held in unknown locations.

As the Associated Press reported, “four former US intelligence officials” told them that KSM had yielded the names of “several of bin Laden’s couriers” while being held in “a secret prison in Eastern Europe” — in other words, in Poland or Romania, where he was held in 2003 and 2004. In relation to Hassan Ghul, the New York Times reported that, “according to current and former officials briefed on the interrogations,” Ghul “provided a crucial description of the courier” after “some tough treatment.” It would be useful, of course, if Ghul could one day be asked about what happened, but that seems unlikely as, although he is now being referred to widely in the mainstream media, and also turns up regularly in the classified military documents released last week by WikiLeaks, his whereabouts are completely unknown, as he is one of dozens of “ghost prisoners” held by the Bush administration in its shadowy network of secret CIA prisons, who never ended up in Guantánamo. As such, it would be appropriate if those mentioning him in the media were to ask what happened to him, but now, it seems, “ghost prisoners” can be summoned up without context in news stories, as though their actual existence — their life or death — is completely irrelevant.

A clear sign of the distortions seeping into media reports was to be found elsewhere in the AP report, when the authors, Adam Goldman and Matt Apuzzo, claimed that “The revelation that intelligence gleaned from the CIA’s so-called black sites helped kill bin Laden was seen as vindication for many intelligence officials who have been repeatedly investigated and criticized for their involvement in a program that involved the harshest interrogation methods in US history.” That shameful defense of torture in secret CIA prisons — in which torture itself was coyly and dishonestly referred to as “the harshest interrogation methods in US history” –was followed up by a bullish, triumphalist quote from Marty Martin, described as “a retired CIA officer who for years led the hunt for bin Laden,” who said, “We got beat up for it, but those efforts led to this great day.”

Only in the next paragraph did the AP deign to acknowledge that Khalid Sheikh Mohammed “did not reveal the names while being subjected to … waterboarding,” which was described, as is usual in the mainstream media, as a “simulated drowning technique,” even though it is a torture technique, recognized as such for centuries, and does not involve anything simulated at all.

After finally explaining that KSM “identified them [the couriers] many months later under standard interrogation,” the AP concluded that these revelations left it “once again up for debate as to whether the harsh technique was a valuable tool or an unnecessarily violent tactic.”

Readers will, I hope, realize how everything in these passages from the AP confirms what I described at the start of this article as the “casual and widespread acceptance” that bin Laden’s death “would not have been achieved without the use of torture, and without the existence of Guantánamo,” as the KSM element of the story, which, the AP eventually conceded, did not involve torture, and the main part of the story actually involved the name of a key courier being disclosed in 2007, at Guantánamo, by Abu Faraj al-Libi (as revealed in his Detainee Assessment Brief, released by Wikileaks last week). Even then, it took another two years until US officials were able to identify where this particular courier operated, and they didn’t manage to locate the actual compound in which bin Laden was found and killed until August last year.

As a defense of torture, the bin Laden trail is therefore useless, as Jane Mayer explained. “This timeline doesn’t seem to provide a lot of support for the pro-torture narrative,” she wrote, adding, “One would think that if so-called ‘enhanced interrogations’ provided the magic silver bullet, and if the courier was a protégé of KSM’s, then the CIA might have wrapped this up back in 2003, while they were waterboarding the 9/11 mastermind a hundred and eighty-three times.”

Moreover, as a defense of Guantánamo — also implied in the general tenor of the reporting suggesting that there should be a  renewed “debate” about torture — it also fails. “High-value detainees” like Khalid Sheikh Mohammed and Abu Faraj al-Libi should never have been tortured, but had they been interrogated lawfully they would still have been recognized as particularly significant prisoners, and therefore the extraction of information from them has absolutely nothing to do with Guantánamo.

Rather than being a prison focused on securing intelligence from a handful of significant prisoners, Guantánamo was — and still is, fundamentally — an abomination and an aberration, an experimental facility in which prisoners seized in a largely random manner were held neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trials, but as “unlawful enemy combatants,” a category of prisoner invented by the Bush administration, who were supposed to be held without any rights whatsoever for as long as George W. Bush wished, and interrogated for “actionable intelligence” in whatever way the Commander in Chief saw fit.

Alarmingly, Benjamin Wittes of the Brookings Institution, an advocate of indefinite detention without charge or trial for “War on Terror” prisoners, has tried to claim that what the news about the information that led to bin Laden’s death demonstrates is the opposite: that it justifies the limitless dragnet conceived by the Bush administration in the early years of its “War on Terror,” in which as many people as possible should be rounded up and interrogated for years — or decades — to produce pieces of a larger “mosaic” of intelligence.

In Wittes’ words, the account of how the information was obtained “strongly supports what intelligence community folks have long argued about the way good operational intelligence comes about.” He continued by claiming that “Information has a very long life,” that it “gets put together piece by piece in a kind of mosaic over many years,” and, moreover, that “one doesn’t necessarily know what the significant pieces will be when one is collecting the information.”

Not only is this not backed up by the evidence about the “high-value detainees,” rather than the general population of Guantánamo, but anything that tries to revisit the worst years of the Bush administration, and to justify holding hundreds, or thousands of prisoners for what they may be able to conribute to some sort of limitless “mosaic” of intelligence, still fills me with chills, as do attempts to defend the use of torture.

On that front, the most significant comments I have read over the last few days have come from former FBI agent Jack Cloonan. I have regularly quoted from Cloonan and his colleague Dan Coleman, discussing their abhorrence of torture and their defense of rapport-building and psychological, torture-free interrogations with Jane Mayer of the New Yorker back in 2006, so I was delighted to see that David Danzig of Human Rights First also drew on an interview with Cloonan in an article on Tuesday, “Five Reasons Why Torture Did Not Help U.S. Forces Find Bin Laden.”

Danzig wrote:

Some will argue that it was only thanks to the waterboarding that KSM and al-Libi were willing to talk at all. This notion is rejected by the more than 75 interrogators, questioners and debriefers with the military, the FBI and the CIA who I have spoken to in depth about this subject since the revelations of abuse at Abu Ghraib. I have yet to speak to a professional interrogator who believes that torture is an effective means of questioning suspected terrorists.

Jack Cloonan who served on the FBI’s Osama Bin Laden unit for 6 years told me that during an interrogation (or what the FBI calls an interview) the goal was to, “work towards the objective of getting this person to cross the threshold and become, in effect, a traitor to their own cause.”

According to Cloonan, “the Al-Qaeda people that I dealt with were all very sophisticated in terms of their language skills and understanding of what was at stake.” Cloonan said that it essentially became a question of whether he could offer the detainee enough of what he wanted (protection for his family, more lenient sentencing/incarceration etc.) to convince him to talk. “They struggled,” he said, “with whether or not I was being truthful and I was going to honor everything I said.”

If you gave the detainee any reason not to trust you, there is no negotiation, Cloonan explained. The detainee won’t be willing to bargain with giving up his knowledge in exchange for something the interrogator can provide. He simply won’t trust you. Torture, Cloonan says, shatters any possibility for trust. “It changes the dynamic,” Cloonan said. “And once you have gone down that path, in my experience there is no going back.”

My conclusion, then? Without torture, Osama bin Laden might have been found many years ago. Torture remains illegal, as well as counter-productive, and attempts to revive it as a topic for “debate” are as vile and unprincipled as attempts to claim that the death of Osama bin Laden somehow justifies the ongoing existence of Guantánamo.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners.

This is an important article, in which Hertzberg contrasts Guantánamo unfavorably with how the United States treated prisoners of war in the Second World War, describing how a “relative handful of shackled, isolated prisoners has somehow been permitted to engender a miasma of popular fear and political cowardice that contrasts shamefully with the matter-of-fact courage of an earlier and simpler time.” In addition, when writing about how Obama’s promise to close Guantánamo has not come to pass, he correctly identifies the reasons as “a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill.”

Crucially, however, Hertzberg recommends that Obama could, and should address “the lack of any official accountability for the abuses of the past, especially the embrace of torture,” noting, “Perhaps there are good, prudential reasons for stopping short of prosecuting those who authorized this vile offense to elementary morality for the crimes against American and international law that it entailed,” but adding, “No such reasons forbid the appointment of a truth commission,” which “would be a healthy act of atonement.”

Prisoners
By Hendrik Hertzberg, The New Yorker, April 18, 2011

On May 13, 1943, Axis forces in North Africa surrendered. The Allies suddenly found themselves saddled with nearly three hundred thousand prisoners of war, including the bulk of General Erwin Rommel’s famed Afrika Korps. Unable to feed or house their share, the British asked their American comrades to relieve them of the burden. And so, by the tens of thousands, German soldiers were loaded aboard Liberty Ships, which had carried American troops across the Atlantic. Eventually, some five hundred P.O.W. camps, scattered across forty-five of the forty-eight United States, housed some four hundred thousand men. In every one of those camps, the Geneva conventions were adhered to so scrupulously that, after the war, not a few of the inmates decided to stick around and become Americans themselves. That was extraordinary rendition, Greatest Generation style.

The “war on terror” is a very different kind of war, and the prisoners thereof are very different, too. It’s not just that a higher proportion of them appear to have been truly dedicated to the ideology in whose name they were fighting, or that they were unaffiliated with a government. It’s also that their numbers are small — a hamlet compared to the city-size P.O.W. population of 1945. In the nine years since the creation of the purpose-built prison at Guantánamo Bay, Cuba, a grand total of seven hundred and seventy-nine men (and boys — the youngest was fifteen years old when he was captured) have been sent there. It currently holds a hundred and seventy-two. Yet this relative handful of shackled, isolated prisoners has somehow been permitted to engender a miasma of popular fear and political cowardice that contrasts shamefully with the matter-of-fact courage of an earlier and simpler time.

A week ago, on the same day that President Obama officially launched his campaign for reelection, his Attorney General, Eric Holder, announced that Guantánamo’s most notorious inmate, Khalid Sheikh Mohammed, along with four others accused of direct involvement in the 9/11 attacks, will at last be brought to trial — but on Cuban, not American, soil, and before a panel of military officers, not a civilian judge and jury. You may recall that the last time Barack Obama was a candidate he promised that, if elected, he would shut Guantánamo down (by then a fairly uncontroversial position, one that even President Bush and his would-be Republican successor had come around to) and that he would see to it that accused terrorists were prosecuted in civilian courts rather than by military commissions. He promised, too, that his Administration would not continue indefinite detention without indictment or trial and, of course, that it would put a definitive end to the use of torture. He has been able to keep only the last of these promises fully. The rest have been undone by a combination of political nihilism on the part of Republicans, political ineptitude on the part of his own Administration, and political fecklessness on the part of the people’s representatives on Capitol Hill.

Two days after the inauguration, Obama, in the dazzling dawn of his Presidency, issued an executive order directing that the Guantánamo detention camps “be closed as soon as practicable, and no later than one year from the date of this order.” The slippage began less than a month later, with a complicated legal tussle over seventeen Gitmo prisoners. Even though they were Chinese Uighurs who had had nothing to do with anti-American violence, the mere possibility that they might set foot on the United States mainland was enough to ignite a brushfire of not-in-my-back-yard hysteria. By May of 2009, it had reached the point where the Senate voted, 90–6, not only to keep Gitmo open indefinitely but also to block the transfer of any of its detainees to U.S. soil, where the civilian courts are. (Though all six dissenters were Democrats, the rest of the caucus voted with the Republicans.) At times, Administration bungling has enabled local grandstanding. Later in 2009, the Justice Department neglected to prepare New York’s City Hall for the impact of its original plan for Khalid Sheikh Mohammed, which was to try him in a Manhattan civilian court. Mayor Bloomberg, Police Commissioner Raymond Kelly, and Senator Charles Schumer quickly turned tail, and so did Obama.

A dispiriting series of tactical retreats from civil-liberties principles has followed. In January of this year, the President signed a politically veto-proof defense-appropriation bill that had been amended to again block funding for any transfer of detainees from Guantánamo to the home of the brave. In March, Obama issued another executive order. While it establishes twice-yearly reviews of the status of current detainees, confirms their habeas-corpus rights, and permits them to be represented by outside lawyers as well as by government-appointed defenders, the order also allows trials by military commissions to go forward, and at Guantánamo to boot. Now, in April, we learn that one such trial will be the case that, a year ago, Holder said (to this magazine’s Jane Mayer) would be “the defining event of my time as Attorney General.” It appears that Holder’s prediction will come true, though not in the way he intended. He was sure that he had an overwhelming case against Khalid Sheikh Mohammed, one that would not have relied on evidence obtained through torture. (Mohammed was waterboarded a hundred and eighty-three times.) But he lost the bureaucratic battle. His anger last week as he announced the decision could not quite mask the Administration’s shame.

The collapse of Obama’s effort to close Guantánamo is the kind of failure that, in our atomized, increasingly dysfunctional political system, has a thousand deadbeat dads. But it has always been within the President’s power to remedy one aspect of the moral morass that Guantánamo symbolizes: the lack of any official accountability for the abuses of the past, especially the embrace of torture. There is no dispute that there was torture, that it was systematic, and that it was encouraged at the highest levels — George W. Bush, in his memoir, currently adorning the best-seller lists, practically boasts of approving it. Perhaps there are good, prudential reasons for stopping short of prosecuting those who authorized this vile offense to elementary morality for the crimes against American and international law that it entailed. No such reasons forbid the appointment of a truth commission. The work of such a commission, charged with compiling the record, affixing responsibility, and formally acknowledging what was done, would be a healthy act of atonement.

Obama has said more than once that he prefers to look forward, not backward. Not everyone feels that way. As soon as the Khalid Sheikh Mohammed reversal was announced, Peter King, the New York Republican who heads the House Committee on Homeland Security, called it “yet another vindication of President Bush’s detention policies.” It is no such thing. Even with all the failings of the current Administration, the difference between its approach and its predecessor’s is the difference between night and day, albeit a rainy, miserable day, overcast with dark clouds. But, by elevating amnesia to official policy, the President has put himself in a poor position to make even that argument.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

On CBS News, Evening News Producer Phil Hirschkorn stated that there was “little new information in the court documents themselves,” and pointed out that:

Between the extraordinarily detailed 9/11 Commission Report, commission staff reports and the extensive Guantánamo public record, including charging documents and transcripts (from the earlier “tribunals” and current “commissions”), the dismissed federal indictment reveals little that wasn’t already known or previously alleged elsewhere. That doesn’t mean the government’s case was weak, and an indictment is not evidence. There would have been plenty to convict.

Hirschkorn also pointed out that perhaps the most detailed account, generally overlooked, is a 58-page statement drawn from the interrogations of Khaid Sheih Mohammed (PDF), which was “introduced at the nation’s first and only 9/11 trial — of Zacarias Moussaoui in 2006 in Virginia federal court — and which “was offered by the defense as a substitute for KSM’s supposedly exculpatory testimony regarding Moussaoui.”

Nevertheless, to freeze in time this indictment and to make it available in HTML format, I’m cross-posting the ten counts below — but not the names of all the 2,976 people who died on Septermber 11, 2001, which make up the latter half of the indictment. This is not, I hasten to add, because I lack sympathy for them — in fact, I agree with Marcy Wheeler that it’s “the most impressive part of the indictment, seeing the list of names like that” — but because formatting the names would have taken more hours than I can spare right now and may also have resulted in a document that was too big too publish. Again, for the full list, please check the original here.

Speaking of Marcy, her post analyzing the indictment — and asking some interesting questions about what it does reveal, and what new questions it raises — is recommended, as are some of the comments from Marcy’s lively and very engaged audience, and I also recommend the New York Times‘ article on the indictment, published on April 10, in which Benjamin Weiser analyzed the indictment’s place in the wider history of terrorism trials in New York, based on its docket number, 93 Cr. 180, which, as he explained, was first used in connection with the 1993 attacks on the World Trade Center by Ramzi Yousef (whose uncle is Khalid Sheikh Mohammed), and was followed by 13 others, each adding more to the story, and culminating in the 9/11 indictment.

As the Times explained, “there appeared to have been legal, practical, and even symbolic reasons to charge Mr. Mohammed in the lineage that began with the 1993 trade center attack.” Karen J. Greenberg, executive director of the Center on Law and Security at New York University, said, “One big point of these trials is that they present to the public the narrative history that we otherwise wouldn’t have. Symbolically, it has everything to do with understanding the threat we’re under, and how it’s changed over time, and how significant KSM’s role has been.”

The Times also noted that the 9/11 case “had been assigned to Judge Duffy, who had already handled three trials in the 1993 attack and the Bojinka conspiracy [a 1995 plot, in which 'the government said Mr. Yousef had an aborted plan ... to blow up a dozen American airliners over the Pacific Ocean']. In some ways, the indictments have evolved into a kind of terrorism genealogy that allows people, plots, and families to be traced.”

Noting also that “the 93 Cr. 180 series has yielded convictions of all eight defendants who were tried (Mr. Yousef twice), with their convictions upheld on appeal,” the Times concluded its article — whose sub-text was clearly a defense of federal court trials for KSM and his co-conspirators — with a comment made by a former prosecutor who “sounded almost wistful in speaking of the indictment’s dismissal,” and who stated, “It’s almost like an obituary. You don’t get the sense that it’s going to come back anytime soon.”

For my less challenging contribution to the discussions abut the indictment — a formatting exercise, essentially — see my cross-post of the indictment below, although I should reiterate that I did analyze the decision to drop the proposed federal court trial in an article entitled, Holder, Obama and the Cowardly Shame of Guantánamo and the 9/11 Trial.

INDICTMENT (S14) 93 Cr. 180(KTD) in the UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

- v. -

KHALID SHEIKH MOHAMMED, a/k/a “Mukhtar,” a/k/a “Mukhtar al-Baluchi,” a/k/a “Mukh,” a/k/a “Abdulrahman Abdullah al- Ghamdi,” a/k/a “Salem Ali,”

WALID BIN ATTASH, a/k/a “Khallad Bin Attash,” a/k/a “Saleh Saeed Mohammed Bin Yousaf,” a/k/a “Tawfiq Muhammad Salih Bin Rashid,” a/k/a “Silver,”

RAMZI BIN AL-SHIBH, a/k/a “Abu Ubaydah,” a/k/a “Ahad Abdollahi Sabet,”

ALI ABDUL AZIZ ALI, a/k/a “Aliosh,” a/k/a “Ali A,” a/k/a “Isam Mansur,” a/k/a “Ammar al-Baluchi,” a/k/a “Hani,”

MUSTAFA AL-HAWSAWI, a/k/a “Hashem Abdulrahman,” a/k/a “Hashem Abdollahi,” a/k/a “Mustafa Ahmed,” a/k/a “Zaher,” a/k/a “Khal,”

THE TERRORIST ATTACKS OF SEPTEMBER 11, 2001
(Counts One through Nine)

COUNT ONE

Conspiracy to Commit Acts of Terrorism Transcending National Boundaries

The Grand Jury charges:

Background: al Qaeda

1. From in or about 1989 until the date of the filing of this Indictment, an international terrorist group existed that was dedicated principally to opposing non-Islamic governments with force and violence. This organization grew out of the “mekhtab al khidernat” (the “Services Office”) organization that had maintained offices in various parts of the world, including Afghanistan, Pakistan, and the United States. The group was founded by Usama Bin Laden and others. The group called itself “al Qaeda” (“the Base”). Until in or about 1991, al Qaeda was headquartered in Afghanistan and Peshawar, Pakistan. In or about 1991, the leadership of al Qaeda, including its “emir” (leader or prince) Usama Bin Laden, relocated to the Sudan. Al Qaeda was headquartered in the Sudan from approximately 1991 until approximately 1996 but still maintained offices in various parts of the world. In 1996, Usama Bin Laden and other members of al Qaeda relocated to Afghanistan. Many loyalists demonstrated their commitment to al Qaeda by pledging an oath of allegiance (called a “bayat”) to Usama Bin Laden.

2. Usama Bin Laden and al Qaeda violently opposed the United States for several reasons. First, the United States was regarded as an “infidel” because it was not governed in a manner consistent with the group’s extremist interpretation of Islam. Second, the United States was viewed as providing essential support for other “infidel” governments and institutions, particularly the governments of Saudi Arabia and Egypt, the nation of Israel, and the United Nations, which were regarded as enemies of al Qaeda. Third, al Qaeda opposed the involvement of the United States armed forces in the Gulf War in 1991 and in Operation Restore Hope in Somalia in 1992 and 1993. In particular, al Qaeda opposed the continued presence of American military forces in Saudi Arabia (and elsewhere on the Saudi Arabian peninsula) following the Gulf War. Fourth, al Qaeda opposed the United States Government because of the arrest, conviction, and imprisonment of persons belonging to al Qaeda or its affiliated terrorist groups or those with whom it worked.

3. For these and other reasons, Usama Bin Laden declared a “jihad,” or holy war, against the United States, which he carried out through al Qaeda and its affiliated organizations. Usama Bin Laden issued public edicts calling for terrorist attacks against the United States and the murder of Americans. Members of al Qaeda issued “fatwahs” (rulings on Islamic law) indicating that such attacks were both proper and necessary.

4. Al Qaeda functioned both on its own and through some of the terrorist organizations that operated under its umbrella, including: Egyptian Islamic Jihad, which was led by Ayman al-Zawahiri; the Islamic Group (also known as “el Gamaa Islamia” or simply “Gamaa’t”); Jema’ah Islamiyah in Southeast Asia and Australia; and jihad groups in other countries, including the Sudan, Egypt, Saudi Arabia, Yemen, Somalia, Eritrea, Djibouti, Afghanistan, Pakistan, Bosnia, Croatia, Albania, Algeria, Tunisia, Lebanon, the Philippines, Tajikistan, and Azerbaijan, as well as the Kashmir region of India and the Chechen region of Russia. Al Qaeda also maintained cells and personnel in a number of countries to facilitate its activities, including in Kenya, Tanzania, the United Kingdom, Germany, Spain, Canada, Malaysia, Thailand, and the United States.

Al Qaeda’s Organizational Structure

5. Al Qaeda had a command and control structure that included a majlis al shura (or consultation council), which discussed and approved major undertakings, including terrorist operations. Among those who sat on the majlis al shura of al Qaeda were Usama Bin Laden and Muhammad Atef, a/k/a “Abu Hafs el Masry,” until his death in mid-November 2001.

6. Under the majlis al shura, al Qaeda had a number of “committees,” including a “military committee” that considered and approved “military” matters. Muhammad Atef sat on the military committee and, until his death, was one of Usama Bin Laden’s principal military commanders. Atef was responsible for supervising the terrorist training of al Qaeda members and identifying targets for terrorist attacks that would be carried out, or sponsored, by al Qaeda.

7. In addition, al Qaeda had a “media committee,” which promoted al Qaeda by, among other things, preparing and distributing promotional materials to advertise al Qaeda’s terrorist agenda, intimidate its enemies, and attract recruits. KHALID SHEIKH MOHAMMED, WALID BIN ATTASH and MUSTAFA AL-HAWSAWI, the defendants, participated in the affairs of the media committee.

AI Qaeda’s Terrorist Training

8. Al Qaeda sponsored, managed, and financially supported training camps in Afghanistan. At the camps, personnel of al Qaeda and its affiliated terrorist groups were instructed in the use of firearms, explosives, chemical weapons, and other weapons of mass destruction. In addition to providing training in the use of various weapons, these camps — including camps known as al Farooq, Khalden, Derunta, Khost, Siddiq, Jihad Wal, and Mes Aynak — were used to conduct operational planning against United States targets around the world and experiments in the use of chemical and biological weapons. Al Qaeda personnel and others attending the camps flew from various locations to countries neighboring Afghanistan, usually Pakistan, and then traveled to Afghanistan and the camps using ground transportation. Al Qaeda made a promotional video concerning its training camps, featuring Usama Bin Laden, which was publicly aired, in or about June 2001, on the Al-Jazeera satellite television channel, and after that time received worldwide media coverage.

9. Al Qaeda’s camps were also used to train the group’s personnel in operational security and counterintelligence methods. This training, some of which was reduced to writing in assorted training manuals, was designed to prepare al Qaeda personnel to avoid detection by authorities when traveling abroad to perform terrorist operations or otherwise conduct al Qaeda affairs. For example:

• a. Al Qaeda personnel who were traveling abroad were instructed to avoid signaling their connection to the organization or their religious beliefs. These instructions included dressing in “Western” attire, shaving their beards, carrying no Islamic literature, and bringing cologne and cigarettes (each of which is generally forbidden in Islamic culture).
• b. Al Qaeda taught its personnel to “clean” their passports before traveling abroad. This tactic typically involved eliminating from the passport any record of prior travel to destinations associated with al Qaeda (for example, Afghanistan, Pakistan, or the Sudan) by doctoring the passport or by obtaining a new or replacement passport shortly before traveling.
• c. Al Qaeda required its personnel to use fake names and codes in internal communications. Al Qaeda personnel were assigned “kunyas” (war names), or otherwise referred to by aliases or nicknames. Among other commonly used code words, “wedding” was used to refer to an impending terrorist operation and “honey” was used to refer to explosives and weapons.
• d. Al Qaeda instructed its personnel who were traveling abroad to prepare a false “cover story” to disguise the true purpose of the travel.
• e. Al Qaeda personnel were taught that information regarding a terrorist operation would be shared by al Qaeda leadership only on a “need to know” basis. Operatives would be managed by al Qaeda leadership in compartmented sections (sometimes called “cells”). In other words, the cells would he coordinated by al Qaeda leadership, but information would not necessarily be shared between the cells. A member of one cell might not know of the existence of another cell and its membership.
• f. Al Qaeda taught its personnel to monitor media reporting of its operations to determine the effectiveness of their terrorist activities.
• g. Al Qaeda provided counter-interrogation training to its personnel, which, among other things, required captured operatives to lie to authorities to prevent detection of an ongoing plot.

Al Qaeda’s Calls to Violence Against Americans

10. On various occasions, in the early 1990s, a co-conspirator not named as a defendant herein advised other members of al Qaeda that it was proper under Islam to engage in violent actions against infidels, even if others might be killed by such actions, because if the others were “innocent,” they would go to paradise, and if they were not “innocent,” then they deserved to die.

11. On or about August 23, 1996, a Declaration of Jihad was disseminated. It stated that it was from the Hindu Kush mountains in Afghanistan, and was entitled, “Message from Usamah Bin-Muhammad Bin-Laden to His Muslim Brothers in the Whole World and Especially in the Arabian Peninsula: Declaration of Jihad Against the Americans Occupying the Land of the Two Holy Mosques; Expel the Heretics from the Arabian Peninsula.”

12. In February 1998, Usama Bin Laden endorsed a fatwah under the banner of the “International Islamic Front for Jihad on the Jews and Crusaders.” This fatwah, published in the publication Al-Quds al-’Arabi on February 23, 1998, stated that Muslims should kill Americans — including civilians — anywhere they could be found.

13. In or about June 1999, in an interview with an Arabic-language television station, Usama Bin Laden issued a further threat indicating that all American males should be killed.

14. In or about September 2000, in an interview with an Arabic-language television station, Usama Bin Laden called for a “jihad” to release the “brothers” in jail “everywhere.”

Overview of the Plot

15. In early 1999, in Afghanistan, Usama Bin Laden, Mohammad Atef, KHALID SHEIKH MOHAMMED, the defendant, and other al Qaeda leaders planned a terrorist operation targeting U.S. interests and persons. The plan required al Qaeda operatives to hijack commercial airplanes and pilot them into prominent buildings in the United States, causing maximum casualties and destruction.

16. In late 1999 and early 2000, in Malaysia, Thailand, and elsewhere, al Qaeda personnel surveyed airports and in-flight commercial airplanes to determine means by which the group’s operatives could later evade security measures.

17. From in or about December 1999 through in or about June 2000, al Qaeda selected operatives to pilot the airplanes to be hijacked and dispatched the operatives to the United States to obtain flight training and otherwise carry out the plot. Of this group of prospective pilot hijackers, Khalid al-Mihdhar and Nawaf al-Hazmi were the first to arrive in the United States, on or about January 15, 2000. They were followed by Marwan al-Shehhi, Mohamed Atta, and Ziad Jarrah, on or about May 29, 2000, June 3, 2000, and June 27, 2000, respectively.

18. From in or about June 2000 through in or about January 2001, Marwan al- Shehhi, Mohamed Atta, and Ziad Jarrah successfully completed pilot and jet-simulator training at flight schools and training centers in Florida. Khalid al-Mihdhar and Nawaf al-Hazmi did not acquire the necessary pilot skills. Hani Hanjour traveled to the United States on or about December 8, 2000, after which he took pilot and jet-simulator training in Arizona. In 2001, Zacarias Moussaoui, a co-conspirator not named as a defendant herein, traveled to the United States and took pilot and jet-simulator training in Oklahoma and Minnesota. Al Qaeda provided financial and logistical support to these prospective pilot hijackers while they were in the United States.

19. From in or about April 2001 through in or about June 2001, al Qaeda sent 13 additional hijackers to the United States to carry out the operation. These hijackers were supported by al Qaeda in traveling to the United States and after their arrival in the United States. These hijackers flew to the United States from Dubai, United Arab Emirates:

• a. Satam al~Suqami and Waleed al-Shehri arrived in Orlando, Florida, on or about April 23, 2001;
• b. Majed Moqed and Ahmed al-Ghamdi arrived in the Washington, D.C. area, on or about May 2, 2001;
• c. Harnza al-Ghamdi, Ahmed al~Nami, and Mohand al-Shehri arrived in Miami, Florida, on or about May 28, 2001;
• d. Ahmad al-Haznawi and Wail al-Shehri arrived in Miami, Florida, on or about June 8, 2001;
• e. Fayez Banihammad and Saeed al-Ghamdi arrived in Orlando, Florida, on or about June 27, 2001; and
• f. Abdul Aziz al-Omari and Salem al-Hazmi arrived in New York, on or about June 29, 2001.

20. From in or about May 2001 through on or about September 10, 2001, hijackers in the United States prepared for the hijacking operation by, among other activities, taking additional flight training; taking fitness training; purchasing knives; studying cross-country commercial flights; meeting overseas with al Qaeda leadership; and coordinating activities and locations in the United States.

21. From on or about August 25, 2001, through on or about August 31, 2001, 19 hijackers purchased or reserved tickets for the flights that they would hijack. In early September 2001, hijackers sent surplus funds overseas to al Qaeda.

22. On September 11, 2001, co-conspirators Mohamed Atta, Abdul Aziz al-Omari, Wail al-Shehri, Waleed al-Shehri, and Satam al-Suqami hijacked American Airlines Flight 11, bound from Boston to Los Angeles, and flew it into the North Tower of the World Trade Center in New York City.

23. On September 11, 2001, co-conspirators Marwan al-Shehhi, Fayez Banihammad, Ahmed al-Ghamdi, Hamza al-Ghamdi, and Mohand al-Shehri hijacked United Airlines Flight 175, bound from Boston to Los Angeles, and flew it into the South Tower of the World Trade Center in New York City.

24. On September 11, 2001, co-conspirators Hani Hanjour, Khalid al- Mihdhar, Nawaf al-Hazmi, Salem al-Hazmi, and Majed Moqed hijacked American Airlines Flight 77, bound from Virginia to Los Angeles, and flew it into the Pentagon.

25. On September 11, 2001, co-conspirators Ziad Jarrah, Ahmed al-Haznawi, Saeed al-Ghamdi, and Ahmed al-Nami hijacked United Airlines Flight 93, bound from Newark to San Francisco, and after resistance from the passengers, crashed it in Somerset County, Pennsylvania. (In this Indictment, each hijacker will be identified with the flight number of the plane he hijacked.)

The Defendants

26. KHALID SHEIKH MOHAMMED, the defendant, was closely associated with Usama Bin Laden, participated in the formulation of the plot resulting in the September 11, 2001 attacks, and was the plot’s operational leader.

27. WALID BIN ATTASH, the defendant, was closely associated with Usama Bin Laden and participated in the plot resulting in the September 11, 2001 attacks by, among other things, collecting information on matters related to airport and airplane security measures.

28. RAMZI BIN AL-SHIBH, the defendant, tried to become one of the pilot hijackers, but failed to obtain a visa for entry into the United States; instead, BIN AL-SHIBH managed the plot resulting in the September 11, 2001 attacks by, among other things, sending money to hijackers in the United States from abroad.

29. ALI ABDUL AZIZ ALI, the defendant, facilitated the plot resulting in the September 11, 2001 attacks by, among other things, sending money to hijackers in the United States from abroad.

30. MUSTAFA AL-HAWSAWI, the defendant, facilitated the plot resulting in the September 11, 2001 attacks by, among other things, helping the hijackers travel to the United States and facilitating their efforts upon arrival.

The Charge

31. From in or about 1999 until on or about March 1, 2003, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, and MUSTAFA AL-HAWSAWI, the defendants, and others known and unknown, in circumstances involving conduct transcending national boundaries, and in which the mail and facilities of interstate and foreign commerce were used in furtherance of the offense, the offense obstructed, delayed, and affected interstate and foreign commerce, the victim was the United States Government, members of the uniformed services, and officials, officers, employees, and agents of the governmental branches, departments, and agencies of the United States, and the structures, conveyances, and other real and personal property were, in whole and in part, owned, possessed, and leased to the United States and its departments and agencies, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed to violate Title 18, United States Code, Section 2332b(a).

32. It was a part and an object of the conspiracy that the defendants, and others known and unknown, would and did kill, maim and assault resulting in serious bodily injury persons within the United States, in violation of Title 18, United States Code, Sections 32, 34, 111, 114, 1111, and 1114; Title 49, United States Code, Section 46502(a); New York Penal Law Sections 120.10, 120.11, and 125.27; and 18 Pa. Cons. Stat. Ann. Section 2502, to wit, the murder on and after September 11, 2001, of the 2,976 persons named on pages 45 through 80 of this Indictment, and the maiming of and serious bodily injury to hundreds more.

33. It was a further part and object of the conspiracy that the defendants, and others known and unknown, would and did create a substantial risk of serious bodily injury to other persons by destroying and damaging structures, conveyances, and other real and personal property within the United States, in violation of Title 18, United States Code, Sections 32, 34, and 844(f) and (i); New York Penal Law Sections 150.20 and 120.25; and 18 Pa. Cons. Stat. Ann. Sections 3301 and 3302(a), to wit, the destruction and damage of four commercial airplanes in New York, Virginia, and Pennsylvania; the Twin Towers of the World Trade Center and surrounding structures and property in New York City; and the Pentagon in Arlington, Virginia, resulting in the deaths on and after September 11, 2001, of the 2,976 persons named on pages 45 through 80 of this Indictment.

Overt Acts

34. In furtherance of the conspiracy, and to effect its illegal objects, the defendants, and others known and unknown, committed the following overt acts, among others, in the Southern District of New York and elsewhere:

Origin of the Plot

35. In or before 1999, in Afghanistan, KHALID SHEIKH MOHAMMED proposed to Usama Bin Laden a terrorist plot that would use airplanes as missiles to crash into buildings.

36. Thereafter, in or about 1999, in Afghanistan, KHALID SHEIKH MOHAMMED discussed with Usama Bin Laden and members of al Qaeda’s “military committee” a plot in which al Qaeda operatives would hijack commercial airplanes and fly them into prominent buildings in the United States and elsewhere.

MOHAMMED Trains Hijackers

37. In or about 1999 and 2000, in Afghanistan and Pakistan, KHALID SHEIKH MOHAMMED trained the hijackers to use short-bladed knives by killing sheep and camels.

38. In or about 1999 and 2000, in Afghanistan and Pakistan, KHALID SHEIKH MOHAMMED trained the hijackers on how to conceal short-bladed knives through airport security.

39. In or about 1999 and 2000, in Afghanistan and Pakistan, KHALID SHEIKH MOHAMMED instructed the hijackers to obtain driver’s licenses when they arrived in the United States to facilitate their travel and lodging.

Co-Conspirators Seek U.S. Visas

40. On or about April 3, 1999, in Yemen, WALID BIN ATTASH applied for a U.S.-entry visa, using the name “Salah Saeed Mohammed Bin Yousaf,” which application was denied.

41. On or about the same day, April 3, 1999, in Jeddah, Saudi Arabia, Nawaf al-Hazmi (AA 77) applied for a U.S.-entry visa, which application was granted.

42. On or about April 7, 1999, in Jeddah, Saudi Arabia, Khalid al-Mihdhar (AA 77) applied for a U.S.-entry visa, which application was granted.

BIN ATTASH Tests Aviation Security

43. On or about December 31, 1999, WALID BIN ATTASH flew in first class on a United Airlines flight from Bangkok, Thailand, to Hong Kong, under the name “Saeed Mohammed Yousuf.”

44. On or about January 1, 2000, WALID BIN ATTASH flew in first class on a United Airlines flight from Hong Kong to Bangkok, Thailand, under the name “Saeed Mohammed Yusuf.”

45. On one and both of the United Airlines flights referred to in the preceding two paragraphs, WALID BIN ATTASH possessed a pocket knife and approached the cockpit to test security measures on the airplane.

46. In January 2000, WALID BIN ATTASH smuggled through airport security in Malaysia a Leatherman-type short-bladed knife.

47. On or about January 2, 2000, WALID BIN ATTASH flew from Bangkok, Thailand, to Kuala Lumpur, Malaysia, under the name “Saleh Saeed Mohammed Binyousaf.”

48. On or about January 5, 2000, Khalid al-Mihdhar (AA 77) flew from Dubai, United Arab Emirates, to Kuala Lumpur, Malaysia.

49. On or about January 8, 2000, WALID BIN ATTASH, using the name “Salah Saeed Mohammed”; Nawaf al-Hazmi (AA 77); and Khalid al-Mihdhar (AA 77) flew from Kuala Lumpur, Malaysia, to Bangkok, Thailand, on the same flight, seated in the same row of the airplane.

50. On or about January 15, 2000, Nawaf al-Hazmi (AA 77) and Khalid al~ Mihdhar (AA 77) flew on the same United Airlines flight from Bangkok, Thailand, to Los Angeles, California, through Hong Kong.

51. On or about January 20, 2000, WALID BIN ATTASH flew from Bangkok, Thailand, to Karachi, Pakistan, under the name “Saleh Saeed Mohammed Binyousaf.”

The Hamburg Cell

52. In or about 1999, RAMZI BIN AL-SHIBH, Mohamed Atta (AA 11), Marwan al-Shehhi (UA 175), Ziad Jarrah (UA 93), and others, were associated together in Hamburg, Germany.

53. On or about November 25, 1999, Ziad Jarrah (UA 93) flew from Hamburg, Germany, to Karachi, Pakistan, through Istanbul, Turkey.

54. On or about November 29, 1999, Mohamed Atta (AA 11) flew from Hamburg, Germany, to Karachi, Pakistan, through Istanbul, Turkey.

55. On or about December 6, 1999, RAMZI BIN AL-SHIBH flew from Hamburg, Germany, to Karachi, Pakistan, through Istanbul, Turkey.

56. In or about January 2000, RAMZI BIN AL-SHIBH, Mohamed Atta (AA 11), Mohand al-Shehri (UA 175), Ahmed al-Ghamdi (UA 175), and Saeed al-Ghamdi (UA 93) were together at an al Qaeda facility in the vicinity of Kandahar, Afghanistan.

57. On or about January 3, 2000, ALI ABDUL AZIZ ALI helped Marwan al-Shehhi (UA 175) obtain a Boeing 767-300 flight deck video.

58. On or about January 4, 2000, ALI ABDUL AZIZ ALI helped Marwan al- Shehhi (UA 175) obtain a Boeing 747 flight simulator software program.

59. On or about January 18, 2000, in Dubai, United Arab Emirates, Marwan al-Shehhi (UA 175) was issued a U.S.-entry visa.

60. On or about May 18, 2000, in Berlin, Germany, Mohamed Atta (AA 11) was issued a U.S.-entry visa.

61. On or about May 25, 2000, in Berlin, Germany, Ziad Jarrah (UA 93) was issued a U.S.-entry visa.

62. On or about May 29, 2000, Marwan al-Shehhi (UA 175) flew from Brussels, Belgium, to Newark, New Jersey.

63. On or about June 3, 2000, Mohamed Atta (AA 11) flew from Prague, Czech Republic, to Newark, New Jersey.

64. On or about June 27, 2000, Ziad Jarrah (UA 93) flew from Munich, Germany, to Atlanta, Georgia.

65. From late June 2000 through early December 2000, Ziad Jarrah (UA 93) received flight training at the Florida Flight Training Center in Venice, Florida.

66. From early July 2000 through mid-December 2000, Mohamed Atta (AA 11) and Marwan al-Shehhi (UA 175) received flight training at Huffman Aviation in Venice, Florida.

BIN AL-SHIBH Tries to Join Hijackers

67. On or about May 17, 2000, in Berlin, Germany, RAMZI BIN AL-SHIBH applied for a U.S.-entry visa, which application was denied.

68. On or about June 15, 2000, in Berlin, Germany, RAMZI BIN AL-SHIBH applied for a U.S.-entry visa, which application was denied.

69. On or about August 9, 2000, RAMZI BIN AL-SHIBH applied to enroll in a pilot training course at the Florida Flight Training Center in Venice, Florida.

70. On or about August 14, 2000, RAMZI BIN AL-SHIBH arranged to wire money from his account in Germany to the account of the Florida Flight Training Center in Venice, Florida.

71. In or about August 2000, Ziad Jarrah (UA 93) attempted to enroll RAMZI BIN AL-SHIBH in the Florida Flight Training Center in Venice, Florida.

72. On or about September 15, 2000, in Sana’a, Yemen, RAMZI BIN AL- SHIBH applied for a U.S.-entry visa, which application was denied.

73. On or about October 25, 2000, in Berlin, Germany, RAMZI BIN AL- SHIBH applied for a U.S.-entry visa, which application was denied.

MOHAMMED Deputizes BIN AL-SHIBH

74. In early- to mid-2000, KHALID SHEIKH MOHAMMED directed RAMZI BIN AL-SHIBH to serve as an intermediary between MOHAMMED and the hijackers.

Overseas Financing

75. On or about April 16, 2000, in Dubai, United Arab Emirates, ALI ABDUL AZIZ ALI, using the name “Ali,” wired $5,000 to a bank account in California.

76. On or about June 13, 2000, in Hamburg, Germany, RAMZI BIN AL- SHIBH transferred approximately $2,700 to Marwan al-Shehhi (UA 175) in Manhattan, New York.

77. On or about June 21, 2000, in Hamburg, Germany, RAMZI BIN AL- SHIBH transferred approximately $1,800 to Marwan al-Shehhi (UA 175) in Manhattan, New York.

78. On or about June 29, 2000, in Dubai, United Arab Emirates, ALI ABDUL AZIZ ALI, using the name “Isam Mansar,” transferred $5,000 to Marwan al-Shehhi (UA 175) in Manhattan, New York.

79. On or about July 18, 2000, in Dubai, United Arab Emirates, ALI ABDUL AZIZ ALI, using the name “Isam Mansur,” transferred approximately $10,000 into a Florida SunTrust bank account in the names of Mohamed Atta (AA 11) and Marwan al-Shehhi (UA 175).

80. On or about July 26, 2000, in Hamburg, Germany, RAMZI BIN AL- SHIBH transferred approximately $1,700 to Marwan al-Shehhi (UA 375) in Florida.

81. On or about August 5, 2000, in Dubai, United Arab Emirates, ALI ABDUL AZIZ ALI, using the name “Isam Mansour,” transferred approximately $9,500 into a Florida SunTrust bank account in the names of Mohamed Atta (AA 11) and Marwan al-Shehhi (UA 175).

82. On or about August 29, 2000, in Dubai, United Arab Emirates, ALI ABDUL AZIZ ALI, using the name “Mr. AH,” transferred approximately $20,000 into a Florida SunTrust bank account in the names of Mohamed Atta (AA 11) and Marwan al-Shehhi (UA 175).

83. On or about September 17, 2000, in Dubai, United Arab Emirates, ALI ABDUL AZIZ ALI, using the name “HANI (Fawaz TRDNG),” transferred approximately $70,000 into a Florida SunTrust bank account in the names of Mohamed Atta (AA 11) and Marwan al-Shehhi (UA 175).

84. On or about September 26, 2000, in Hamburg, Germany, RAMZI BIN AL-SHIBH transferred approximately $4,100 to Marwan al-Shehhi (UA 175) in Florida.

MOHAMMED Manages the Plot

85. Beginning in or about April 2001, KHALID SHEIKH MOHAMMED directed the funding and logistical support of the hijackers by instructing RAMZI BIN AL- SHIBH, ALI ABDUL AZIZ ALI, and MUSTAFA AL-HAWSAWI to coordinate the movement of hijackers to the United States through the United Arab Emirates.

86. For example, in mid-April 2001, KHALID SHEIKH MOHAMMED coached RAMZI BIN AL-SHIBH on cover stories that he could teach a hijacker to use to avoid detection by border security.

87. In or about mid-April 2001, KHALID SHEIKH MOHAMMED instructed RAMZI BIN AL-SHIBH and ALI ABDUL AZIZ ALI to send tens of thousands of dollars to the hijackers already in the United States, but to send the money in multiple transfers of smaller amounts, so as to avoid detection and loss of the funds.

88. In or about mid-April 2001, KHALID SHEIKH MOHAMMED expressed frustration to RAMZI BIN AL-SHIBH that a hijacker was not traveling to the United States sooner.

89. In or about mid-April 2001, KHALID SHEIKH MOHAMMED directed MUSTAFA AL-HAWSAWI to gather certain materials when AL-HAWSAWI traveled to Kuwait.

90. In or about mid-April 2001, KHALID SHEIKH MOHAMMED advised RAMZI BIN AL-SHIBH that hijackers traveling through the United Arab Emirates at that time should contact ALI ABDUL AZIZ ALI while MUSTAFA AL-HAWSAWI was traveling.

91. In mid- to late-April 2001, through RAMZI BIN AL-SHIBH and MUSTAFA AL-HAWSAWI, KHALID SHEIKH MOHAMMED monitored the progress of a hijacker as he traveled to a country where he would apply for a new passport and a U.S.-entry visa.

92. In or about late April 2001, KHALID SHEIKH MOHAMMED asked RAMZI BIN AL-SHIBH whether hijackers in the United States had met to coordinate with each other and with other hijackers who were arriving in the United States.

93. In or about late April 2001, KHALID SHEIKH MOHAMMED advised RAMZI BIN AL-SHIBH that he would soon be sending more hijackers to assist Mohamed Atta (AA 11) in the United States.

AZIZ ALI Maintains Contact With Hijackers

94. From 2000 through in or about June 2001, hijackers in the United States placed approximately 35 telephone calls to numbers associated with ALI ABDUL AZIZ ALI.

Arrival of Additional Hijackers

95. On or about April 23, 2001, Satam al-Suqami (AA 11) and Waleed al- Shehri (AA 11) flew from Dubai, United Arab Emirates, to Orlando, Florida.

96. On or about May 2, 2001, Majed Moqed (AA 77) and Ahmed al-Ghamdi (UA 175) flew from Dubai, United Arab Emirates, to Dulles Airport in Virginia.

97. On or about May 28, 2001, Hamza al-Ghamdi (UA 175), Ahmed al-Nami (UA 93), and Mohand al-Shehri (UA 175) flew from Dubai, United Arab Emirates, to Miami, Florida.

98. On or about June 8, 2001, Ahmad al-Haznawi (UA 93) and Wail al-Shehri (AA 11) flew from Dubai, United Arab Emirates, to Miami, Florida.

99. On or about June 27, 2001, Fayez Banihammad (UA 175) and Saeed al- Ghamdi (UA 93) flew from Dubai, United Arab Emirates, to Orlando, Florida.

100. In making reservations for the flight referred to in the preceding paragraph, Fayez Banihammad (UA 175) and Saeed al-Ghamdi (UA 93) each provided the contact telephone number 0505209905, a cellular telephone associated with MUSTAFA AL-HAWSAWI (the “AL-HAWSAWI Phone”).

101. On or about June 29, 2001, Abdul Aziz al~Omari (AA 11) and Salem al~ Hazmi (AA 77) flew from Dubai, United Arab Emirates, to New York.

102. In making reservations for the flight referred to in the preceding paragraph, Abdul Aziz al-Omari (AA 11) and Salem al-Hazmi (AA 77) each provided the AL-HAWSAWI Phone as a contact telephone number.

103. On or about July 4, 2001, Khalid al-Mihdhar (AA 77) flew from Riyadh, Saudi Arabia, to New York.

BIN ATTASH Videotapes Hijacker’s Martyr Will

104. Before July 4, 2001, in an overseas location, WALID BIN ATTASH videotaped Khalid al-Mihdhar (AA 77) reading a martyr will.

AL-HAWSAWI’s Support of Banihammad

105. On or about June 25, 2001, MUSTAFA AL-HAWSAWI opened fixed deposit, current, and credit card accounts at a Standard Chartered Bank branch in Sharjah, United Arab Emirates (collectively, the “AL-HAWSAWI Accounts”).

106. On or about June 25, 2001, at the Standard Chartered Bank branch referred to in the preceding paragraph, Fayez Banihammad (UA 175) opened fixed deposit, current, and credit card accounts (collectively, the “Banihammad Accounts”).

107. On or about June 25, 2001, Fayez Banihammad (UA 175) gave MUSTAFA AL-HAWSAWI written authority to pick up items connected to the Banihammad Accounts, namely, ATM and Visa cards, and associated access codes.

108. On or about July 23, 2001, MUSTAFA AL-HAWSAWI caused the Visa card connected to the Banihammad Accounts to be shipped from the United Arab Emirates to Fayez Banihammad (UA 175) in Florida.

109. On or about August 1, 2001, the Visa card connected to the Banihammad Accounts was used to make three ATM withdrawals in North Boca Raton, Florida.

110. On or about August 21, 2001, approximately $4,900 was deposited into the Banihammad Accounts in Sharjah, United Arab Emirates.

111. On or about August 22, 2001, the Visa card connected to the Banihammad Accounts was used to withdraw approximately $4,800 at a bank in Boynton Beach, Florida, in the vicinity of where Fayez Banihammad (US 175) was living.

AL-HAWSAWI Maintains Contact With Hijackers

112. From in or about July 2001 through and including September 11, 2001, hijackers in the United States placed approximately 50 telephone calls to numbers associated with MUSTAFA AL-HAWSAWI.

Cross-Country Surveillance Flights

113. In or about May 2001, KHALID SHEIKH MOHAMMED instructed Mohamed Atta (AA 11) and Marwan al-Shehhi (UA 175) to take cross-country flights to study in-flight security measures.

114. On or about May 24, 2001, Marwan al-Shehhi (UA 175) flew first class from New York to San Francisco.

115. On or about June 7, 2001, Ziad Jarrah (UA 93) flew first class from Hanover, Maryland, to Los Angeles.

116. On or about June 28, 2001, Mohamed Atta (AA 11) flew first class from Boston to San Francisco.

117. On or about July 31, 2001, Waleed al-Shehri (AA 11) flew first class from Boston to San Francisco.

118. On or about August 13, 2001, Hani Hanjour (AA 77) flew first class from Washington, D.C., to Los Angeles.

BIN AL-SHIBH Maintains Contact With Hijackers

119. In or about July 2001, hijackers in the United States placed more than 70 telephone calls to numbers associated with RAMZI BIN AL-SHIBH.

The Spain Meeting

120. On or about July 7, 2001, Mohamed Atta (AA 11) flew from Miami, Florida, to Zurich, Switzerland.

121. On or about July 8, 2001, Mohamed Atta (AA 11) flew from Zurich, Switzerland, to Madrid, Spain.

122. On or about July 8, 2001, in Hamburg, Germany, RAMZI BIN AL-SHIBH purchased an airline ticket to Tarragona, Spain.

123. From on or about July 9, 2001, through on or about July 16, 2001, RAMZI BIN AL-SHIBH and Mohamed Atta (AA 11) were in Tarragona, Spain, where they met and discussed, among other aspects of the plot, potential targets for the hijacking attacks.

124. After leaving Spain, RAMZI BIN AL-SHIBH reported to KHALID SHEIKH MOHAMMED about the meeting with Mohamed Atta (AA 11).

125. Thereafter, KHALID SHEIKH MOHAMMED instructed RAMZI BIN AL-SHIBH and MUSTAFA AL-HAWSAWI to take the actions described below, in paragraphs 128 through 131.

MOHAMMED Applies for U.S. Visa

126. On or about July 23, 2001, in Jeddah, Saudi Arabia, KHALID SHEIKH MOHAMMED applied for a U.S.-entry visa, using the name “Abdulrahman A.A. Al-Ghamdi,” which application was denied.

Jarrah Travels to Germany

127. On or about July 25, 2001, Ziad Jarrah (UA 93) traveled from the United States to Germany.

Money Transfers to Moussaoui

128. On or about July 30, 2001, MUSTAFA AL-HAWSAWI, using the name ”Hashem Abderahman,” sent $5,000 from the United Arab Emirates to RAMZI BIN AL-SHIBH, who received the money in Hamburg, Germany, using the name “Ahad Abdollahi Sabet.”

129. On or about July 31, 2001, MUSTAFA AL-HAWSAWI, using the name ”Hashim Abdourahman,” sent $10,000 from the United Arab Emirates to RAMZI BIN AL- SHIBH, who received the money in Hamburg, Germany, using the name “Ahad Abdollani Sabet.”

130. On or about August 1, 2001, RAMZI BIN AL-SHIBH, using the name “Ahad Abdollahi Sabet,” sent approximately $10,000 from Dusseldorf, Germany, to Zacarias Moussaoui in Oklahoma.

131. On or about August 3, 2001, RAMZI BIN AL-SHIBH, using the name “Ahad Abdollahi Sabet,” sent approximately $4,000 from Hamburg, Germany, to Zacarias Moussaoui in Oklahoma.

Co-Conspirator Tries to Enter the United States

132. On or about August 4, 2001, a co-conspirator not named as a defendant herein (“Co-Conspirator 1″) flew from Dubai, United Arab Emirates, to Orlando International Airport, in Florida.

133. In making reservations for the flight referred to in the preceding paragraph, Co-Conspirator 1 provided the AL-HAWSAWI Phone as a contact telephone number.

134. At or about the time of Co-Conspirator 1 ‘s arrival, Mohamed Atta (AA 11) was at the Orlando International Airport, where he placed calls to the AL-HAWSAWI Phone.

135. Later that day, Co-Conspirator 1 was denied entry into the United States and took a return flight to Dubai through London.

The Las Vegas Meeting

136. In summer 2001, KHALID SHEIKH MOHAMMED instructed some of the hijackers to meet in Las Vegas to make final preparations.

137. On or about August 13, 2001, Mohamed Atta (AA 11) flew from Reagan National Airport in Virginia to Las Vegas, Nevada.

138. On or about August 13, 2001, Hani Hanjour (AA 77) and Nawaf al-Hazmi (AA 77) flew together from Virginia to Las Vegas, Nevada.

Purchases of Knives

139. On or about August 3, 2001, in Oklahoma City, Oklahoma, Zacarias Moussaoui purchased two knives.

140. On or about August 13, 2001, in Boynton Beach, Florida, Marwan al-Shehhi (UA 175) purchased two knives.

141. On or about August 13, 2001, in Boynton Beach, Florida, Fayez Banihammad (UA 175) purchased a knife set.

142. On or about August 16, 2001, in Eagan, Minnesota, Zacarias Moussaoui was in possession of a Leatherman-type short-bladed knife set.

143. On or about August 27, 2001, in Laurel, Maryland, Nawaf al-Hazmi (AA 77) purchased a Leatherman-type short-bladed knife set.

144. On or about August 30, 2001, in Boynton Beach, Florida, Hamza al-Ghamdi (UA 175) purchased a Leatherman-type short-bladed knife set.

Attack Date Is Communicated to al Qaeda Leadership

145. In late August 2001, KHALID SHEIKH MOHAMMED was advised of the date that the hijacking attacks would be carried out, and MOHAMMED notified Usama Bin Laden of it.

146. In early September 2001, in Afghanistan, WALID BIN ATTASH was advised of the date that the hijacking attacks would be carried out.

AZIZ ALI Tries to Join Hijackers

147. On or about August 27, 2001, in the United Arab Emirates, ALI ABDUL AZIZ ALI applied for a U.S.-entry visa, which application was denied. On the application, AZIZ ALI indicated that he expected to travel to the United States on September 4, 2001, and that he expected to stay “one week” (i.e., until September 11, 2001).

148. Shortly thereafter, when KHALID SHEIKH MOHAMMED learned that ALI ABDUL AZIZ ALPs application for a visa had been denied, MOHAMMED sent a message that AZIZ ALI should travel to meet MOHAMMED.

Hijackers Return Excess Funds

149. On or about September 4, 2001, Mohamed Atta (AA 11) sent a package via Federal Express to a post office box in the United Arab Emirates used by MUSTAFA AL- HAWSAWI.

150. On or about September 5, 2001, Fayez Banihammad (UA 175) wired approximately $8,000 from his Florida SunTrust account to the Banihammad Accounts over which MUSTAFA AL-HAWSAWI had authority and control.

151. On or about September 8, 2001, Mohamed Atta (AA 11) wired approximately $2,860 to “Mustafa Ahmed” in the United Arab Emirates.

152. On or about September 8, 2001, Mohamed Atta (AA 11) wired $5,000 to “Mustafa Ahmed” in the United Arab Emirates.

153. On or about September 9, 2001, Waleed al-Shehri (AA 11) wired $5,000 to “Ahanad Mustafa” in the United Arab Emirates.

154. On or about September 10, 2001, Marwan al-Shehhi (UA 175) wired $5,400 to “Mustafa Ahmad” in the United Arab Emirates.

155. On or about September 10, 2001, Nawaf al-Hazmi (AA 77) mailed the ATM card for the First Union bank account of Khalid al-Mihdhar (AA 77) to a post office box used by MUSTAFA AL-HAWSAWI in the United Arab Emirates. Al-Mihdhar’s account had a balance of approximately $10,000 at the time.

156. On or about September 11, 2001, in the United Arab Emirates, approximately $16,348 was deposited into the AL-HAWSAWI Accounts.

BIN AL-SHIBH Flees

157. On or about September 3, 2001, in Germany, RAMZI BIN AL-SHIBH, using the name “Ahad Abdoflahi Sabet,” received $1,500 that was sent by MUSTAFA AL- HAWSAWI, using the name “Hashem Abdollahi.”

158. On or about September 5, 2001, RAMZI BIN AL-SHIBH traveled from Dusseldorf, Germany, to Madrid, Spain, and did not return to Germany.

159. On or shortly before September 9, 2001, RAMZI BIN AL-SHIBH was in Dubai, United Arab Emirates, where he instructed ALI ABDUL AZIZ ALI and MUSTAFA AL- HAWSAWI to depart the United Arab Emirates.

160. On or shortly before September 11, 2001, RAMZI BIN AL-SHIBH departed the United Arab Emirates.

161. On or about September 12, 2001, RAMZI BIN AL-SHIBH was in Afghanistan.

AZIZ ALI Flees

162. On or about September 9, 2001, in the United Arab Emirates, ALI ABDUL AZIZ ALI made a one-way reservation to travel from Dubai to Karachi, Pakistan.

163. On or about September 10, 2001, in the United Arab Emirates, ALI ABDUL AZIZ ALI withdrew nearly all the balance from two bank accounts.

164. Later on or about September 10, 2001, ALI ABDUL AZIZ ALI flew from Dubai to Karachi, Pakistan, on a one-way ticket.

AL-HAWSAWI Flees

165. On or about September 11, 2001, in the United Arab Emirates, at about 9:22 a.m. local time (the early morning hours of Eastern Daylight Time), MUSTAFA AL- HAWSAWI moved approximately $6,534 of the $8,000 in the Banihammad Accounts into the AL-HAWSAWI Accounts, using a check dated September 10, 2001; AL-HAWSAWI then withdrew approximately $1,361, nearly all the remaining balance in the Banihammad Accounts, by ATM cash withdrawal.

166. On or about September 11, 2001, in the United Arab Emirates, approximately $40,871 was prepaid to a Visa card connected to the AL-HAWSAWI Accounts.

167. On or about September 11, 2001, MUSTAFA AL-HAWSAWI left the United Arab Emirates for Pakistan.

The September 11. 2001 Terrorist Attacks

168. On September 11, 2001, the hijackers possessed a handwritten set of final instructions for a martyrdom operation using knives on an airplane.

169. On September 11, 2001, Mohamed Atta, Abdul Aziz al-Omari, Satam al-Suqarni, Waleed al-Shehri, and Wail al-Shehri hijacked American Airlines Flight 11, a Boeing 767, which had departed from Boston bound for Los Angeles at 7:59 a.m. They flew Flight 11 into the North Tower of the World Trade Center in Manhattan at 8:46 a.m., causing the collapse of the tower, great damage and destruction to other structures and property, and injury and death to thousands of persons.

170. On September 11, 2001, Marwan al-Shehhi, Hamza al-Ghamdi, Fayez Banihammad, Mohand al-Shehri, and Ahmed al-Ghamdi hijacked United Airlines Flight 175, a Boeing 767, which had departed from Boston bound for Los Angeles at 8:14 a.m. They flew Flight 175 into the South Tower of the World Trade Center in Manhattan at 9:03 a.m., causing the collapse of the tower, great damage and destruction to other structures and property, and injury and death to thousands of persons.

171. On September 11, 2001, Hani Hanjour, Khalid al-Mihdhar, Majed Moqed, Nawaf al-Hazmi, and Salem al-Hazmi hijacked American Airlines Flight 77, a Boeing 757, which had departed from Virginia bound for Los Angeles at 8:20 a.m. They flew Flight 77 into the Pentagon in Virginia at 9:37 a.m., causing great damage and destruction to property and injury and death to hundreds of persons.

172. On September 11, 2001, Ziad Jarrah, Saeed al-Ghamdi, Ahmed al-Nami, and Ahmed al-Haznawi hijacked United Airlines Flight 93, a Boeing 757, which had departed from Newark, New Jersey, bound for San Francisco at 8:42 a.m. After resistance by the passengers, the hijackers crashed Flight 93 in Somerset County, Pennsylvania, at approximately 10:03 a.m., killing all on board.

Bin Laden and BIN ATTASH Hear News of the Attacks

173. On September 11, 2001, WALID BIN ATTASH was with Usama Bin Laden in Afghanistan when they heard for the first time that airplanes had struck the World Trade Center.

174. Shortly thereafter, Usama Bin Laden instructed WALID BIN ATTASH to travel to the Tora Bora region of Afghanistan and prepare the area by digging trenches and stockpiling food, weapons, and ammunition.

Withdrawals of Hijackers’ Excess Funds

175. On or about August 25,2001, in the United Arab Emirates, MUSTAFA AL-HAWSAWI applied for a supplemental Visa card connected to the AL-HAWSAWI Accounts, which application was made in the name “Abdulrahman Abdullah al-Ghamdi,” an alias used by KHALID SHEIKH MOHAMMED. The application was supported by documentation associated with MOHAMMED, including his photograph.

176. On or about September 13, 2001, the supplemental Visa card connected to the AL-HAWSAWI Accounts was used to make six ATM withdrawals in Karachi, Pakistan.

Post-Attack Propaganda and Efforts to Avoid Capture

177. On or about October 7, 2001, a video was aired on the Al-Jazeera satellite television channel in which Usama Bin Laden praised the September 11, 2001 attacks.

178. After September 11, 2001, RAMZI BIN AL-SHIBH and MUSTAFA AL- HAWSAWI met with Usama Bin Laden in Afghanistan. The meeting was videotaped.

179. On or about September 10, 2002, Usama Bin Laden videotaped a message in which he identified the 19 hijackers by name and “kunya.”

180. On or about March 1, 2003, KHALID SHEIKH MOHAMMED and MUSTAFA AL-HAWSAWI were present at a safe house where they possessed false identification and materials related to al Qaeda and the planning and execution of the September 11, 2001 attacks.

(Title 18, United States Code, Section 2332b(a)(2) & (c)(1)(a).)

COUNT TWO

Acts of Terrorism Transcending National Boundaries

The Grand Jury further charges:

181. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

182. From in or about 1999 until on or about September 11, 2001, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, and MUSTAFA AL-HAWSAWI, the defendants, and others known and unknown, in circumstances involving conduct transcending national boundaries, and in which the mail and facilities of interstate and foreign commerce were used in furtherance of the offense, the offense obstructed, delayed, and affected interstate and foreign commerce, the victim was the United States Government, members of the uniformed services, and officials, officers, employees, and agents of the governmental branches, departments, and agencies of the United States, and the structures, conveyances, and other real and personal property were, in whole and in part, owned, possessed, and leased to the United States and its departments and agencies, unlawfully, willfully, and knowingly (1) killed, maimed, and assaulted resulting in serious bodily injury thousands of persons within the United States, including the 2,976 murdered persons named on pages 45 through 80 of this Indictment, in violation of Title 18, United States Code, Sections 32, 34, 111, 114, 1111, and 1114; Title 49, United States Code, Section 46502(a); New York Penal Law Sections 120.10, 120.11, and 125.27; and 18 Pa. Cons. Stat. Ann. Section 2502, and (2) created a substantial risk of serious bodily injury to other persons by destroying and damaging structures, conveyances, and other real and personal property within the United States, namely, four commercial airplanes in New York, Virginia, and Pennsylvania; the Twin Towers of the World Trade Center and surrounding structures and property in New York City; and the Pentagon in Arlington, Virginia, in violation of Title 18, United States Code, Sections 32, 34, and 844(f) and (i); New York Penal Law Sections 150.20 and 120.25; and 18 Pa. Cons. Stat. Ann. Sections 3301 and 3302(a).

(Title 18, United States Code, Sections 2332b(a)(l) & (c)(1)(A) and 2.)

COUNT THREE

Conspiracy to Commit Violent Acts and Destroy Aircraft

The Grand Jury further charges:

183. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

184. From in or about 1999 until on or about March 1, 2003, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, and MUSTAFA AL-HAWSAWI, the defendants, and others known and unknown, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed to violate Title 18, United States Code, Section 32.

185. It was a part and an object of the conspiracy that the defendants, and others known and unknown, would and did destroy and wreck aircraft in the special aircraft jurisdiction of the United States, in violation of Title 18, United States Code, Section 32(a)(1), to wit, the hijacking and destruction of American Airlines Flight 11, United Airlines Flight 175, American Airlines Flight 77, and United Airlines Flight 93, resulting in the deaths on and after September 11, 2001, of the 2,976 persons named on pages 45 through 80 of this Indictment.

186. It was a further part and object of the conspiracy that the defendants, and others known and unknown, would and did perform acts of violence against and incapacitate individuals on aircraft in the special aircraft jurisdiction of the United States, so as likely to endanger the safety of such aircraft, in violation of Title 18, United States Code, Section 32(a)(5) (2001), to wit, the hijacking and destruction of American Airlines Flight 11, United Airlines Flight 175, American Airlines Flight 77, and United Airlines Flight 93, resulting in the deaths on and after September 11, 2001, of the 2,976 persons named on pages 45 through 80 of this Indictment.

Overt Acts

187. In furtherance of the conspiracy, and to effect its illegal objects, the defendants, and others known and unknown, committed the overt acts set forth in Count One of this Indictment, which are fully incorporated by reference.

(Title 18, United States Code, Sections 32(a)(7) (2001) and 34.)

COUNT FOUR

Violence on and Destruction of Aircraft

The Grand Jury further charges:

188. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

189. From in or about 1999 until on or about September 11, 2001, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AL-HAWSAWI, the defendants, and others known and unknown, unlawfully, willfully, and knowingly destroyed and wrecked aircraft in the special aircraft jurisdiction of the United States, and performed acts of violence against and incapacitated individuals on such aircraft, so as likely to endanger the safety of such aircraft, to wit, the hijacking and destruction of American Airlines Flight 11 and United Airlines Flight 175, resulting in the deaths on and after September 11, 2001, of the first 2,752 persons named on pages 45 through 80 of this Indictment.

(Title 18, United States Code, Sections 32(a)(1) & (5) (2001), 34, and 2.)

COUNT FIVE

Conspiracy to Commit Aircraft Piracy

The Grand Jury further charges:

190. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

191. From in or about 1999 until on or about March 1, 2003, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AL-HAWSAWI, the defendants, and others known and unknown, unlawfully, willfully, knowingly, and with wrongful intent, combined, conspired, confederated, and agreed to commit aircraft piracy, by seizing and exercising control of aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force and violence, and intimidation, to wit, the hijacking and destruction of American Airlines Flight 11, United Airlines Flight 175, American Airlines Flight 77, and United Airlines Flight 93, resulting in the deaths on and after September 11, 2001, of the 2,976 persons named on pages 45 through 80 of this Indictment.

Overt Acts

192. In furtherance of the conspiracy, and to effect its illegal objects, the defendants, and others known and unknown, committed the overt acts set forth in Count One of this Indictment, which are fully incorporated by reference.

(Title 49, United States Code, Section 46502(a)(1)(A) & (a)(2)(B).)

COUNT SIX

Aircraft Piracy

The Grand Jury further charges:

193. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

194. From in or about 1999 until on or about September 11, 2001, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AL-HAWSAWI, the defendants, and others known and unknown, unlawfully, willfully, knowingly, and with wrongful intent, committed aircraft piracy, by seizing and exercising control of aircraft in the special aircraft jurisdiction of the United States by force, violence, threat of force and violence, and intimidation, to wit, the hijacking and destruction of American Airlines Flight 11 and United Airlines Flight 175, resulting in the deaths on and after September 11, 2001, of the first 2,752 persons named on pages 45 through 80 of this Indictment.

(Title 49, United States Code, Sections 46502(a)(1)(A) & (a)(2)(B) and 2.)

COUNTS SEVEN AND EIGHT

Murder of United States Officers and Employees

The Grand Jury further charges:

195. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

196. From in or about 1999 until on or about September 11, 2001, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AL-HAWSAWI, the defendants, and others known and unknown, unlawfully, willfully, deliberately, with premeditation and malice aforethought, and perpetrated from a premeditated design unlawfully and maliciously to effect the death of a human being other than him who is killed, killed an officer and employee of the United States and agencies and branches thereof, while such officer and employee was engaged in, and on account of, the performance of official duties, to wit, the deaths of the following persons at the World Trade Center in New York City on September 11, 2001:

(Title 18, United States Code, Sections 1111, 1114 and 2.)

COUNT NINE

Destruction of the Twin Towers

The Grand Jury further charges:

197. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

198. From in or about 1999 until on or about September 11, 2001, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AL-HAWSAWI, defendants, and others known and unknown, unlawfully, maliciously, and knowingly damaged and destroyed, by means of fire and explosives, buildings, vehicles, and other real and personal property used in interstate and foreign commerce and in activities affecting interstate and foreign commerce, to wit, the destruction and damage of two commercial airplanes, the Twin Towers of the World Trade Center, and surrounding structures and property in New York City, resulting in the deaths on and after September 11, 2001, of the first 2,752 persons named on pages 45 through 80 of this Indictment, including hundreds of public safety officers performing duties as a direct and proximate result of the said damage and destruction.

(Title 18, United States Code, Sections 844(i) and 2.)

COUNT TEN

Al Qaeda Conspiracy to Kill Americans

The Grand Jury further charges:

199. The allegations in paragraphs 1 through 30 and 34 through 180 are repeated.

200. From in or about 1989 until the date of the filing of this Indictment, outside the United States, in the Southern District of New York and elsewhere, KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AL-HAWSAWI, the defendants, together with members of the terrorist group known as al Qaeda, affiliated terrorist organizations, and others known and unknown, unlawfully, willfully, and knowingly combined, conspired, confederated, and agreed together and with each other to kill nationals of the United States, in violation of Title 18, United States Code, Section 2332(b).

201. It was a part and an object of the conspiracy that the defendants, and others known and unknown, would and did murder United States nationals anywhere in the world, including the United States.

Overt Acts

202. In furtherance of the conspiracy, and to effect its illegal object, the defendants, and others known and unknown, committed the overt acts set forth in Count One of this Indictment, and the following overt acts, among others:

203. In mid-1999, KHALID SHEIKH MOHAMMED and Usama Bin Laden together visited a covert training facility in the vicinity of Kabul, Afghanistan, where trainees were prohibited from using their true names and the curriculum included instruction in surveillance, counter-surveillance, and assessment of potential targets for terrorist attack.

204. In or about January 2000, RAMZI BIN AL-SHIBH attended a speech given by Usama Bin Laden in the vicinity of Kandahar, Afghanistan.

205. In early- to mid-2000, in Karachi, Pakistan, KHALID SHEIKH MOHAMMED discussed United States interests in Australia as targets for a terrorist attack.

206. In or about mid-2001, in the vicinity of Kandahar, Afghanistan, WALID BIN ATTASH served as a member of Usama Bin Laden’s security detail.

207. In summer 2000, MUSTAFA AL-HAWSAWI was present in al Qaeda facilities in the vicinity of Kandahar, Afghanistan, including the place where the group conducted its “media” operation.

208. From at least in or about May 2001 until at least in or about October 2001, in the vicinity of Kandahar, Afghanistan and Karachi, Pakistan, KHALID SHEIKH MOHAMMED worked to influence media reports about issues of interest to al Qaeda.

209. In November and December 2001, in the vicinity of Kandahar, Afghanistan and Karachi, Pakistan, KHALID SHEIKH MOHAMMED and ALI ABDUL AZIZ ALI participated in a plot to attack airplanes bound for the United States with “shoe bombs.”

210. On or about April 29, 2003, in Pakistan, WALID BIN ATTASH possessed approximately 400 to 500 kilograms of explosives to be used to attack Americans.

(Title 18, United States Code, Section 2332(b)(2).)

Notice of Special Findings

a. The allegations of Counts One through Nine of this Indictment are hereby realleged as if fully set forth herein and incorporated by reference.

b. As to Counts One through Nine of this Indictment, the defendants KHALID SHEIKH MOHAMMED, WALID BIN ATTASH, RAMZI BIN AL-SHIBH, ALI ABDUL AZIZ ALI, MUSTAFA AL-HAWSAWI:

• (1) were more than 18 years of age at the time of the offense, (Title 18, United States Code, Section 3591(a));
• (2) intentionally killed the victims. (Title 18, United States Code, Section 3591(a)(2)(A));
• (3) intentionally inflicted serious bodily injury that resulted in the deaths of the victims. (Title 18, United States Code, Section 3591(a)(2)(B));
• (4) intentionally participated in an act, contemplating that the life of a person would be taken and intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victims died as a direct result of the acts. (Title 18, United States Code, Section 3591(a)(2)(C));
• (5) intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victims died as a direct result of the act. (Title 18, United States Code, Section 3591(a)(2)(D));
• (6) in committing the offenses described in Counts One through Nine of the Indictment, knowingly created a grave risk of death to one or more persons in addition to the victims of the offense. (Title 18, United States Code, Section 3592(c)(5));
• (7) committed the offenses described in Counts One through Nine in an especially heinous, cruel, and depraved manner in that they involved serious physical abuse to the victims. (Title 18, United States Code, Section 3592(c)(6));
• (8) committed the offenses described in Counts One through Nine after substantial planning and premeditation to cause the death of a person and commit an act of terrorism. (Title 18, United States Code, Section 3592(c)(9)); and
• (9) intentionally killed and attempted to kill more than one person in a single criminal episode. (Title 18, United States Code, Section 3592(c)(16).)

(Title 18, United States Code, Sections 3591 and 3592.)

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

After this first success with the cleared prisoners — blocking entry to the US for the Uighurs, Muslims from China’s Xinjiang province, who had been cleared for release by a US court — Republicans, and, to a lesser extent, dissenters within Obama’s own party, realized that the power to shape national security issues was in their hands, particularly when the magic word “Guantánamo” was invoked.

As a result, when a young Nigerian, apparently recruited in Yemen, tried to blow up a Detroit-bound plane on Christmas Day 2009, and the critics howled that no Yemenis in Guantánamo should be released, the President didn’t point out that this was unacceptable, and was, moreover, a call for him to endorse a policy of “guilt by nationality.” Instead, he immediately capitulated, imposing a moratorium on the release of Yemenis from Guantánamo that still stands 15 months later, and that, single-handedly, undermined the President’s own promise to close the prison.

A similar success for Obama’s critics took place after Attorney General Eric Holder announced on November 13, 2009 that Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, on the same day that he announced that five other men would face trials by Military Commission at Guantánamo.

Although this announcement went down well initially, with most of the complaints coming from critics of the Commissions — myself included — who were dismayed that Obama and Holder had brought the much-criticized military trial system back from the dead, a cynical backlash soon started against the proposed federal court trial for the alleged 9/11 co-conspirators. This was orchestrated by Keep America Safe, an organization founded by 9/11 widow Debra Burlingame, rightwing pundit William Krystol, and Liz Cheney, the daughter of former Vice President Dick Cheney, which might, more appropriately, have been called “Keep America Afraid.” However, it succeeded in its mission, because, predictably by now, when the critics’ complaints were loud enough, Obama again backed down, effectively shelving the plans, and leaving Holder looking foolish.

Nevertheless, the Attorney General at least maintained some principles. Aware of the significance of the trial of Khalid Sheikh Mohammed and his alleged co-conspirators, Holder told Jane Mayer of the New Yorker last February that he was “determined not to capitulate on the idea of holding a 9/11 trial.” Mayer’s report continued:

“I don’t apologize for what I’ve done,” he told me at one point. “History will show that the decisions we’ve made are the right ones.” Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as Attorney General.” But, he added, “between now and then I suspect we’re in for some interesting times.”

Those “interesting times” have seen Holder’s boss make no effort to fight back against his critics, so that, by the end of last year, supporters of Guantánamo in Congress were so emboldened, and so certain that Obama would do nothing to oppose them, that they inserted provisions into an important military spending bill explicitly prohibiting the administration from bringing Guantánamo prisoners to the US mainland to face a trial — specifically mentioning Khalid Sheikh Mohammed by name, in case anyone missed the point.

When the bill was passed, Obama could have vetoed it and fought to remove the offending provision, or he could, more contentiously, have issued a signing statement refusing to accept it, but predictably he did neither, meaning that Khalid Sheikh Mohammed and his co-accused would either remain in Guantánamo without facing a trial at all, or that the President would accept that he had been bullied into putting them forward for trial by Military Commission.

Announcing the bullying option on Monday, Eric Holder did not even bother to disguise his disappointment. He began by explaining that, when he had examined the best option for the trial in 2009, he had done so with an open mind, and had concluded that “the best venue for prosecution was in federal court.” He added, pointedly, “I stand by that decision today,” and then provided a compelling defense of the federal court decision:

[W]e were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators — one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor. We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws. We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence. Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Holder then proceeded to condemn Congress for interfering in the decision for political reasons, generously citing the President’s complaint that these “unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security,” but primarily expressing his own dismay far more eloquently, and inadvertently revealing how, in contrast, nothing that relates to Guantánamo is of particular importance to Obama, who has not spoken with conviction on the topic since becoming President:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Although Holder proceeded to express faith in the Commissions as a system capable of delivering justice, his preference for federal courts was apparent, as he launched into a passionate defense of federal court trials, which was prompted by “a number of unfair, and often unfounded, criticisms.” This was probably a reference to the way in which Republican critics tried to make political capital out of the federal court trial of Ahmed Khalfan Ghailani, the only Guantánamo prisoner brought to the US mainland (in May 2009), whose recent conviction and life sentence was portrayed by critics as a failure, because the judge barred the use of evidence derived through the use of torture (as he is required to do by law), and because the jury threw out all but one of the 285 counts against Ghailani.

In his defense of the federal court system, Holder wrote:

[F]ederal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.

In conclusion, Holder lamented that the 9/11 case “has been marked by needless controversy since the beginning.” As he proceeded to explain, “the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points,” but should “always [have] been about delivering justice for [the] victims of [9/11], and for their surviving loved ones. Nothing else.”

This is another poor day for justice, in an administration that has been marked by an absence of good news when it comes to dealing appropriately with national security issues. Eric Holder deserves only faint praise overall, because of the way in which he was evidently involved in sheltering Bush administration lawyers from prosecution for their involvement in the “torture memos” of August 2002, and for his failure to oversee the Guantánamo habeas legislation, which has proceeded as aggressively as if Bush was still in power. On the 9/11 trial, however, and through his obvious exasperation with a political climate in which terrorism — when related to Guantánamo — is shamelessly played by political opportunists or seized upon by rightwing ideologues who have whipped themselves up into an unseemly frenzy of hysteria and paranoia, Holder at least continues to express a belief in certain principles, however rmuch he has been obliged to ignore them.

Elsewhere in the administration, and particularly in the actions of Barack Obama, who has consistently failed to provide leadership when it is needed, there has not even been a glimmer of recognition that certain principles have been lost, and that, it seems to me, ought to be a cause for great concern as the cheerleaders for Guantánamo — and for the false thesis that terrorists are warriors who must be tried in war crimes trials — score another victory at Obama’s expense.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

Neither was surprising, because the President announced in May 2009, during a major speech on national security at the National Archives, that the Military Commissions were back on the table, joining federal court trials as an option for trying those held at Guantánamo, and in that same speech he also announced that some prisoners would continue to be held indefinitely without charge or trial.

The return of the Military Commissions

Since then, Military Commissions already established under President Bush have proceeded to trial — or, in fact, to plea deals instead of a trial — in the cases of three prisoners: Ibrahim al-Qosi in July last year, Omar Khadr in October, and Noor Uthman Muhammed last month, and it seems probable that the trials of three other men recommended for trial by Military Commission in November 2009 and January 2010 by Attorney General Eric Holder will now proceed swiftly.

These men are: Abd al-Rahim al-Nashiri, a Saudi, and the alleged mastermind of the al-Qaeda attack on the USS Cole in 2000; Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of involvement in an unrealized plot to attack a ship in the Strait of Hormuz; and Obaidullah, an Afghan accused of playing a peripheral role in the insurgency against US forces in Afghanistan. All the cases have problems — al-Darbi’s, because of his detailed allegations that he was subjected to torture; Obaidullah’s, because he was a nobody involved in an insurgency, and did nothing that could remotely be described as a war crime; and al-Nashiri’s, in particular, because, after his capture in the UAE in the fall of 2002, he was rendered to secret CIA prisons in Thailand and Poland, where he was subjected to the torture technique known as waterboarding, a form of controlled drowning.

In the case of al-Darbi and Obaidullah, it seems probable that the administration will avoid, in one case, a torture-laced legal minefield, and in the other, a demonstration of how, embarrassingly, to equate the pursuit of terrorists with a legitimate insurgency, by reaching plea deals. However, it seems unlikely that anyone in a position of authority would want to strike plea deal with al-Nashiri, given the severity of his alleged crimes and his alleged role in al-Qaeda, and if this is the case then the authorities will not only be obliged to sidestep any mention of his torture, which may be difficult as it was covered in the CIA Inspector General’s report on torture in 2004, and al-Nashiri has also been granted “victim” status in an ongoing investigation of the CIA’s torture prison in Poland.

Just as significant is the fact that an actual trial — rather than a plea deal — runs the very real risk of exposing that the supposed war crimes included in the Military Commissions — conspiracy and providing material support to terrorism, for example — are not legitimate war crimes at all, but were, instead, invented by Congress in 2006 and maintained, despite high-level criticism by Obama administration officials, when a revived version of the Commissions was approved by Congress in the Military Commissions Act of 2009.

Beyond these difficulties, where Obama’s announcement breaks new ground is in opening up the probability that many of the other 30 prisoners still held who were recommended for trials by the Task Force will also be tried by Military Commission – - perhaps even Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks. These men were put forward for federal court trials in November 2009, but the plans were shelved in the wake of a backlash by Republicans and members of Obama’s own party.

Personally, I think that the Military Commissions remain illegitimate, but given Congress’s refusal to allow any Guantánamo prisoners to be brought to the US mainland to face trials (which was included in a major military defense spending bill last December, and was a nakedly political move, as well as being blatantly unconstitutional), Military Commissions are, at present, the only option for trials available to the prisoners. Pragmatically, if these continue to involve plea deals in exchange for short sentences — and the administration honors those plea deals — then, despite being fundamentally flawed, they provide what may be the only way in which prisoners can ever leave Guantánamo.

To understand why this is the case, it is necessary to reflect on the fact that 89 of the remaining 172 prisoners were cleared for release by the Task Force, but are going nowhere either because they are Yemenis, and Obama issued a moratorium on the release of any of the 58 cleared Yemenis last January, after it was discovered that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen, or because they cannot be repatriated because they face the risk of torture of other ill-treatment in their home countries. These 31 men cannot be resettled in the US, because of opposition by the President, by the D.C. Circuit Court, and by Congress, and it is uncertain if third countries will be prepared to offer them new homes. As a result, all 89 prisoners appear to have less chance of leaving Guantánamo than their fellow prisoners who reach plea deals in their trials by Military Commission, and can, as I have been explaining all year, legitimately be described as political prisoners.

The executive order establishing a periodic review of the cases of 47 men designated for indefinite detention without charge or trial

Also less fortunate than those facing trials by Military Commission are the 47 men designated for indefinite detention without charge or trial. The executive order formalizing their detention and providing for periodic reviews of their status, which was issued on March 7, was flagged up before Christmas, but was clearly on the cards from January 2010, when the Task Force submitted its report to the President, recommending that 48 of the remaining prisoners — one of the 48 died in Guantánamo last month — should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”

There are several problems with this proposal, of course — beyond their distressing reinforcement of the very basis on which George W. Bush established Guantánamo in the first place — not the least of which concerns the Task Force’s belief that these men can be regarded as dangerous without evidence that can be used to prove their case. As I explained in December:

The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained [in an analysis of the Task Force's report in June 2010]: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”

To demonstrate this, I referred to the 59 habeas petitions examined by judges in the District Court in Washington D.C., of which 38 have been won by the prisoners, noting:

[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these [47] men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

Another problem is that the executive order establishes a review process for the 47 men, consisting of Periodic Review Boards (PRBs), which are remarkably similar to the review process established by the Bush administration — the Combatant Status Review Tribunals (CSRTs) — that the Supreme Court found inadequate when it granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008.

As with the CSRTs, the men will be presented with an unclassified summary of the allegations against them, will be represented by a “personal representative” (not a lawyer), will be allowed to refute the charges against them (although without the means to do so), will be able to “call witnesses who are reasonably available,” and will also run up against classified evidence that they will not be allowed to see — although there is a provision for them to “receive a sufficient substitute or summary, rather than the underlying information,” if the government plans to rely on classified evidence (as it undoubtedly will, or trials would be going ahead in these cases).

Although I am reassured that, as the administration describes it, the executive order “is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases,” and also that it “does not create any additional or separate source of detention authority,” and “does not affect the scope of detention authority under existing law,” it is disingenuous of the administration to follow up by stating, “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.”

This is because, despite its reassurances, the administration has always behaved as though the habeas legislation is a distraction, and that it has only ever believed in the Task Force’s findings — hence its decision to pre-judge 48 men whose habeas petitions might have delivered different outcomes, obviating the need for executive review.

In addition, the executive order demonstrates another fundamental problem with the administration’s approach to Guantánamo — and one that has also eluded the District Court dealing with the men’s habeas petitions. This relates to the legislation that underpins the Guantánamo detentions in the  first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or harbored them, but failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (a government, however reviled).

As the habeas legislation has showed, the majority of the men who have lost their petitions are nothing more than foot soldiers for the Taliban, who had no knowledge of al-Qaeda’s international terrorist operations, and who should, as a result, have been held as prisoners of war protected by the Geneva Conventions.

Included in the 47 men designated for indefinite detention, these soldiers remain tainted by the administration’s claims that they are “too dangerous to release,” when the truth is that the AUMF remains the flawed foundation document of the “War on Terror,” and those held at Guantánamo should either be released (without delay), charged in connection with terrorist offenses (which are crimes and not “acts of war”), or redesignated as prisoners of war, who can be held until the end of hostilities.

This, however, would involve recognizing them as soldiers, and not as the kind of shadowy, ill-defined terrorist threats that were invoked so successfully by the Bush administration, and that Obama has done nothing to dispel. This refusal to tackle the foundational problems of Guantánamo not only continues to fuel hysteria in the United States about the soldiers held in Guantánamo, but has also led to a shameful indifference towards putting on trial the handful of people genuinely accused of involvement in acts of international terrorism (including the 9/11 attacks), even though bringing these men to justice ought to have been the purpose of the “War on Terror” all along.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

As I explained in a recent article, George W. Bush, War Criminal, Is Not Welcome in Europe, Bush subsequently cancelled his visit. However, as Vince Warren of the Center for Constitutonal Rights explained in the Huffington Post:

Swiss law requires the presence of an alleged torturer on Swiss soil before a preliminary investigation can be open. Because Bush canceled, the complaints could not be filed as the basis for legal jurisdiction no longer existed. However, the fact that Bush authorized torture remains … In the long run, ducking a charge of torture is not as easy as ducking a shoe thrown at a press conference.

In my article, I stated that “the fact that the torturer-in-chief has been made unwelcome in Europe — and, in theory, anywhere outside the US –  is heartening news indeed,” and this remains the case. In the hope of keeping the story alive — and providing the Preliminary Bush Torture Indictment in an accessible form, I’ve divided the original PDF into two HTML documents, and am cross-posting the first part below. The second part will follow soon. Please note that CCR will amend the indictment as new information comes to light (as it undoubtedly will, given how much of the US torture story is still hidden), and please also note that the original contains detailed footnotes, which I have not attempted to replicate here, where I have, instead, inserted a number of important hyperlinks.

PRELIMINARY “INDICTMENT FOR TORTURE”: GEORGE W. BUSH
BROUGHT PURSUANT TO THE CONVENTION AGAINST TORTURE*

* The present document is a modified version of an individual criminal complaint prepared for submission against George W. BUSH in anticipation of his visit to Geneva, Switzerland on 12 February 2011. The individual criminal complaint brought on behalf of an individual plaintiff was not filed, as planned, on 7 February 2011 because of the announcement, on the eve of the filing, that BUSH cancelled his trip. Factual details regarding that visit, as a basis for establishing BUSH’s presence in Switzerland and the inclusion of analysis of Swiss law is reflective of the origins of this document. This document is not intended to serve as a comprehensive presentation of all evidence against BUSH for torture; rather, it presents the fundamental aspects of the case against him, and a preliminary legal analysis of liability for torture, and a response to certain anticipated defenses. This document will be updated and modified as developments warrant.

I. FACTUAL BACKGROUND

A. George W. BUSH

1. George W. BUSH was born on 6 July 1946, in New Haven, Connecticut, United States. From 20 January 2001- 20 January 2009, BUSH served as president of the United States of America and Commander in Chief of the United States Armed Forces. Pursuant to Article II of the United States Constitution, executive power was vested in BUSH, as president of the United States. Upon assuming office, BUSH took an oath to “preserve, protect and defend” the Constitution of the United States.

2. In his capacity as president of the United States of America and Commander in Chief, BUSH had authority over the agencies of the United States government involved in the torture program, including but not limited to, the Central Intelligence Agency (CIA), the Department of Defense (DOD), the Department of Justice (DOJ), the Department of Homeland Security (DHS), the Department of State (DOS), the Federal Bureau of Investigation (FBI) as well as over the White House and Office of the Vice President.

3. BUSH chaired the National Security Council (NSC), which advises and assists the president on national security and foreign policies, and serves as the president’s principal arm for coordinating these policies among various government agencies.

4. It has been publicly and widely reported that BUSH will be present in Geneva to take part as the guest of honor in a charity evening organized by the Keren Hayessod foundation, set to take place at the Hôtel President Wilson. His presence is announced for Saturday, 12 February 2011.

B. Overview of Detention Policies and Torture Program

5. On 14 September 2001, BUSH issued the “Declaration of National Emergency by reason of Certain Terrorist Attacks,” following the September 11th terrorist attacks.

6. On 17 September 2001, BUSH issued a 12-page directive (known as a “memorandum of notification”) that went to the Director of the CIA and members of the National Security Council, in which BUSH authorized the CIA to capture suspected terrorists and members of Al-Qaeda, and to create detention facilities outside the United States where suspects can be held and interrogated. BUSH‘s directive marked the official launching of the CIA program by vesting the agency with unprecedented power. The document was  “a means of granting the CIA important new competences relating to its covert actions: new choices it could make and new ways it could respond if confronted with Al-Qaeda targets in the field.”

7. According to Swiss Senator Dick Marty‘s 2007 Report to the Council of Europe [PDF], BUSH had been personally involved in the conception, discussion, and formulation of this new strategy. The 17 September 2001 directive, referred to by Marty as a “Presidential Finding,” is said to have “create[d] paramilitary teams to hunt, capture, detain, or kill designated terrorists almost anywhere in the world.” Marty‘s Report shed further light on what the directive was intended to achieve:

Our team has spoken with several American officials who have seen the text of the Presidential Finding and participated in the operations that put it into action. Two particularly striking observations have emerged from these discussions. First, by putting “a lot of stock in Special Activities” the Finding “redefined the role of the Agency,” even in the eyes of some of its own, more conservative senior officials. Second, the “really broad, not specific” scope of the covert actions authorised in the Finding meant that the CIA was instantly granted enough room for manoeuvre to design a secret detentions programme overseas.

8. The International Committee of the Red Cross (“ICRC”) was refused access to detainees held in the CIA program. As revealed through a 2007 ICRC report [PDF], the ICRC made repeated requests to the United States to grant it access to the detainees generally, including specific detainees whom the ICRC believed to be, and were in fact, held by the CIA in secret detention sites outside of the United States.

9. On 7 October 2001, BUSH announced that, on his orders, “the United States military has begun strikes against Al-Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.”

10. On 13 November 2001, BUSH authorized the detention of alleged terrorists and subsequent trial by military commissions, which he ordered would not be subject to the principles of law and rules of evidence applicable to trials held in U.S. federal courts. In this order, BUSH vested himself with the power to detain and try by military commission a broad category of persons believed to be, or have been, linked to the acts of international terrorism. In this order, BUSH further vested his Secretary of Defense, Donald Rumsfeld, with certain powers related to the detention of such persons and the establishment of military commissions. BUSH emphasized that tasking his subordinate, Rumsfeld, with these responsibilities related to detention policies “shall not be construed to limit the authority of the President as Commander in Chief of the Armed Forces [...].” Finally, through this order, BUSH purported to strip detainees of the power to seek a remedy not only in U.S. federal courts but also in “any court of any foreign nation, or any international tribunal.”

11. By late 2001, BUSH was planning for the detention of individuals at the U.S. Naval Station at Guantánamo Bay, Cuba (Guantánamo) as evidenced by memoranda [PDF] addressing the question of whether the U.S. federal courts would have jurisdiction of individuals detained in Guantánamo — a prospect which BUSH sought to foreclose through his 13 November 2001 Order.

12. On 11 January 2002, the first detainees arrived in Guantánamo Bay, Cuba.

13. On 18 January 2002, BUSH decided that the Third Geneva Convention did not apply to the conflict with al Qaeda or members of the Taliban, and that they would not receive the protections afforded to prisoners of war. This decision was taken upon consideration of advice [PDF] from John Yoo and Robert Delahunty, both of the Department of Justice (“DOJ”) Office of Legal Counsel (“OLC”), and the additional oral advice of his Chief White House Counsel, Alberto Gonzales [PDF].

14. On 19 January 2002, Secretary of Defense Rumsfeld transmitted BUSH‘s determination regarding the status of the Taliban and al Qaeda to combatant commanders, along with the order that the commanders should treat such individuals in a manner “consistent” with the “principles” of the Geneva Conventions only “to the extent appropriate and consistent with military necessity” [PDF]. The combatant commanders were ordered to transmit the content of this memo to the subordinate commanders, including commander of Joint Task Force (JTF) 160 responsible for Guantánamo.

15. On 25 January 2002, the ICRC made its first visit to the detention facility in Guantánamo Bay, Cuba.

16. On 27 January 2002, BUSH‘s Secretary of Defense, Rumsfeld, visited the U.S. detention facility at Guantánamo.

17. On 7 February 2002, pursuant to his “authority as Commander-in-Chief and Chief Executive of the United States,” BUSH issued a memorandum stating that the Geneva Conventions do not apply to the conflict with Al-Qaeda, and that Common Article 3 of the Geneva Conventions did not apply to either Al-Qaeda or Taliban detainees [PDF]. BUSH called only for detainees to be treated humanely and “to the extent appropriate and consistent with military necessity, in a manner consistent with principles of Geneva,” as a matter of policy — not law. In so doing, BUSH rejected Secretary of State Colin Powell‘s calls to reconsider and reverse his 18 January 2002 determination regarding the application of the Geneva Conventions, and disregarded the advice of the Legal Advisor to the State Department that the non-application of the Geneva Conventions to the conflict in Afghanistan was inconsistent with plain language of the Geneva Conventions and unvaried practice of the United States in the fifty years since becoming a party to the Conventions [PDF].

18. In March 2002, the first “high value detainee” Abu Zubaydah was detained and interrogated by the CIA. His detention “accelerated” the development of the CIA interrogation program [PDF]. In his memoir DECISION POINTS, BUSH explained that the decision was taken to transfer Abu Zubaydah to CIA custody and to “move him to a secure location in another country where the Agency would have total control over his environment.”

19. Through, among other means, discussions among members of the NSC, which BUSH chaired, BUSH was fully briefed on, and approved as a matter of policy, the indefinite detention of individuals held by the U.S. government, and specifically, the CIA.

20. The CIA interrogation program sanctioned by BUSH included interrogation techniques that were directly inspired by the “Survival Evasion Resistance Escape (SERE)” training program, in which U.S. military members were exposed to, and taught how to resist, interrogation techniques used by enemy forces that did not adhere to the Geneva Conventions. As detailed in the CIA IG Report, the U.S. employed these techniques, which included waterboarding; confining detainees in a dark box for up to 18 hours at a time and possibly with an insect placed in the confinement box; up to 11 days of sleep deprivation; facial hold or facial slap; “walling,” which consists of pulling a detainee forward and then pushing him back quickly against “a flexible false wall so that his shoulder blades hit the wall;” and use of stress positions, on CIA detainees.

21. As described by the ICRC, the CIA detention program “included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.” The UN Joint Study on secret detentions [PDF, also see here and here] noted that detainees had been held in Afghanistan, Thailand, Poland and Romania, among other locations. The ICRC described the fourteen individuals previously held as part of the CIA detention program, whom BUSH transfered to detention at Guantánamo, and which BUSH announced in September 2006, as “missing persons.”

22. The ICRC Detainee CIA Report further explained that the program “was clearly designed to undermine human dignity and to create a sense of futility by inducing, in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalisation and dehumanisation.”

23. The interrogation methods used on detainees were euphemistically qualified by the U.S. government as “enhanced,” but the United Nations and the ICRC found that they rose to the level of torture and cruel, inhuman or degrading treatment. The ICRC unequivocally concluded that, upon the information gathered from interviews with the former CIA detainees, conducted after their transfer to Guantánamo:

The allegations of ill-treatment of the detainees indicate that, in many cases, the ill-treatment to which they were subjected while held in the CIA program, either singly or in combination, constituted torture. In addition, many other elements of the ill treatment, either singly or in combination, constituted cruel inhuman or degrading treatment.

24. The ICRC concluded that the CIA program‘s interrogation techniques consisted of: suffocation by water — or waterboarding; prolonged stress standing position while arms are shackled above the head; beatings by use of a collar held around the detainees neck and used to forcefully bang the head and body against the wall; beating and kicking; confinement in a box; forced nudity for periods ranging from several weeks to several months; sleep deprivation through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music; exposure to cold temperature; prolonged shackling; threats of ill-treatment to the detainee and/or his family, forced shaving; and deprivation or restricted provision of solid food.

25. The UN Joint Study found that the CIA had taken 94 detainees into custody and had employed “enhanced interrogation techniques to varying degrees in the interrogation of 28 of those detainees.”

26.The CIA interrogations of Abu Zubaydah were videotaped and those videotapes were sent to CIA headquarters. In total there were 92 videotapes, 12 of which included application of so-called “enhanced interrogation techniques.” The videotapes included evidence of torture, including the waterboarding of Abu Zubaydah 83 times. Those videotapes were destroyed by the CIA in November 2005. Abu Zubaydah described to the ICRC his waterboarding:

I was put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds caused severe pain. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled without success to breathe. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress.

27. In November 2002, another CIA detainee held in a secret site, [Abd Al-Rahim] Al-Nashiri, was arrested. He was waterboarded twice in November 2002. Although the CIA IG Report is heavily redacted when discussing the interrogation of Al-Nashiri, it confirms that CIA HQ authorized the use of “enhanced interrogation techniques” against him. As discussed below, BUSH authorized and condoned the waterboarding of Al-Nashiri.

28. A third CIA “high value detainee,” Khalid Sheik Mohammed, was subjected to waterboarding 183 times. In his recent memoir, BUSH specifically acknowledged that, upon request by CIA Director George Tenet, he authorized the use of “enhanced interrogation techniques” on Khalid Sheik Mohammed, including waterboarding. In discussing “haul[ing] out their target,” following a raid on the apartment complex where Khalid Sheik Mohammed was, and the CIA interrogation that followed, BUSH writes in DECISION POINTS:

I was relieved to have one of Al-Qaeda‘s senior leaders off the battlefield. But my relief did not last long. [CIA] Agents searching Khalid Sheik Mohammed‘s compound discovered what one official later called a “mother lode” of valuable intelligence. Khalid Sheik Mohammed was obviously planning more attacks, It didn‘t sound like he was willing to give us any information about them. “I‘ll talk to you,” he said, “after I get to New York and see my lawyer.”

George Tenet asked if he had permission to use enhanced interrogation techniques, including waterboarding, on Khalid Sheik Mohammed. I thought about meeting Danny Pearl‘s widow, who was pregnant with his son when he was murdered. I thought about the 2,973 people stolen from their families by al Qaeda on 9/11. And I thought about my duty to protect the country from another act of terror.

“Damn right,” I said.

Other so-called “enhanced interrogation techniques” used upon Khalid Sheik Mohammed were threats to kill his children and the deprivation of sleep for 180 hours.

29. In a speech given on 6 September 2006, BUSH “officially acknowledged the existence of a CIA terrorist detention and interrogation program.” Defendant BUSH stated that “our government has changed its policies,” and admitted to authorizing an “alternative set of procedures” on persons detained “secretly” and “outside the United States” in a program operated by the CIA, while refusing to specify what techniques were authorized. BUSH also discussed another individual held in this program, Abu Zubaydah. As discussed above, Abu Zubaydah was subjected to acts of torture, including having been waterboarded at least 83 times. Notably, while BUSH stated that there were no detainees held in the CIA detention program as of 6 September 2006, he explicitly reserved the right to place, again, persons in CIA detention in secret sites beyond the reach of the law.

30. In his 6 September 2006 speech, BUSH also expressed fear that members of the U.S. military involved in torture might be prosecuted for war crimes: “some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act — simply for doing their jobs in a thorough and professional way.” He emphasized that he would not allow this to happen and asked Congress to prevent detainees from pursuing civil claims against U.S. military personnel for violations of the Geneva Conventions. Through these measures, BUSH sought to provide complete immunity from justice for any member of the U.S. military who tortured a detainee.

31. Having met with the fourteen “high value detainees” held in the CIA program following their transfer from secret sites to Guantánamo in September 2006, the ICRC concluded that it “clearly considers that the allegations of the fourteen include descriptions of treatment and interrogation techniques – singly or in combination – that amounted to torture and/or cruel, inhuman or degrading treatment.”

32. On 11 June 2007, the Parliamentary Assembly of the Council of Europe, of which Switzerland is a member state, published an investigative report authored by Dick Marty on secret detentions and illegal transfers of “high value detainees” by the CIA involving Council of Europe member states. The report confirmed the existence of secret CIA sites in Poland and Romania and found that the interrogation techniques used on detainees were “tantamount to torture.” On 27 June 2007, the Parliamentary Assembly, adopted a resolution in which it unequivocally stated:

The detainees were subjected to inhuman and degrading treatment, which was sometimes protracted. Certain “enhanced” interrogation methods used fulfill the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights (ETS No. 5) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

33. In March 2008, BUSH vetoed legislation that would have banned the CIA from using “enhanced interrogation techniques,” including waterboarding, saying it “would take away one of the most valuable tools on the war on terror.”

34. In addition to detainees in the CIA detention program, these SERE-inspired “interrogation techniques” were also used against Mohammed al-Qahtani, a detainee at Guantánamo who was subjected to a prolonged, aggressive interrogation that violated international law, known as the “First Special Interrogation Plan” [PDF]. This interrogation plan, which began on 23 November 2002 and ended 16 January 2003, included 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, dehumanizing treatment, the use of physical force against him, prolonged stress positions, prolonged sensory overstimulation, and threats with military dogs. These techniques were later widely acknowledged as torture. Indeed, the former convening office of the military commissions at Guantánamo, Susan Crawford, declared that she could not bring charges against Mr. al-Qahtani due to the torture inflicted on him: “we tortured al-Qahtani. … His treatment met the legal definition of torture. And that’s why I did not refer the case for prosecution.”

35. There have been a plethora of reports published that detail the draconian conditions, interrogation techniques and torture that took place at Guantánamo. Since as early as 2003, ICRC staff had expressed their deep concerns about the detention conditions in Guantánamo — indeed, published memoranda by U.S. officials from that period contain descriptions of meetings held between ICRC staff and Guantánamo commander Geoffrey Miller where concerns were raised [PDF]. In 2006, a group of five United Nations Special Rapporteurs published a joint Report on the situation of detainees at Guantánamo Bay. Crucially, this report came to the express conclusion that the interrogation techniques authorized and deployed by the Department of Defence, which operates under the command of BUSH, amounted to torture. Additionally, the UN experts also concluded inter alia that the force-feeding of detainees on hunger strike amounted to acts of torture [PDF]. A 2006 report by the United Nations Committee against Torture explicitly recommended that the U.S. “rescind any interrogation technique, including methods involving sexual humiliation, ‘water boarding‘, ‘short shackling‘ and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment” [PDF]. A 2008 study by Physicians for Human Rights came to the conclusion that many techniques used in Guantánamo, especially those exercised over a longer period or in combination with other techniques, amounted to torture. Other studies have detailed how the BUSH administration, for example, forcibly deployed the drug mefloquine against detainees at Guantánamo in order to break their resistance to interrogation, despite the fact that it is well-known to have severe side effects and cause health problems [PDF]. In sum, there is widespread international acceptance — amongst intergovernmental bodies, international experts, academics and others — that the interrogation techniques applied in Guantánamo constitute torture under international law.

36. Finally, as is well-known, detainees in Iraq, including at the notorious Abu Ghraib prison, were also subjected to torture, cruel, inhuman and degrading treatment, and other serious violations of international law [Taguba PDF, Fay/Jones PDF, ICRC PDF, Schlesinger PDF].

C. Admissions and Findings that BUSH Authorized and Approved Torture

37. George W. BUSH has acknowledged on numerous occasions, and without any apparent remorse or consequence that he authorized and condoned the waterboarding of detainees held in U.S. custody, and that he was aware of and condoned the use of so-called “enhanced interrogation techniques.” BUSH‘s own admissions are consistent with, and confirm the findings of key reports, such as the CIA Inspector General‘s Report and the Marty Report.

38. The CIA IG Report confirms that BUSH was fully briefed on the specific “enhanced interrogation techniques” employed by the CIA, through consultations carried out in the summer of 2002 by the CIA with the NSC, which BUSH chaired, and with “senior Administration officials.” The CIA IG Report further confirms that in early 2003 the CIA continued to inform senior Administration officials, including the White House Counsel and others of the NSC, of the status of its Counterterrorism Program, because “[t]he Agency specifically wanted to ensure that these officials and the [Congressional] Committees continued to be aware of and approve CIA‘s actions.” Select members of the NSC were given a detailed briefing on the program by the CIA on 29 July 2003, and again on 16 September 2003: “none of those involved in these briefings expressed any reservations about the program.” BUSH met daily with, and was briefed by, his intelligence team.

39. In addition, BUSH played an active role in supporting the CIA secret detention program. Marty‘s Council of Europe investigation, for example, reported that BUSH welcomed to the Oval Office a high-level group of delegates from Bucharest to personally thank them to their contribution to the CIA program, as Romania hosted CIA black sites.

40. In an April 2008 interview with ABC News, BUSH acknowledged that he knew of the detailed discussions members of his national security team (the “Principals Committee” of the NSC) were having to define the interrogation techniques to be used by the CIA. When asked about the treatment of Khalid Sheik Mohammad, which included waterboarding, BUSH said: “I didn’t have any problem at all trying to find out what Khalid Sheikh Mohammed knew.”

41. BUSH released his memoir, DECISION POINTS, on 9 November 2010. In the book, BUSH states unequivocally that he authorized the torture, including waterboarding, of individuals held in U.S. custody. He further admits and acknowledges his role in selecting and approving the interrogation techniques used by the CIA: “I took a look at the list of techniques. There were two that I felt went too far, even if they were legal. I directed the CIA not to use them. Another technique was waterboarding, a process of simulated drowning. No doubt the procedure was tough [...] I would have preferred that we get the information another way. But the choice between security and values was real. Had I not authorized waterboarding on senior Al-Qaeda leaders, I would have had to accept a greater risk I was unwilling to take. [...] I approved the use of the interrogation techniques.”

42. BUSH details how at his direction, Department of Justice and Central Intelligence Agency lawyers conducted a legal review of the list of interrogation techniques proposed by the CIA. (Notably, the current U.S. Attorney General, Eric Holder, has unequivocally defined waterboarding as an act of torture.) Having received legal advice from government lawyers that it is permissible to waterboard detainees, BUSH admits that he responded “damn right” to the query of whether Khalid Sheik Mohammed could and should be waterboarded.

43. In an interview with Matt Lauer of NBC News on 8 November 2010, BUSH again admitted that he authorized acts of torture, including waterboarding:

BUSH: [...] one of the high value al Qaeda operatives was Khalid Sheik Mohammed, the chief operating officer of al Qaeda, ordered the attack on 9/11, and they say he’s got information. I said, “Find out what he knows.” And so I said to our team, “are the techniques legal?” And he says, “yes, they are,” and I said, “use ‘em.”
LAUER: Why is waterboarding legal, in your opinion?
BUSH: Because the lawyers said it was legal. He said it did not fall within the Anti-Torture Act. I’m not a lawyer, but you gotta trust the judgment of people around you and I do.
LAUER: You say it’s legal and “the lawyers told me.”
BUSH: Yeah.
LAUER: Critics say that you got the Justice Department to give you the legal guidance and the legal memos that you wanted.
BUSH: Well –
LAUER: Tom Kean, who was a former Republican co-chair of the 9/11 commission, said they got legal opinions they wanted from their own people.
BUSH: He obviously doesn’t know. I hope Mr. Kean reads the book. That’s why I’ve written the book. He can — they can draw whatever conclusion they want.

44. BUSH‘s admission of authorizing torture techniques was previously acknowledged by the second-highest ranking member of his administration, Vice President Dick Cheney. On 10 May 2009, former Vice President Cheney appeared on the CBS News television program Face the Nation. Asked what BUSH had known about torture methods, Cheney replied, “I certainly, yes, have every reason to believe he knew — he knew a great deal about the program. He basically authorized it. I mean, this was a presidential-level decision. And the decision went to the president. He signed off on it.”

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.