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.

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.

The documents also provide the date for a flight into Poland — March 7, 2003 — that corresponds with the date cited for the arrival of Khalid Sheikh Mohammed in an article in Der Spiegel last year, and also reveal the number of prisoners on seven separate flights between December 2002 and September 2003. In addition, they provide some tantalizing information about the exchange of prisoners between the Polish prison and another secret CIA facility in Romania.

Yesterday, the Wall Street Journal took up the story. Although reporter Marcin Sobczyk also ignored the recent release of documents, he ran through the story of the prison’s existence, as disclosed in various documents between 2005 and 2009, and explained that the Polish newspaper Gazeta Wyborcza had just reported that former Prime Minister Leszek Miller and former President Aleksander Kwasniewski “may face war crime charges for agreeing to host the facility.”

As Sobczyk stated, “Kwasniewski and Miller may stand trial before the State Tribunal, a rarely-used special court designed to try Poland’s top officials.” He added, “The prosecutor on the case wants to ask the Speaker of Parliament to start the criminal procedure against the former leaders, according to the report. The case would first go to a parliamentary committee and then to the lower house of parliament, which has the power to decide whether or not to press charges.”

Adam Bodnar of the Helsinki Foundation for Human Rights, who filed the Freedom of Information requests that secured the release of last week’s documents, provided me with further information, through an English translation of the article in Gazeta Wyborcza, in which it was explained that Jerzy Mierzejewski, the prosecutor responsible for the “top secret” investigation, which opened in 2008, began by “conduct[ing] an investigation about the government officials’ abuse of powers,” but now, according to the newspaper’s sources, “wants to charge them for participation in war crimes.”

As Gazeta Wyborcza also explained, “The starting point of the investigation was a secret note by the Polish Intelligence Agency confirming that a base controlled by the CIA existed on Polish territory,” and the prosecutor was initially investigating questions relating to “the consent of the Polish authorities for its creation.” The newspaper also reported that Mierzejewski “listened to the testimonies of tens of witnesses — among them former Prime Ministers and bosses of intelligence agencies.”

Under Polish law, senior officials, including the President and the Prime Minister, cannot be tried before a regular court for alleged crimes committed while in office, and can only be tried via the State Tribunal, which, as Marcin Sobczyk explained, “has so far handled just a handful of cases since its creation in 1921.” Gazeta Wyborcza added that, in addition to former President Aleksander Kwasniewski and former Prime Minister Leszek Miller, Krzysztof Janik, the former head of the Ministry of Internal Affairs and Administration, could also be charged, and today the newspaper Rzeczpospolita reported that the charges could also extend to Zbigniew Siemiatkowski, the former head of Polish Intelligence Agency.

Whether a trial will actually go ahead is another matter, of course. Aleksander Kwasniewski told Gazeta Wyborcza that the prosecutor had not spoken to him, and explained that “there was co-operation with the American intelligence, and that’s the reason for the CIA flights to Szymany.” He insisted, however, that “there were no prisons.” The following exchange also took place:

Q: Could Poland as part of the co-operation give Americans consent for the prison and for torture?
A: The Americans never asked for such consent.
Q: Could they do it without our knowledge?
A: I have no information whatsoever about Americans torturing prisoners in Poland.

In addition, Leszek Miller responded to questions posed by the newspaper by stating, “I have nothing to say about this case,” and Krzysztof Janik said that “he had nothing to do with this case,” adding that the Polish intelligence centre in Kiejkuty “was not part of my responsibility as Minister of Internal Affairs.” Also asked to comment was Zbigniew Siemiatkowski, who stated bluntly, “When I’m objectively asked by entitled agencies, and when finally I’ll be exempted from secrecy, then I’ll answer.”

These responses may or may not reflect the truth, but in September 2008, when a Polish intelligence official confirmed that the CIA had held terror suspects in a military intelligence training base in Stare Kiejkuty between 2002 and 2005, he added that only the CIA had access to the prison, and that, although Prime Minister Miller and President Kwasniewski knew about it, “it was unlikely either man knew if the prisoners were being tortured because the Poles had no control over the Americans’ activities.”

Krzysztof Janik provided Gazeta Wyborcza with a similar version of events. After saying that he would be “astonished” if a State Tribunal were to proceed, and also stating his belief that the Polish government “had the right to sign a contract with the American government on the issue of the joint war on terrorism,” he added, “As far as I know, our government had no idea what the Americans are doing with the prisoners, and surely not that they were tortured.” When asked, “If the CIA tortured prisoners, could Kwasniewski and Miller have known about this?” he replied, “I can’t answer for them. However, knowing the mechanisms of power, I doubt that they knew.”

For any trial to go ahead, “The prosecutor’s motion will require political support in parliament,” as Marcin Sobczyk explained. He added that generating majority support for “the concept that the country must reveal its secrets and prosecute its leaders for cooperating with their US ally may be difficult if not impossible to build.”

This is almost certainly correct, especially as the release of documents to date — including last week’s startling disclosures, still do not contain names or other information that categorically include the elusive “smoking gun.” As MP Konstanty Miodowicz, who heads the Parliamentary Special Services Committee, told Rzeczpospolita last week, “There is still no evidence that these people were terrorist suspects, imprisoned by the CIA.” As The News added, Miodowicz pointed out that there was nothing in the documents “to suggest that the people on the aircrafts — described in one document as being ‘businessmen’ — were al-Qaeda suspects.”

Technically, this is true, but anyone who believes that the CIA was transporting “businessmen” into Stare Kiejkuty from December 2002 to September 2003, and was going to such extraordinary lengths to disguise its flights, as Council of Europe Rapporteur Dick Marty first revealed in a major report in June 2007 (PDF), must also be hoping that none of the “30 current and former members of the intelligence services in the United States and Europe” with whom Marty spoke, whose testimony enabled him to conclude that “secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania,” will be willing to speak openly about what they knew.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on Eurasia Review, Uruknet and New Left Project.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010). Also see the extensive archive of articles about the Military Commissions.

The existence of the prisons was first revealed in the Washington Post on November 2, 2005, although the Post refrained from “publishing the names of the Eastern European countries involved in the covert program, at the request of senior US officials.” However, on November 6, 2005, Human Rights Watch identified the countries as Poland and Romania, and stated that it had seen “flight records showing that a Boeing 737, registration number N313P — a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 — landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004.”

Although the Polish and Romanian governments denied the claims, Swiss Senator Dick Marty, a Rapporteur for the Council of Europe, concluded in a report in June 2007 (PDF), based on two years’ research and interviews with over 30 current and former members of the intelligence services in the United States and Europe, that he had enough “evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.” Marty also identified both sites, noting that the flights to Romania flew into the Mihail Kogalniceanu military airfield, and also explained how the flights were disguised using fake flight plans.

In September 2008, a Polish intelligence official confirmed that between 2002 and 2005 the CIA had held terror suspects inside a military intelligence training base in Stare Kiejkuty in north eastern Poland. He said that only the CIA had access to the prison, and that, although Prime Minister Leszek Miller and President Aleksander Kwasniewski knew about it, “it was unlikely either man knew if the prisoners were being tortured because the Poles had no control over the Americans’ activities.”

It was not until March 23, 2009, however, that the first details of specific flights into Szymany were officially confirmed in Poland, when the Polish Air Navigation Service Agency released information about a Lockheed L100-30 Hercules, registration number N8213G, which had flown in on February 4, 2003. This was followed up on September 16 with far more incriminating records, demonstrating that a notorious “torture jet,” a Gulfstream V, registration number N379P, had flown into Szymany on six occasions between February 8 and September 22, 2003 (see here and here), and on June 2 this year, a further release identified a Gulfstream IV, registration number N63MU, which had flown in on July 28, 2005.

Friday’s revelations by the Polish Border Guard Office are, however, even more significant, firstly because they include, for the first time, confirmation that N63MU flew into Poland on December 5, 2002, and secondly, because they provide details of the number of passengers on seven of the flights, as follows:

December 5, 2002: 8 passengers delivered
February 8, 2003: 7 passengers delivered; 4 others flown to an unknown destination
March 7, 2003: 2 passengers delivered
March 25, 2003: 1 passenger delivered
May 6, 2003: 1 passenger delivered
July 30, 2003: 1 passenger delivered
September 22, 2003: 0 passengers delivered; 5 flown to Romania

Who are the “high-value detainees” held in Poland?

In identifying these 20 passengers, the documents provide more questions than answers, as it is not known how many of them were prisoners, and how many were US government operatives accompanying them.

However, what can be stated with certainty is that three of the men who arrived on December 5, 2002 were the “high-value detainees” Abu Zubaydah, Abd al-Rahim al-Nashiri and Ramzi bin al-Shibh, who had all been held previously in a secret CIA prison in Thailand.

In the CIA Inspector General’s Report on “Counterterrorism Detention and Interrogation Activities (September 2001-October 2003),” published in May 2004, but only made publicly available last August (PDF), it was stated that the “enhanced interrogation of al-Nashiri continued through 4 December 2002” and that, “after being moved, al-Nashiri was thought to have been withholding information”, indicating that it was at this time that he was rendered to Poland.

Moreover, in research for a “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” published by the United Nations in February this year (PDF, or see my cross-post here), an analyst

identified a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) … though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible “fingerprints” of a United States Government operation, as well as the filing of “dummy” flight plans.

This, clearly, is the flight identified in the newly released documents as having flown into Poland via Dubai.

In addition, according to information provided to ABC News by “[c]urrent and former CIA officers” in December 2005, seven other “high-value detainees,” as well as Zubaydah, al-Nashiri and bin al-Shibh, were held in Poland, while an eleventh, Hambali, was held elsewhere (possibly on the British island of Diego Garcia, in the Indian Ocean, which is leased to the US). ABC News identified these men as Khalid Sheikh Mohammed, Waleed bin Attash, Ibn al-Shaykh al-Libi, Abdul Rahim al-Sharqawi, Mohammed Omar Abdel-Rahman, Hassan Ghul and Ahmed Khalfan Ghailani.

Of these seven, Hassan Ghul (whose whereabouts are still unknown, although he was reportedly held in a Pakistani prison in 2006) and Ahmed Khalfan Ghailani (who was one of 14 “high-value detainees” transferred to Guantánamo in September 2006) were seized in 2004, outside of the period from December 2002 to September 2003 covered by the documents, but the other five may all have been held in Poland at this time.

In April 2009, Der Spiegel reported that Khalid Sheikh Mohammed (another of the 14 HVDs, and the alleged mastermind of the 9/11 attacks) was flown to Szymany on March 7, 2003, and if this is the case (and the date, noticeably, corresponds with one of the dates in the newly released documents), then it is possible that Mustafa al-Hawsawi, who was seized with him on March 1, 2003 (and who was also transferred to Guantánamo in September 2006), was the other passenger who arrived with him on that date — although it is also, of course, possible that the second passenger was an interrogator or a psychologist.

As for the others identified by ABC News, Waleed bin Attash (another of the 14 HVDs), seized in Karachi, Pakistan on April 29, 2003, could be the passenger delivered on May 6, and Mohamed Omar Abdel-Rahman, one of the sons of Omar Abdel-Rahman, the “Blind Sheikh,” imprisoned in the US, could have been on any of the flights. Seized in Quetta in February 2003, his detention has never been officially acknowledged by the US authorities, and his current whereabouts are unknown.

More contentious are the claims that Ibn al-Shaykh al-Libi and Abdul Rahim al-Sharqawi were held in Poland. Al-Libi, the emir of the Khaldan training camp in Afghanistan, which was closed down by the Taliban in 2000 after he refused to cede control of it to Osama bin Laden, was, notoriously, rendered by the CIA to Egypt soon after his capture in Afghanistan in December 2001, where, under torture, he came up with the false allegation that Saddam Hussein was working on a chemical weapons program with al-Qaeda, which was used to justify the invasion of Iraq in March 2003.

According to an account by the journalist Stephen Grey, al-Libi was rendered back to Afghanistan in November 2003, and according to another account, by a Libyan who talked to al-Libi in a prison in Tripoli before his suspicious death last May, he was rendered from Egypt to prisons in Mauritania, Morocco and Jordan, before his return to Afghanistan, where he was held in three separate prisons run by, or under the control of the CIA, before his eventual return to Libya (possibly in 2006). As a result, although it’s possible that he was also held in Poland for a while, it is by no means certain.

As for al-Sharqawi (also identified as Sharqwi Abdu Ali al-Hajj or Abdu Ali Sharqawi), the available reports suggest that, after he was seized in a house raid in Pakistan in February 2002, he was rendered to Jordan, where he was held for nearly two years — and tortured on behalf of the CIA — before being transferred to the CIA’s “Dark Prison” near Kabul, and then, via Bagram, to Guantánamo, where he arrived in September 2004. As with al-Libi, however, it is possible that at some point he was transferred to Poland.

A program still shrouded in secrecy

Given the intense secrecy that still surrounds the “high-value detainee” program, all that we can state with certainty is that, in May 2005, Assistant Attorney General Stephen G. Bradbury of the Office of Legal Counsel stated in a memo (updating the notorious “torture memos” of August 1, 2002, by John Yoo and Jay S. Bybee) that the CIA had, by that point, “taken custody of 94 prisoners [redacted] and ha[d] employed enhanced techniques to varying degrees in the interrogations of 28 of these detainees.” These figures do not include prisoners rendered to prisons in other countries that were not directly under CIA control.

As these are essentially the only details about the program’s scope that have ever been made publicly available, it is impossible to state with any certainty how many of these 94 prisoners were held in Poland. However, research undertaken for the UN’s secret detention report indicated that the majority of the 94 were probably held in secret prisons in Afghanistan, and the figure of ten men in Poland that was cited by ABC News is close to the figure quoted by Dick Marty, who noted that “a single CIA source told us that there were ‘up to a dozen’ high-value detainees in Poland in 2005, but we were unable to confirm this number.” If this is the case, then the 20 passengers referred to in the newly released documents may include just eight prisoners, with two more — Hassan Ghul and Ahmed Khalfan Ghailani — arriving in 2004, and the rest being interrogators and psychologists.

One more question, however, concerns the origin of one of the flights. Although the first flight came from Bangkok via Dubai, and the rest appear to have flown directly from Kabul, Afghanistan, the flight on February 8, 2003, which contained seven passengers, and left the next day with four passengers (again, perhaps US personnel) arrived from Rabat, Morocco. Given that Morocco was one of a handful of countries (along with Jordan, Egypt and Syria) that were used either as proxy torture prisons or in order to “disappear” prisoners entirely, it is possible that the flight picked up three prisoners in Morocco, and flew them on to Poland.

If this is the case, then three possible candidates are Abu Zubair al-Haili, a Saudi seized in Morocco in June 2002, who was known as “the Bear,” because of his size, and who was reported to be “one of the top 25 al-Qaeda leaders,” and to have had “a very close relationship to Abu Zubaydah,” plus two other Saudis seized with him. The whereabouts of all three men have never been explained by either the US or the Moroccan authorities, although in September 2002 the Independent reported that al-Haili was “in US custody.”

Romania’s role in the CIA’s secret prison program

The final piece of the jigsaw revealed by the new Polish documents concerns Romania, as it seems clear that, on September 22, 2003, five prisoners were taken from the Polish prison to what may, at the time, have been a new project in Romania. In his report for the Council of Europe (PDF), Dick Marty stated:

For reasons of both security and capacity, the CIA determined that the Polish strand of the HVD program should remain limited in size. Thus a “second European site” was sought to which the CIA could transfer its detainees with “no major logistical overhaul”. Romania, used extensively by United States forces during Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a member of the CIA’s Counterterrorist Centre remarked about the location of the proposed detention facility, “our guys were familiar with the area.”

Marty added:

Romania was developed into a site to which more detainees were transferred only as the HVD program expanded. I understand that the Romanian “black site” was incorporated into the program in 2003, attained its greatest significance in 2004 and operated until the second half of 2005. The detainees who were held in Romania belonged to a category of HVDs whose intelligence value had been assessed as lower but in respect of whom the Agency still considered it worthwhile pursuing further investigations.

While this avenue remains to be explored, the UN secret detention report suggested that three of the men held in Romania may have been the Yemenis Salah Nasser Salim Ali (seized in Indonesia in August 2003), Mohammed Farag Ahmad Bashmilah (seized in Jordan in October 2003) and Mohammed al-Asad (seized in Tanzania in December 2003), who, after being held in secret prisons in Afghanistan, were transferred in April 2004 to “an unknown, modern facility apparently run by United States officials, which was carefully designed to induce maximum disorientation, dependence and stress in the detainees … Research into flight durations and the observations of Mr. al-Asad, Mr. Ali, and Mr. Bashmilah suggest that the facility was likely located in Eastern Europe.”

All three were eventually transferred to Yemeni custody in May 2005, but they were clearly more fortunate than the other men rendered to Romania, whose stories have never emerged, and are as unknown as those of the five men transferred from Poland to Romania on September 22, 2003, whose existence has just been revealed.

In conclusion, while the release of these documents provides only a tantalizing glimpse into a program that is still shrouded in secrecy, it also provides some much needed information to be used in an attempt to compel the Polish government, the Romanian government, and, most of all, the US government, to stop pretending either that these prisons did not exist, or that “we need to look forward as opposed to looking backwards,” and to come clean about both the prisons and the men held there.

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, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. Cross-posted on Eurasia Review, Cageprisoners, The Smirking Chimp, War Criminals Watch, Little Alex in Wonderland, The Intel Hub, Question Everything, Human Rights House and No More Crusades.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010), UN Secret Detention Report (Part One): The CIA’s “High-Value Detainee” Program and Secret Prisons, UN Secret Detention Report (Part Two): CIA Prisons in Afghanistan and Iraq, UN Secret Detention Report (Part Three): Proxy Detention, Other Countries’ Complicity, and Obama’s Record (all June 2010), Abu Zubaydah and the Case Against Torture Architect James Mitchell (June 2010), The Torture of Abu Zubaydah: The Complaint Filed Against James Mitchell for Ethical Violations (June 2010), Calling for US Accountability on the International Day in Support of Victims of Torture (June 2010), How Jay Bybee Has Approved the Prosecution of CIA Operatives for Torture (July 2010), In Abu Zubaydah’s Case, Court Relies on Propaganda and Lies (July 2010). Also see the extensive archive of articles about the Military Commissions.

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

Given the length of this section of the report (pp. 43-89), I’m publishing it in three parts. The first, published below, provides an introduction, and deals with “The ‘high-value detainee’ programme and CIA secret detention facilities,” the second looks at “CIA detention facilities or facilities operated jointly with United States military in battlefield zones,” and the third looks at “Proxy detention sites,” “Complicity in the practice of secret detention” and “Secret detention and the Obama administration.”

Please note that I have inserted hyperlinks where possible. However, the original report contains footnotes, and not all of these provide links to websites. In most cases, I have added the information contained in the footnotes in square brackets, but for full details, please see the original.

Excerpts from the UN “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” February 2010

Prepared by Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances.

IV. SECRET DETENTION PRACTICES IN THE GLOBAL “WAR ON TERROR” SINCE 11 SEPTEMBER 2001

98. In spite of the prominent role played by the United States of America in the development of international human rights and humanitarian law, and its position as a global leader in the protection of human rights at home and abroad following the terrorist attacks on New York and Washington, D.C. on 11 September 2001, the United States embarked on a process of reducing and removing various human rights and other protection mechanisms through various laws and administrative acts, including the Authorization for Use of Military Force, the USA Patriot Act of 2001, the Detainee Treatment Act of 2005, the Military Commissions Act of 2006 (which sought to remove habeas corpus rights), as well as various executive orders and memoranda issued by the Office of Legal Counsel that interpreted the position of the United States on a number of issues, including torture. It also sanctioned the establishment of various classified programmes much more narrowly than before [A/HRC/6/17/Add.3, para. 3].

99. The Government of the United States declared a global “war on terror”, in which individuals captured around the world were to be held neither as criminal suspects, put forward for federal court trials in the United States, nor treated as prisoners of war protected by the Geneva Conventions, irrespective of whether they had been captured on the battlefield during what could be qualified as an armed conflict in terms of international humanitarian law. Rather, they were to be treated indiscriminately as “unlawful enemy combatants” who could be held indefinitely without charge or trial or the possibility to challenge the legality of their detention before a court or other judicial authority.

100. On 7 February 2002, the President of the United States issued a memorandum [PDF] declaring that “common article 3 of Geneva does not apply to either Al-Qaida or Taliban detainees”, that “Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under article 4 of Geneva”, and that “because Geneva does not apply to our conflict with Al-Qaida, Al-Qaida detainees also do not qualify as prisoners of war”. This unprecedented departure from the Geneva Conventions was to be offset by a promise that, “as a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”. This detention policy was defended by the Government in various submissions to the United Nations [See for example CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3; A/HRC/4/41, paras. 453 - 455; and A/HRC/4/40, para. 12], including on 10 October 2007, when the Government stated that the law of war, and not the International Covenant on Civil and Political Rights, was the applicable legal framework governing the detentions of “enemy combatants” [CCPR/C/USA/CO/3/Rev.1/Add.1, p. 3], and therefore such detentions did not fall within the mandate of the special procedures mandate holders [CCPR/C/USA/3, para. 456, and A/HRC/4/40, para. 12].

101. By using this war paradigm, the United States purported to limit the applicable legal framework of the law of war (international humanitarian law) and exclude any application of human rights law. Even if and when human rights law were to apply, the Government was of the view that it was not bound by human rights law outside the territory of the United States. Therefore, by establishing detention centres in Guantanamo Bay and other places around the world, the United States was of the view that human rights law would not be applicable there. Guantanamo and other places of detention outside United States territory were intended to be outside the reach of domestic courts for habeas corpus applications by those held in custody in those places. One of the consequences of this policy was that many detainees were kept secretly and without access to the protection accorded to those in custody, namely the protection of the Geneva Conventions, international human rights law, the United States Constitution and various other domestic laws. [In its October 2007 submission to the Human Rights Committee, the Government reaffirmed its long-standing position that “the Covenant does not apply extraterritorially” (CCPR/C/USA/CO/3/Rev.1/Add.1, p. 2)].

102. The secret detention policy took many forms. The Central Intelligence Agency (CIA) established its own secret detention facilities to interrogate so-called “high value detainees”. It asked partners with poor human rights records to secretly detain and interrogate persons on its behalf. When the conflicts in Afghanistan and Iraq started, the United States secretly held persons in battlefield detention sites for prolonged periods of time. The present chapter therefore focuses on various secret detention sites and those held there, and also highlights examples of the complicity of other States.

A.  The “high-value detainee” programme and CIA secret detention facilities

103. On 17 September 2001, President Bush sent a 12-page memorandum to the Director of the CIA through the National Security Council, which authorized the CIA to detain terrorists and set up detention facilities outside the United States [PDF]. Until 2005, when the United Nations sent its first of many communications regarding this programme to the Government of the United States, little was known about the extent and the details of the secret detention programme. Only in May 2009 could a definitive number of detainees in the programme be established. In a released, yet still redacted, memo, Principal Deputy Assistant Attorney General Stephen G. Bradbury stated that, to date, the CIA had “taken custody of 94 detainees [redacted], and had employed enhanced techniques to varying degrees in the interrogations of 28 of those detainees.” [PDF, footnote, p. 5]

104. In the report of 2007 on his country visit to the United States (A/HRC/6/17/Add.3), the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism described what was known at that time of these “enhanced techniques” and how they were regarded:

As a result of an apparent internal leak from the CIA, the media in the United States learned and published information about “enhanced interrogation techniques” used by the CIA in its interrogation of terrorist suspects and possibly other persons held because of their links with such suspects. Various sources have spoken of techniques involving physical and psychological means of coercion, including stress positions, extreme temperature changes, sleep deprivation, and “waterboarding” (means by which an interrogated person is made to feel as if drowning). With reference to the well-established practice of bodies such as the Human Rights Committee and the Committee against Torture, the Special Rapporteur concludes that these techniques involve conduct that amounts to a breach of the prohibition against torture and any form of cruel, inhuman or degrading treatment.

105. Several of the 28 detainees who, according to Mr. Bradbury, were subjected to “enhanced techniques to varying degrees” were also “high value detainees”. Fourteen people were transferred from secret CIA custody in an undisclosed location to confinement at the Defense Department’s detention facility in Guantanamo Bay, as announced by President Bush on 6 September 2006. They were:

• Abu Zubaydah (Palestinian), captured in Faisalabad, Pakistan, on 28 March 2002

• Ramzi bin al-Shibh (Yemeni), captured in Karachi, Pakistan, on 11 September 2002

• Abd al-Rahim al-Nashiri (Saudi), captured in the United Arab Emirates in October or November 2002

• Khalid Sheikh Mohammed (Pakistani), captured in Rawalpindi, Pakistan, on 1 March 2003

• Mustafa al-Hawsawi (Saudi), captured with Khalid Sheikh Mohammed in Rawalpindi, Pakistan, on 1 March 2003

• Majid Khan (Pakistani), captured in Karachi, Pakistan, on 5 March 2003

• Waleed Mohammed bin Attash (Yemeni), also known as Khallad, captured in Karachi, Pakistan, on 29 April 2003

• Ali Abd al-Aziz Ali (Pakistani) also known as Ammar al-Baluchi, captured with Waleed bin Attash in Karachi, Pakistan, on 29 April 2003

• Mohammed Farik bin Amin (Malaysian), also known as Zubair, captured in Bangkok on 8 June 2003

• Riduan Isamuddin (Indonesian), also known as Hambali, also known as Encep Nuraman, captured in Ayutthaya, Thailand, on 11 August 2003

• Mohammed Nazir bin Lep (Malaysian), also known as Lillie, captured in Bangkok on 11 August 2003

• Gouled Hassan Dourad (Somali), also known as Haned Hassan Ahmad Guleed, captured in Djibouti on 4 March 2004

• Ahmed Khalfan Ghailani (Tanzanian), captured in Gujrat, Pakistan, on 25 July 2004

• Abu Faraj al-Libi (Libyan), also known as Mustafa Faraj al-Azibi, captured in Mardan, Pakistan, on 2 May 2005 [A/HRC/4/40/Add.1. Pentagon biographies are available here (PDF)]

106. Beyond the transcripts of the Combatant Status Review Tribunals, held in 2007 [PDF], and the facts reported in opinion No. 29/2006 (United States of America), adopted by the Working Group on Arbitrary Detention on 1 September 2006 [A/HRC/4/40/Add.1], the only available source on the conditions in the above-mentioned facilities is a report by ICRC leaked to the media by United States Government officials [PDF]. In spite of the fact that the ICRC report was never officially published, the experts decided to refer to it since information on the 14 was scarce and the United States of America, in spite of requests to be allowed to speak to Guantanamo detainees, did not authorize them to do so. That report details the treatment that most of the 14 had described during individual interviews, and concluded that there had been cases of beatings, kicking, confinement in a box, forcible shaving, threats, sleep deprivation, deprivation/restriction on food provisions, stress positions, exposure to cold temperatures/cold water, suffocation by water and so on. It stressed that, for the entire detention periods, which ranged from 16 months to more than 3 and a half years, all 14 persons had been held in solitary confinement and incommunicado detention. According to the report, they had no knowledge of where they were being held, and no contact with persons other than their interrogators or guards.” ICRC concluded that:

Twelve of the fourteen alleged that they were subjected to systematic physical and/or psychological ill-treatment. This was a consequence of both the treatment and the material conditions which formed part of the interrogation regime, as well as the overall detention regime. This regime 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, depersonalization and dehumanization. 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.”

107. Despite the acknowledgement in September 2006 by President Bush of the existence of secret CIA detention facilities, the United States Government and the Governments of the States that hosted these facilities have generally refused to disclose their location or even existence. The specifics of the secret sites have, for the most part, been revealed through off-the-record disclosures.

108. In November 2005, for example, the Washington Post referred to “current and former intelligence officers and two other US Government officials” as sources for the contention that there had been a secret CIA black site or safe house in Thailand, “which included underground interrogation cells”. One month later, ABC News reported on the basis of testimonies from “current and former CIA officers” that Abu Zubaydah had been:

… whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate.

The details of Abu Zubaydah’s treatment have been confirmed by his initial FBI interrogator, who has not confirmed or denied that the location where Abu Zubaydah was held was in Thailand. The Washington Post also reported that the officials had stated that Ramzi bin al-Shibh had been flown to Thailand after his capture. The New York Times again stated in 2006 that Abu Zubaydah was held in Thailand “according to accounts from five former and current government officials who were briefed on the case.” In January 2008, the Asia Times reported that political analysts and diplomats in Thailand suspected that the detention facility was “situated at a military base in the northeastern province of Udon Thani”.

109. The sources of the Washington Post stated that, after “published reports revealed the existence of the site in June 2003, Thai officials insisted the CIA shut it down”. The New York Times alleged later that local officials were said to be growing uneasy about “a black site outside Bangkok code-named Cat’s Eye” and that this was a reason for the CIA to want “its own, more permanent detention centers”.

110. In 2008, the Washington Post described on the basis of interviews with “more than two dozen current and former U.S. officials” how a “classified cable” had been sent between the CIA station chief in Bangkok and his superiors “asking if he could destroy videotapes recorded at a secret CIA prison in Thailand … from August to December 2002 to demonstrate that interrogators were following the detailed rules set by lawyers and medical experts in Washington, and were not causing a detainee’s death.” The newspaper also reported “several of the inspector general’s deputies traveled to Bangkok to view the tapes.” The Office of the Inspector General reviewed 92 videotapes in May 2003, 12 of which included “enhanced interrogation techniques” and identified 83 waterboarding sessions on Abu Zubaydah at a “foreign site”. From the OIG report it seems that Abu Zubaydah and Abd al-Rahim al-Nashiri were detained and interrogated at the same place [PDF, paras. 74 and 91]. This information could not be verified, as the location of the interrogation is redacted in the report of the CIA Officer General, although independent sources informed the experts that the facility was indeed in Thailand and that it was known as the “Cat’s Eye”. The videotapes were however allegedly destroyed in November 2005 by the CIA and, according to the New York Times, the tapes had been held “in a safe at the CIA station in Thailand, the country where two detainees — Abu Zubaydah and Abd al-Rahim al-Nashiri — were interrogated.”

111. In its submission for the present study, the Government of Thailand denied the existence of a secret detention facility in Thailand in 2002/03, stating that international and local media had visited the suspected places and found no evidence of such a facility. In the light of the detailed nature of the allegations, however, the experts believe it credible that a CIA black site existed in Thailand, and calls on the domestic authorities to launch an independent investigation into the matter.

112. In June 2007, in a report submitted to the Council of Europe, rapporteur Dick Marty stated that he had enough “evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania.” [PDF. In its response to the report, Romania contested the evidentiary basis of the findings concerning Romania]. The report drew on testimony from over 30 current and former members of intelligence services in the United States and from Europe. According to the Rapporteur, the Romanian “black site” was allegedly in force from 2003 to the second half of 2005. He also noted that “the majority of the detainees brought to Romania were, according to our sources, extracted ‘out of [the] theater of conflict’. This phrase is understood as a reference to detainee transfers originating from Afghanistan and, later, Iraq”. In August 2009, former United States intelligence officials disclosed to the New York Times that Kyle D. Foggo, at that time head of the CIA’s main European supply base in Frankfurt, oversaw the construction of three CIA detention centres, “each built to house about a half-dozen detainees”. They added that “one jail was a renovated building on a busy street in Bucharest”.

113. While the identities of many detainees who were held in these facilities have not been revealed yet, it is known that on or around 24 April 2004, Mohammed al-Asad (see para. 133 below) was transferred with at least two other people from Afghanistan to an unknown, modern facility apparently run by United States officials, which was carefully designed to induce maximum disorientation, dependence and stress in the detainees. Descriptions of the facility and its detention regime were given by Mr. al-Asad to Amnesty International, which established that he had been held in the same place as two other Yemeni men, Salah Ali and Mohammed Farag Ahmad Bashmilah. Research into flight durations and the observations of Mr. al-Asad, Mr. Ali, and Mr. Bashmilah suggest that the facility was likely located in Eastern Europe. Mr. al-Asad was held in a rectangular cell approximately 3.5 x 2.5 m, in which he was chained to the floor in the corner. The first night, Mr. al-Asad was kept naked in his cell. The cell included a speaker, which played noise similar to an engine or machine, and two cameras. For most of his time in the facility, the light in his cell was kept on all night. At one point, Mr. al-Asad met with a man who identified himself as the prison director and claimed that he had just flown in from Washington, D.C. Similarly, Mr. Bashmilah described how the facility where he was held was much more modern than the one in Afghanistan. White noise was blasted into his cell, the light was kept on constantly, and he was kept shackled. The guards in the facility were completely dressed in black, including black face masks, and communicated to one another by hand gestures only. The interrogators spoke to each other in English and referred to information arriving from Washington, D.C. [Declaration of Mohamed Farag Ahmad Bashmilah in support of plaintiffs’ opposition to the motion of the United States to dismiss or, in the alternative, for summary judgement, Civil Action No. 5:07-cv-02798 in the United States District Court for the Northern District of California, San Jose Division. See also “Surviving the Darkness”, a report by the Center for Human Rights and Global Justice at NYU School of Law (PDF), pp. 34-35]. On 5 March 2005, the United States informed Yemen that Mr. Bashmilah was in American custody. On 5 May 2005, Mr. Bashmilah was transferred to Yemen, along with two other Yemeni nationals, Mr. al-Asad and Salah Nasser Salim Ali Darwish.

114. In Poland, eight high-value detainees, including Abu Zubaydah, Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Tawfiq [Waleed] bin Attash and Ahmed Khalfan [al-]Ghailani, were allegedly held between 2003 and 2005 in the village of Stare Kiejkuty [PDF, p. 25. In his report, Dick Marty also noted that “a single CIA source told us that there were ‘up to a dozen’ high-value detainees in Poland in 2005, but we were unable to confirm this number”]. According to the leaked ICRC report, Khalid Sheikh Mohammed knew that he was in Poland when he received a bottle of water with a Polish label. According to ABC News, in 2005, Hassan Ghul and Mohammed Omar Abdel-Rahman were also detained in the facility in Poland [also see Working Group on Arbitrary Detention, opinion No. 29/2006 (United States of America) (A/HRC/4/40/Add.1, para. 15., and this March 2003 Fox News report]. The Polish press subsequently claimed that the authorities of Poland — during the term of office of President Aleksander Kwaśniewski and Prime Minister Leszek Miller — had assigned a team of “around a dozen” intelligence officers to cooperate with the United States on Polish soil, thereby putting them under exclusive American control and had permitted American “special purpose planes” to land on the territory of Poland [Edyta Żemła, Mariusz Kowalewski, “Polski wywiad w służbie CIA”, Rzeczpospolita, 15 April 2009]. The existence of the facility has always been denied by the Government of Poland and press reports have indicated that it is unclear what Polish authorities knew about the facility.

115. While denying that any terrorists had been detained in Poland, Zbigniew Siemiątkowski, the head of the Polish Intelligence Agency in the period 2002-2004, confirmed the landing of CIA flights [Adam Krzykowski , Mariusz Kowalewski, ‘Politycy przeczą’ Rzeczpospolita, 15 April 2009]. Earlier, the Marty report had included information from civil aviation records revealing how CIA-operated planes used for detainee transfers landed at Szymany airport, near the town of Szczytno, in Warmia-Mazuria province in north-eastern Poland, and at the Mihail Kogalniceanu military airfield in Romania between 2003 and 2005. Marty also explained how flights to Poland were disguised by using fake flight plans.

116. In research conducted for the present study, complex aeronautical data, including “data strings” retrieved and analysed, have added further to this picture of flights disguised using fake flight plans and also front companies [Data strings are exchanges of messages or digital data, mostly in the form of coded text and numbers between different entities around the world on aeronautical telecommunications networks]. For example, a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) was identified, though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible “fingerprints” of a United States Government operation, as well as the filing of “dummy” flight plans. The experts were made aware of the role of the CIA chief aviation contractor through sources in the United States. The modus operandi was to charter private aircraft from among a wide variety of companies across the United States, on short-term leases to match the specific needs of the CIA Air Branch. Through retrieval and analysis of aeronautical data, including data strings, it is possible to connect the aircraft N63MU with three named American corporations, each of which provided cover in a different set of aviation records for the operation of December 2002. The aircraft’s owner was and remains “International Group LLC”; its registered operator for the period in question was “First Flight Management”; and its registered user in the records of the Eurocontrol Central Route Charges Office, which handles the payment of bills, was “Universal Weather”. Nowhere in the aviation records generated by this aircraft is there any explicit recognition that it carried out a mission associated with the CIA. Research for the present study also made clear that the aviation services provider Universal Trip Support Services filed multiple dummy flight plans for the N63MU in the period from 3 to 6 December 2002. In a report, the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that “enhanced interrogation of al-Nashiri continued through 4 December 2002” and another, partially redacted, which stated that:

However, after being moved, al-Nashiri was thought to have been withholding information”, indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri’s rendition — details which remain classified as “Top Secret” [PDF, paras. 76 and 224].

117. Using a similar analysis of complex aeronautical data, including data strings, research was also able to demonstrate that a Boeing 737 aircraft, registered with the Federal Aviation Administration as N313P, flew to Romania in September 2003. The aircraft took off from Dulles Airport in Washington, D.C. on Saturday 20 September 2003, and undertook a four-day flight “circuit”, during which it landed in and departed from six different foreign territories — the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco — as well as Guantanamo Bay, Cuba. Focus was also placed on a flight between the two listed European “black site” locations — namely from Szymany (Poland) to Bucharest — on the night of 22 September 2003, although it was conceivable that as many as five consecutive individual routes on this circuit — beginning in Tashkent, concluding in Guantanamo — may have involved transfers of detainees in the custody of the CIA. The experts were not able to identify any definitive evidence of a detainee transfer into Romania taking place prior to the flight circuit.

118. In its response to the questionnaire sent by the experts, Poland stated that:

On 11 March 2008, the district Prosecutor’s Office in Warsaw instituted proceedings on the alleged existence of so-called secret CIA detention facilities in Poland as well as the illegal transport and detention of persons suspected of terrorism. On 1 April 2009, as result of the reorganization of the Public Prosecutor’s Office, the investigation was referred to the Appellate Prosecutor Office in Warsaw. In the course of investigation, the prosecutors gathered evidence, which is considered classified or secret. In order to secure the proper course of proceedings, the prosecutors who conduct the investigation are bound by the confidentiality of the case. In this connection, it is impossible to present any information regarding the findings of the investigation. Once the proceedings are completed and its results and findings are made public the Government of Poland will present and submit all necessary or requested information to any international body.

While the experts appreciate the fact that an investigation has been opened into the existence of places of secret detention in Poland, they are concerned about the lack of transparency into the investigation. After 18 months, still nothing is known about the exact scope of the investigation. The experts expect that any such investigation would not be limited to the question of whether Polish officials had created an “extraterritorial zone” in Poland, but also whether officials were aware that “enhanced interrogation techniques” were applied there.

119.  In its response to the questionnaire sent by the experts, Romania provided a copy of the report of the Committee of Enquiry of Parliament concerning the investigation of the statements on the existence of CIA imprisonment centres or of flights of aircraft hired by the CIA on the territory of Romania.

120. With regard to Europe, ABC News recently reported that Lithuanian officials had provided the CIA with a building where as many as eight terrorist suspects were held for more than a year, until late 2005, when they were moved because of public disclosure of the programme [also see this statement by Dick Marty]. More details emerged in November 2009 when ABC News reported that the facility was built inside an exclusive riding academy in Antaviliai. Research for the present study, including data strings relating to Lithuania, appears to confirm that Lithuania was integrated into the secret detention programme in 2004. Two flights from Afghanistan to Vilnius could be identified: the first, from Bagram, on 20 September 2004, the same day that 10 detainees previously held in secret detention, in a variety of countries, were flown to Guantanamo; the second, from Kabul, on 28 July 2005. The dummy flight plans filed for the flights into Vilnius customarily used airports of destination in different countries altogether, excluding any mention of a Lithuanian airport as an alternate or back-up landing point.

121. On 25 August 2009, the President of Lithuania announced that her Government would investigate allegations that Lithuania had hosted a secret detention facility. On 5 November 2009, the Lithuanian Parliament opened an investigation into the allegation of the existence of a CIA secret detention on Lithuanian territory. In its submission for the present study, the Government of Lithuania provided the then draft findings of this investigation, which in the meantime had been adopted by the full Parliament. In its findings, the Seimas Committee stated that the State Security Department (SSD) had received requests to “equip facilities in Lithuania suitable for holding detainees”. In relation to the first facility, the Committee found that “conditions were created for holding detainees in Lithuania”. The Committee could not conclude, however, that the premises were also used for that purpose. In relation to the second facility, the Committee found that:

The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees … However, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion.

The report also found that there was no evidence that the SSD had informed the President, the Prime Minister or other political leaders of the purposes and contents of its cooperation with the CIA regarding these two premises.

122. While the experts welcome the work of the Seimas Committee as an important starting point in the quest for truth about the role played by Lithuania in the secret detention and rendition programme, they stress that its findings can in no way constitute the final word on the country’s role. On 14 January 2010, President Dalia Grybauskaite rightly urged Lithuanian prosecutors to launch a deeper investigation into secret CIA black sites held on the country’s territory without parliamentary approval.

123. The experts stress that all European Governments are obliged under the European Convention of Human Rights to investigate effectively allegations of torture or cruel, inhuman or degrading treatment or punishment [See for example Assenov et al v. Bulgaria, judgement of 28 October 1998]. Failure to investigate effectively might lead to a situation of grave impunity, besides being injurious to victims, their next of kin and society as a whole, and fosters chronic recidivism of the human rights violations involved. The experts also note that the European Court of Human Rights has applied the test of whether “the authorities reacted effectively to the complaints at the relevant time” [Labita v Italy, application no. 26772/95, judgement of 6 April 2000, para. 131]. A thorough investigation should be capable of leading to the identification and punishment of those responsible for any ill treatment; it “must be ‘effective’ in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or the omissions of the authorities” [See Aksoy v. Turkey, judgement of December 1996, para 95; and Kaya v. Turkey, judgement of 19 February 1998, para 106]. Furthermore, according to the European Court, authorities must always make a serious attempt to find out what happened [See Timurtas v. Turkey, judgement of 13 June 2000, para. 88] and “should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions” [Assenov v. Bulgaria, op. cit., para. 104].

124. According to two high-ranking Government officials at the time, revelations about the existence of detention facilities in Eastern Europe in late 2005 by the Washington Post and ABC News led the CIA to close its facilities in Lithuania and Romania and move the Al-Qaida detainees out of Europe. It is not known where these persons were transferred; they could have been moved into “war zone facilities” in Iraq and Afghanistan or to another black site, potentially in Africa. The experts were not able to find the exact destination of the 16 high-value detainees between December 2005 and their move to Guantanamo in September 2006. No other explanation has been provided for the whereabouts of the detainees before they were moved to Guantanamo in September 2006.

125. Other locations have been mentioned as the venues for secret detention facilities outside territories under United States control (or operated jointly with the United States military). The first is Guantanamo, which was mentioned by the United States officials who spoke to the Washington Post in 2005, when it was reported that the detention facility had existed “on the grounds of the military prison at Guantanamo Bay”, but that “some time in 2004, the CIA decided it had to give [it] up … The CIA had planned to convert it into a state-of-the-art facility, operated independently of the military [but] pulled out when US courts began to exercise greater control over the military detainees, and agency officials feared judges would soon extend the same type of supervision over their detainees”. More recently, former Guantanamo Bay guards have described “an unnamed and officially unacknowledged” compound located out of sight from the main road between two plateaus, about a mile north of Camp Delta, just outside Camp America’s perimeter with the access road chained off. The unacknowledged “camp no” is described as having had no guard towers and being surrounded with concertina wire, with one part of the compound having “the same appearance as the interrogation centers at other prison camps”. At this point, it is unclear whether this facility was run by the CIA or the Joint Special Operations Command. The experts are concerned about the possibility that three Guantanamo detainees (Salah Ahmed al-Salami, Mani Shaman al-Utaybi and Yasser Talal al-Zahrani) might have died during interrogations at this facility, instead of in their own cells, on 9 June 2006.

126. There have also been claims that the United States used two military bases in the Balkans for secret detention: Camp Bondsteel, in Kosovo, and Eagle Base, in Tuzla, Bosnia and Herzegovina. In November 2005, Council of Europe Human Rights Commissioner Alvaro Gil-Robles told Le Monde that the United States military ran a Guantanamo-type detention centre in Camp Bondsteel. He said he had been “shocked” by conditions at the centre, which he witnessed in 2002, and which resembled “a smaller version of Guantanamo”. In December 2005, the United Nations Ombudsman in Kosovo, Marek Antoni Nowicki, also spoke about Camp Bondsteel, saying “there can be no doubt that for years there has been a prison in the Bondsteel base with no external civilian or judicial oversight. The prison looks like the pictures we have seen of Guantanamo Bay”. Mr. Nowicki said that he had visited Camp Bondsteel in late 2000 and early 2001, when it was the main detention centre for Kosovo Force (KFOR), the NATO-led peace-keeping force, but explained that he had had no access to the base since 2001. The United States base in Tuzla was allegedly used to “process” eight detainees, including Nihad Karsic and Almin Hardaus. Around 25 September 2001, Karsic and Hardaus were arrested at work and taken to Butmir Base, then to Eagle Base, Tuzla, where they allegedly were held in secret detention [PDF]. The men say that they were held in solitary confinement, stripped naked, forcibly kept awake, repeatedly beaten, verbally harassed, deprived of food and photographed.

127. Further developments were witnessed in 2009. In October, three of the experts sent a letter to the Governments of the United States, the United Kingdom [United Kingdom response included in A/HRC/13/39/Add.1], Pakistan and the Syrian Arab Republic regarding Mustafa Setmariam Nassar, aged 42, a Spanish citizen of Syrian origin and author of a number of books and other publications on Islam and jihad. They pointed to allegations received that, on an unknown date in October 2005, he had been apprehended in Pakistan by forces of the Pakistani intelligence on suspicion of having been involved in a number of terrorist attacks, including the 11 September 2001 attacks against the United States and the 11 March 2004 bombings in Madrid. He was detained in Pakistan for a certain period of time accused of involvement in both incidents. He was then handed over to authorities of the United States. While no official news of Mr. Nassar’s whereabouts has been received since his apprehension in October 2005, it is alleged that, in November 2005, he was held for some time at a military base facility under United States authority in Diego Garcia. It is now assumed that he is currently being held in secret detention in the Syrian Arab Republic. Official United States documents and web postings, as well as media reports, indicate that the United States authorities had been interested in Mr. Nassar before his disappearance in 2005. In June 2009, in response to a request made through Interpol by a Spanish judge for information relating to Mr. Nassar’s whereabouts, the FBI stated that Mr. Nassar was not in the United States at that time. The FBI did not, however, address whether Mr. Nassar was in United States custody elsewhere or whether it knew where he was then held. Following queries by non-governmental organizations regarding the whereabouts of Mr. Nassar, the CIA responded on 10 June 2009, stating that “the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request” and that, even if the CIA was in a position to answer the request, the records would be classified and protected from disclosure by United States laws. According to Reprieve, Mr. Nassar may have been transferred to Syrian custody. According to the Government of the United Kingdom, it has received assurances from the United States that it has not interrogated any terrorist suspect or terrorism-related detainee in Diego Garcia in any case since 11 September 2001, and that the allegations of a CIA holding facility on the island are false. The Government was therefore confident that the allegations that Mr. Nassar had been held on Diego Garcia were inaccurate.

128. Following the transfer of the 14 high-value detainees from CIA custody to Guantanamo, President Bush, in a delivered speech on 6 September 2006, announced the closure of the CIA’s “high-value detainee programme”. He stressed that, “as more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical — and having a CIA programme for questioning terrorists will continue to be crucial to getting life-saving information”. Later in 2006 and in 2007 [PDF], he indicated that “the CIA interrogation and detention program” would continue. Subsequent events support this claim as the Department of Defense announced in 2007 and 2008 the transfer of high-value detainees from CIA custody to Guantanamo.

129. On 27 April 2007, the Department of Defense announced that another high-value detainee, Abd al-Hadi al-Iraqi, described as “a high-level member of Al-Qaida”, had been transferred to Guantanamo. On the same day, Bryan Whitman, a Pentagon spokesman, stated that the detainee had been transferred to Defense Department custody that week from the CIA although he “would not say where or when al-Iraqi was captured or by whom”. However, a United States intelligence official stated that al-Iraqi “had been captured late last year in an operation that involved many people in more than one country”. Another high-value detainee, Muhammad Rahim, an Afghan described as a close associate of Osama bin Laden, was transferred to Guantanamo on 14 March 2008. In a press release, the Department of Defense stated that, “prior to his arrival at Guantanamo Bay, he was held in CIA custody”. According to reports in Pakistani newspapers, he was captured in Lahore in August 2007.

130. The Government of the United States provided no further details about where the above-mentioned men had been held before their transfer to Guantanamo; however, although it is probable that al-Iraqi was held in another country, in a prison to which the CIA had access (it was reported in March 2009 that he “was captured by a foreign security service in 2006” and then handed over to the CIA), the Department of Defense itself made it clear that the CIA had been holding Muhammad Rahim, indicating that some sort of CIA “black site” was still operating.

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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010), Torture Whitewash: How “Professional Misconduct” Became “Poor Judgment” in the OPR Report (February 2010), Judges Restore Damning Passage on MI5 to the Binyam Mohamed Torture Ruling (February 2010), What Torture Is, and Why It’s Illegal and Not “Poor Judgment” (March 2010), Abu Zubaydah’s Torture Diary (March 2010), Seven Years of War in Iraq: Still Based on Cheney’s Torture and Lies (March 2010), Protests worldwide on Aafia Siddiqui Day, Sunday March 28, 2010 (March 2010), Abu Zubaydah: Tortured for Nothing (April 2010), Mohamedou Ould Salahi: How a Judge Demolished the US Government’s Al-Qaeda Claims (April 2010), Judge Rules Yemeni’s Detention at Guantánamo Based Solely on Torture (April 2010), How Binyam Mohammed’s Torture Was Revealed in a US Court (May 2010), What is Obama Doing at Bagram? (Part One): Torture and the “Black Prison” (June 2010), New Report Reveals How Bush Torture Program Involved Human Experimentation (June 2010). Also see the extensive archive of articles about the Military Commissions.

Note

Despite the Bush administration’s fearsome rhetoric regarding Guantánamo — that it contained “the worst of the worst” terrorists, who, as a result, should be held indefinitely without charge or trial — attempts to back up these allegations with evidence have, for the most part, failed dismally. This is partly because the majority of the men held were not seized by US forces on the battlefield, as alleged, but were rounded up by the US military’s allies, in Pakistan as well as Afghanistan, at a time when bounty payments averaging $5,000 a head were being paid for al-Qaeda or Taliban suspects. However, the failures can also be ascribed to overreaction on the part of the Bush administration, and to a system of torture and coercion — and, in some cases, bribery — designed to produce confessions that, as a result, are overwhelmingly unreliable.

By the time George W. Bush left office in January 2009, 532 of the 779 prisoners held at Guantánamo had been released, and only three men had been tried and convicted of any crimes. These took place in the Military Commission trial system established by Vice President Dick Cheney in November 2001, which was revived by Congress in 2006 after the Supreme Court ruled it illegal, and the results were as follows:

• David Hicks, an Australian, accepted a plea bargain in March 2007, admitting to “providing material support to terrorism” in exchange for dropping his well-documented claims that he was abused in US custody. As a result, he received a nine-month sentence and was returned to Australia, where he is now a free man.

• In August 2008, Salim Hamdan, a driver for Osama bin Laden, was convicted of providing material support to terrorism, and given a five-and-a-half year sentence. Allowing for time already served since he was first charged, he served just five months, returning to Yemen in November 2008, where he, like Hicks, is now a free man.

• The third man to be convicted, Ali Hamza al-Bahlul, received a life sentence in November 2008 for producing a recruitment video for al-Qaeda, but his trial was a hopelessly one-sided affair, in which he refused to mount a defence, and the verdict is currently being appealed.

In addition, by the time Bush left office, judges in the US District Courts had also begun considering the habeas corpus petitions of the prisoners. The prisoners’ right to ask a judge why they were being held was unprecedented in wartime, but the Supreme Court granted the prisoners habeas rights in June 2004, because the justices recognized that they were not being held as prisoners of war protected by the Geneva Conventions, but as “enemy combatants,” who had been given no way of challenging their detention if they claimed that they had been seized by mistake. Congress subsequently stepped in to take away these rights, but they were reaffirmed in June 2008, when the Supreme Court ruled that Congress had acted unconstitutionally.

The first rulings were made in the four months before Bush left office, and the District Court judges empowered to rule on the prisoners’ detention had more bad news for the government. The Courts delivered rulings on the habeas corpus petitions of 26 prisoners, granting the petitions of 23 of these men, and only refusing them in three cases.

Under President Obama, the Courts have delivered 21 more rulings, and although the balance has swung slightly less against the government, with the prisoners winning eleven of these petitions, and the government winning ten, the only valid conclusions that can be drawn again reflect badly on the government (see “Guantánamo Habeas Results: Prisoners 34, Government 13” for links to all these rulings).

In the cases won by the prisoners, judges have demonstrated, time and again, that the government’s supposed evidence is largely unreliable, and consists primarily of information extracted through the torture or coercion of the prisoners themselves, or through the torture, coercion or bribery of other prisoners. Moreover, even in the cases won by the government, little evidence has been produced to demonstrate that the men in question were anything more than low-level Taliban recruits, who had traveled to Afghanistan to take part in a long-running civil war (in which the enemy was the Northern Alliance, who were also Muslims), and who should, as result, have been held as prisoners of war, protected by the Geneva Conventions from “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

Despite the government’s many setbacks, senior officials in the Obama administration, which has largely been content to consider the Bush administration’s body of tortured, coerced or bribed evidence against the men as somehow reliable, must have been hoping for confirmation of its policies on March 22, when Judge James Robertson delivered his ruling on the habeas corpus petition of Mohamedou Ould Slahi (described in court documents as Mohamedou Ould Salahi).

The case of Mohamedou Ould Salahi

A Mauritanian, Salahi had been seized by the Mauritanian authorities in November 2001, at the request of the US, and had then been rendered by the CIA to a prison in Jordan, as part of a project of outsourcing torture to allies in the Middle East and North Africa (including Egypt, Morocco and Syria) that was prevalent until the CIA brought torture in-house, and established its own secret torture prisons.

After eight months in Jordan, he was flown to Guantánamo (via Bagram, in Afghanistan), where he was subjected to another round of torture between June and September 2003, after which he became so compliant that, as the Washington Post reported last month, he has come to be regarded by the authorities as one of “the most significant informants ever to be held at Guantánamo,” living in his own well-equipped cell, where he has a television and “a well-stocked refrigerator,” and access to a garden, which he shares with another informer, Tarek El-Sawah (identified as Tariq al-Sawah), where the two men reportedly “grow mint for tea.”

Despite the torture, and the well-known fact that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case, stating that, “in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques” used on Salahi, the Obama administration — and, specifically, the Justice Department — was confident that it had a case.

Once described as the “highest-value detainee at the facility,” Salahi was obviously no stranger to al-Qaeda. His cousin and brother-in-law is Mahfouz Walad al-Walid (better known as Abu Hafs al-Mauritania), a religious scholar regarded by US authorities as a spiritual advisor to Osama bin Laden, and he also lived in Germany, where he met Ramzi bin al-Shibh (who reportedly helped Khalid Sheikh Mohammed plan the 9/11 attacks) and several of the 9/11 hijackers, and, briefly, in Canada, where he moved in circles that included Ahmed Ressam, the failed “Millennium Bomber.” He was also in contact, at various points in the 1990s, with a handful of other men who were later convicted for terrorist activities.

However, as Judge Robertson explained in his unclassified opinion (PDF), issued on April 9, “Associations alone are not enough … to make detention lawful.” Although he accepted, as Salahi himself admitted, that “he traveled to Afghanistan in early 1990 to fight jihad against communists and that there he swore bayat to al-Qaeda,” he also, essentially, accepted Salahi’s assertion that “his association with al-Qaeda ended after 1992, and that, even though he remained in contact thereafter with people he knew to be al-Qaeda members, he did nothing for al-Qaeda after that time.” This was in marked contrast to the government’s claim that he “was so connected to al-Qaeda for a decade beginning in 1990 that he must have been ‘part of’ al-Qaeda at the time of his capture.”

No knowledge of “Millennium Plot,” no knowledge of 9/11

In dealing with the various components of the government’s allegations, Judge Robertson’s unclassified opinion contains two particularly important concessions by the government. The first is that, although Salahi was originally seized in connection with Ahmed Ressam’s thwarted “Millennium Plot,” the government now “does not allege that Salahi participated in the Millennium Plot.” The second — even more extraordinarily, given how Salahi has been sold to the public over the years — is that the government now “acknowledg[es] that Salahi probably did not even know about the 9/11 attacks.”

These are crucial concessions, of course, which fatally undermine any claim that Salahi was a significant al-Qaeda operative, but in granting his habeas petition, Judge Robertson was also obliged to dismiss a number of other allegations. He began by noting that the case “relies heavily on statements made by Salahi himself, but the reliability of those statements — most of them now retracted by Salahi ­– is open to question.” He added that, “until very recently, the government has focused entirely on its assertion that Salahi was ‘part of’ al-Qaeda, relying on evidence of Salahi’s pre-capture support of al-Qaeda only to bolster that assertion,” but that, “In an eleventh hour brief, the government has invoked the ‘purposeful[] and material[] support’ standard that was approved in Al-Bihani v. Obama [PDF].”

This is a reference to a disturbing Court of Appeals ruling in January, in which two of the three judges on the panel denied the appeal of Ghaleb al-Bihani, a Yemeni cook for Arab forces supporting the Taliban, who lost his habeas petition in January 2009. In this contentious ruling, the two judges claimed that the President’s war powers are not “limited by the international laws of war,” provoking dissent from the third judge, who noted that, in 2004, Justice Souter of the Supreme Court had explicitly stated, “[W]e understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles.” In addition, the judges insisted that the government’s power to detain “includes those who are part of forces associated with al-Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against US Coalition partners” (emphasis added).

However, Judge Robertson ruled that this latter claim was “a non-starter,” stating that, “although Salahi may very well have been an al-Qaeda sympathizer, and the evidence does show that he provided some support to al-Qaeda, or to people he knew to be al-Qaeda, [s]uch support was sporadic … and, at the time of his capture, non-existent.” He added, “In any event, what the standard approved in Al-Bihani actually covers is ‘those who purposefully and materially supported such forces in hostilities against US Coalition partners,’” and “The evidence in this record cannot possibly be stretched far enough to fit that test.”

As a result, Judge Robertson examined the evidence submitted by the government to ascertain whether it met the existing test, first formulated by Judge John D. Bates in another habeas case (PDF): “whether the individual functions or participates within or under the command structure of the organization — i.e., whether he receives and executes orders or directions.”

After noting that “the question of when a detainee must have been a ‘part of’ al-Qaeda to be detainable is at the center of this case,” and pointing out that the government “had to show that he was still (or again) within its command structure when he was captured in November 2001,” Judge Robertson noted, almost in passing, that “the al-Qaeda that Salahi joined in 1991 was very different from the al-Qaeda that turned against the United States in the latter part of the 1990s,” and proceeded to dismiss the government’s claim that it was up to Salahi to prove that he had dissociated himself from al-Qaeda after 1992. In doing so, he took another swipe at the Court of Appeals’ ruling in Al-Bihani, in which the court indicated that “there is nothing unconstitutional about shifting the burden to a detainee to rebut a credible government showing ‘with more persuasive evidence,’” by stating, with palpable incredulity:

If that is the rule, one might reasonably ask, how can Guantánamo detainees — locked up for years on a remote island, cut off from the world, without resources, with only such access to intelligence sources and witnesses as the government deigns to give them — how can such people possibly carry the burden of rebuttal, even against weak government cases? The answer, unfortunately for detainee petitioners, is that they are indeed at a considerable disadvantage, and that successful rebuttals of credible government cases will be rare events. The Court of Appeals has acknowledged this imbalance and approved it: “[P]lacing a lower burden on the government defending a wartime detention — where national security interests are at their zenith and the rights of the alien petitioner at their nadir — is permissible.”

In response, Judge Robertson made a point of noting that a habeas court must, since the Al-Bihani ruling, “consider the government’s factual showing of probable cause and look to the petitioner for rebuttal when that showing is both credible and significant,” but added, “It is only fair to the petitioner, however — and, considering the government’s built-in advantage, not unfair to the government — to view the government’s showing with something like skepticism, drawing only such inferences as are compelled by the quality of the evidence.”

Dissecting the evidence

That evidence, as Judge Robertson noted at the outset, “relies heavily on statements made by Salahi himself,” and, as he explained, there is “ample evidence in this record that Salahi was subjected to extensive and severe mistreatment at Guantánamo from mid-June 2003 to September 2003,” as I explained in a recent article, “Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit.” He added that “Salahi made most, if not all, of the statements that the government seeks to use against him during the mistreatment or during the 2 years following it.” and that, as a result, Salahi’s own position is that “every incriminating statement he made while in custody must therefore be disregarded.”

While not entirely agreeing that every statement must be disregarded, Judge Robertson was clearly skeptical of the government’s claim that some statements should be acceptable because there was “a clean break” after the acknowledged abuse, and was also skeptical of an allied claim that some statements were corroborated by “the statements of other persons (some of them detainees).” After noting that Salahi attacked these corroborating statements as “unreliable hearsay, or subject to the same coercive tactics described above, or both,” the judge explained that his approach was “to formally ‘receive’ all the evidence offered by either side, and to give it the weight I believe it deserves.”

In a timeline, running from 1998, when Salahi began studying at the University of Duisberg in Germany, until his capture in November 2001, Judge Robertson accounted for the years in Afghanistan (1990-92) Salahi’s return to Germany to compete his studies in March 1992, when his wife joined him, and his employment during that period, with various companies in Germany. He also laid out every other claim that, between March 1993 and the time of his capture, he traveled with Abu Hafs to Sudan (in 1993) and twice transferred sums of $4,000 for him (in 1997 and 1998), was involved with Ramzi bin al-Shibh and some of the 9/11 hijackers, and with Ahmed Ressam and other terrorist suspects in Canada (during his brief stay there from November 1999 to January 2000), and that he had some involvement with individuals who were later convicted of charges related to terrorism, including Karim Mehdi, a Moroccan convicted of an alleged bomb plot on the French island of Réunion in 2003, who received a nine-year prison sentence in France in October 2006, Christian Ganczarski, a Polish-born German citizen, who received an 18-year sentence in France in February 2009, in connection with the bombing of a synagogue in Tunisia in April 2002, and Christopher Paul, a US citizen who received a 20-year sentence in Ohio, on charges related to terrorism, in February 2009.

This is an impressive list, of course, and one that, on the surface at least, seems to implicate Salahi in a number of terrorist plots, and to give weight to the government’s claim that he “actively recruited” for al-Qaeda from 1991 until at least 1999, but on examining the evidence Judge Robertson was not convinced.

In dealing with the “most damaging allegation” against Salahi — that, “in October 1999, he encouraged Ramzi bin al-Shibh, [and 9/11 hijackers] Marwan al-Shehhi, and Ziad Jarrah to join al-Qaeda” — Judge Robertson drew less than expected on bin al-Shibh’s dubious role in fostering this claim (during the four years that he was held in secret CIA prisons and subjected to the US torture program), and more on the unreliability of Salahi’s own statements, and those of Karim Mehdi.

As Judge Robertson explained, “Under coercive interrogation, Salahi confessed to facilitating travel for ‘several of the 9/11 hijackers to Chechnya,’ justifying his assistance as ‘just’ jihad.” As I explained in my book The Guantánamo Files, “even if it were true, it proves only that he was a recruiter for a war in Chechnya that was regarded by many Muslims as a legitimate struggle, who sent would-be recruits for training in long-established training camps in Afghanistan, and does not connect him in any meaningful way to 9/11.” However, as the judge noted, “Salahi’s testimony now is that he did nothing more than give bin al-­Shibh and his friends lodging for one night.”

Further evidence is supposed to have come from Karim Mehdi, who alleged that Salahi “encouraged them to travel to Afghanistan for training ­– rather than Chechnya as they had intended; that he housed them for at least one night [and] that he gave them instructions for traveling to Afghanistan and contacts for their arrival; and that he drove them to the train station the next morning.”

However, Salahi countered by stating that “the two men accompanying bin al-Shibh were not al-Shehhi and Jarrah, and that he did not convince bin al­Shibh to travel to Afghanistan instead of Chechnya,” and also by arguing that Mehdi’s statements “are too unreliable to serve as corroboration,” because they were “coerced by mistreatment,” including sleep deprivation, and because Mehdi “was fed information by his interrogators” and “has admitted to lying.”

In an explanation of this latter point, Judge Robertson noted that “some of Mehdi’s information is inconsistent with the statements of Salahi … Mehdi said that they [Salahi, bin al-Shibh and the hijackers] met more often than twice, including a meeting that took place at Salahi’s house at a time when Salahi was in custody. Upon learning that fact, Mehdi withdrew his statement about the meeting.” He added that “Mehdi’s statements indicate only that Salahi knew bin al-Shibh and Jarrah were going to Afghanistan for training, not that Salahi encouraged them to do so.”

Beyond this central claim, dismissed by the judge, the most persuasive other piece of evidence is a fax sent by Salahi to Christopher Paul in January 1997, asking this “man of great respect in al-Qaeda” for advice on how to “facilitate getting brothers to fight.” Although Salahi rather feebly tried to claim that he had not sent this fax, Judge Robertson found that it “appears to be authentic,” but refused to draw an inference from it beyond stating that it demonstrated that Salahi “continued to be in touch with people he knew to be al-Qaeda members, and that he was willing to refer would-be jihadists to them when the opportunity arose.”

After concluding that the government “has not credibly shown Salahi to have been a ‘recruiter,’” Judge Robertson turned his attention to claims that he had been involved in al-Qaeda telecommunications projects — for Abu Hafs in Sudan, and for Christian Ganczarski in Afghanistan. However, the judge did not give much weight to either allegation, and also dismissed allegations of his involvement with Karim Mehdi, Christopher Paul and two “important figures in al-Qaeda’s Montreal cell” as “too brief and shallow to serve as an independent basis for detention,” adding that much of Salahi’s behaviour “tend[s] to support [his] submission that he was attempting to find the appropriate balance — avoiding close relationships with al-Qaeda members, but also trying to avoid making himself an enemy.”

Moreover, although Judge Robertson acknowledged that there were “unanswered questions” about Salahi’s relationship with Abu Hafs, and noted that he once stated, under interrogation, that he “would have done almost anything that was asked of him,” he dismissed claims that the two money transfers were significant, noting, “Two money transfers in modest amounts a year apart would not even amount to material support (if support were the issue here, which it is not),” and also recognized that, around November 1999, when Abu Hafs “encourag[ed] him to return to Afghanistan, and sent him two passports and money for the trip,” he refused, because he was about to travel to Canada. It should also be noted — although Judge Robertson did not pick up on it — that, according to the 9/11 Commission Report (PDF, p. 252), Abu Hafs was opposed to the 9/11 attacks and “wrote Bin Laden a message basing opposition to the attacks on the Qur’an.”

Judge Robertson’s conclusion

In a final statement, Judge Robertson summed up his findings as follows:

The government’s problem is that its proof that Salahi gave material support to terrorists is so attenuated, or so tainted by coercion and mistreatment, or so classified, that it cannot support a successful criminal prosecution. Nevertheless, the government wants to hold Salahi indefinitely, because of its concern that he might renew his oath to al-Qaeda and become a terrorist on his release. That concern may indeed be well-founded. Salahi fought with al-Qaeda in Afghanistan (20 years ago), associated with at least half-a-dozen known al-Qaeda members and terrorists, and somehow found and lived among or with al-Qaeda cell members in Montreal. But a habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government’s prediction that he may do unlawful acts in the future — any more than a habeas court may rely on its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question, upon which the government had the burden of proof, was whether, at the time of his capture, Salahi was a “part of” al-Qaeda. On the record before me, I cannot find that he was.

What will happen to Salahi now?

Despite Judge Robertson’s thorough repudiation of the government’s claims, it is clear that Salahi will not be released anytime soon — if at all. Almost as soon as the ruling was announced, Attorney General Eric Holder responded to shrieks of alarm raised by Republican lawmakers (who couldn’t care what a judge had actually decided based on the evidence) by announcing that the government would appeal, and it may well be that, whatever happens, Salahi will remain as one of 47 prisoners that President Obama’s interagency Task Force recommended should be held indefinitely without charge or trial.

The very fact that this is being contemplated is a disgrace, of course, but what Salahi’s case reveals, above all, is how the Bush administration’s detention policies have fundamentally warped notions of justice, so that even those who claim to respect the rule of law are happy to hold a man forever, even if he wins a habeas petition, and also how they have had a baleful effect on the United States’ ability to recruit and protect informers.

On this first point, Judge Robertson explained that, although there was insufficient evidence to justify Salahi’s ongoing detention, the evidence of his activities in Canada “might well be enough to support a criminal charge of providing material support to al-Qaeda, if Salahi were criminally charged, and if the evidence were admissible in a criminal proceedings.” That is a big “if,” of course, given the inadmissibility of most of Salahi’s statements, but it should demonstrate, above all, how counter-productive was the use of torture on a man who was no more than a peripheral figure in al-Qaeda, beyond the easily-obscured fact that such treatment is illegal under domestic and international law.

Just as significant, however, are the revelations about Salahi (and Tarek El-Sawah) contained in the Washington Post article mentioned above. After noting, “The US government has rewarded them for their cooperation but has refused to countenance their release,” the Post’s reporter, Peter Finn, wrote, “Some military officials believe the United States should let them go — and put them into a witness protection program, in conjunction with allies, in a bid to cultivate more informants.” Finn spoke to W. Patrick Lang, a retired senior military intelligence officer, who explained, “I don’t see why they aren’t given asylum. If we don’t do this right, it will be that much harder to get other people to cooperate with us. And if I was still in the business, I’d want it known we protected them. It’s good advertising.”

Good advertising, indeed, and a point that echoes what veteran FBI interrogator Jack Cloonan told Jane Mayer of the New Yorker back in 2006. Reflecting on the self-defeating nature of brutality, Cloonan, an old school interrogator, who succeeded in securing confessions without the use of torture, told Mayer that resorting to such tactics would cut off “the possibility that other people with useful information about al-Qaeda [would] consider becoming informants.” As he explained, “You think all of this stuff about torture is going to make people want to come to us? That’s why I get upset when I hear people talking about stress positions, loud music, and dogs.”

Had he known what we know now, he would surely have added that publicizing the fact that Salahi was one of “the most significant informants ever to be held at Guantánamo,” but then insisting that he be held forever, is even more counter-productive. In Guantánamo, however, common sense has evaporated, and all that is left for those who have aided the United States are illusory escape routes that lead only to indefinite detention.

(‘’)

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). 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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Cageprisoners. Cross-posted on The Public Record.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), Guantánamo and Habeas Corpus: The Torture Victim and the Taliban Recruit (April 2010).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).

The Hill reported that Sen. Kit Bond (R-Mo.), the ranking member of the Intelligence Committee, stated, “While Holder’s Justice Department should appeal this outrageous decision, I’m not holding my breath. Holder seems more intent on closing Guantánamo Bay than keeping terrorists locked up where they belong.” The Hill also reported that Rep. Lamar Smith (R-Texas) sent a letter to Holder asking him to appeal the ruling, in which he wrote, “It is certainly possible, if not likely, that Mr. Slahi will re-engage in efforts to commit terrorist attacks against innocent Americans if allowed to go free. This ruling clearly puts the American people in danger and should not be allowed to stand.”

As it transpired, Eric Holder was not happy with the ruling either, and did not need to be slandered by Sen. Bond to issue his own complaint. Speaking from a meeting in Phoenix, Arizona, Holder said that, although “[w]e obviously respect the decision that the judge made, [h]opefully an appeals court will look at the evidence that we presented in the habeas proceeding and come to a contrary conclusion.”

The torture of Mohamedou Ould Slahi

The reasoning behind Judge Robertson’s ruling is not yet clear, as his opinion has not been publicly released. Noticeably, however, Slahi was subjected to several years of torture, which began soon after he was taken in by the Mauritanian authorities on November 20, 2001, at the request of the Bush administration. “My country turned me over, shortcutting all kinds of due process of law, like a candy bar to the United States,” he said in his Combatant Status Review Tribunal at Guantánamo in 2004.

After he was seized, he was transferred by the US to Jordan — one of at least 15 prisoners rendered to Jordan by the CIA between 2001 and 2004 — where he was held for eight months, and where, he said, what happened to him was “beyond description” and he was tortured “maybe twice a week, a couple times, sometimes more.” He was then transferred to the US prison at Bagram in Afghanistan for two weeks, and arrived in Guantánamo on August 4, 2002.

As the “highest-value detainee” at Guantánamo — in the days before Khalid Sheikh Mohammed and 13 other “high-value detainees” were flown in from secret CIA prisons in September 2006 — Slahi was again subjected to torture, which included prolonged isolation, prolonged sleep deprivation, beatings, death threats, and threats that his mother would be brought to Guantánamo and gang-raped. This program, which was implemented in May 2003, and augmented with further “enhanced interrogation techniques” authorized by defense secretary Donald Rumsfeld, culminated, in August 2003, in an incident when Slahi was taken out on a boat, wearing isolation goggles, while agents whispered, within earshot, that he was “about to be executed and made to disappear.” As Der Spiegel explained in an article in 2008, “He was so terrified that he urinated in his pants.”

After this, as Slahi himself described it (in a letter to his lawyers dated November 9, 2006), “I yes-sed every accusation my interrogators made. I even wrote the infamous confession about me was planning to hit the CN Tower in Toronto based on SSG [redacted] advise. I just wanted to get the monkeys off my back.”

However, his treatment was so severe that, in May 2004, Lt. Col. Stuart Couch of the Marine Corps, who had been assigned his case as a prosecutor the year before, resigned rather than pursuing the case. In a meeting with the chief prosecutor, Army Col. Bob Swann, Lt. Col. Couch “told Col. Swann that in addition to legal reasons, he was ‘morally opposed’ to the interrogation techniques ‘and for that reason alone refused to participate in [the Slahi] prosecution in any manner.’”

By all accounts, Slahi’s torture ended as soon as he began cooperating. As Der Spiegel explained in 2008, and the Washington Post reported last week, after he “broke,” he became one of Guantánamo’s most cooperative prisoners, granted special privileges, including fast food and a small garden plot, and regarded as a source of invaluable information — even though more skeptical observers might conclude that the information provided by a man broken by torture might, in fact, be less than reliable.

However, it is improbable that whatever tortured confessions were extracted from Slahi — who has persistently maintained that he had no prior knowledge of the 9/11 attacks — would have been enough for Judge Robertson to grant his habeas petition, unless it was, in addition, demonstrated to him that other sources alleging Slahi’s involvement with the 9/11 hijackers were also unreliable.

Doubts about Slahi’s significance

Here the US authorities’ claims about Slahi begin to look rather dubious. Although the 9/11 Commission Report described him as “a significant al-Qaeda operative” who “recruited 9/11 hijackers in Germany,” the more detailed narrative, as revealed in the report, is less conclusive. Instead, as I explained in my book The Guantánamo Files:

[I]t was stated that Ramzi bin al-Shibh and three of the 9/11 hijackers — Mohammed Atta, Marwan al-Shehhi and Ziad Jeddah — were traveling on a train in Germany when they met a man named Khalid El-Masri, and “struck up a conversation about jihad in Chechnya.” El-Masri told them to contact a man named Abu Musab (Slahi’s alias) in Duisburg, but when they met him, he told them it was difficult to get to Chechnya because travelers were generally detained in Georgia, and advised them to go to Afghanistan for training instead.

As I also explained:

Slahi himself has disputed this story, denying an allegation that he “recruited for jihad,” but even if it were true, it proves only that he was a recruiter for a war in Chechnya that was regarded by many Muslims as a legitimate struggle, who sent would-be recruits for training in long-established training camps in Afghanistan, and does not connect him in any meaningful way to 9/11.

Despite this, the US authorities have persistently presented his activities in Germany as more significant than the 9/11 Commission Report suggested, choosing to ignore the official story — that the hijackers attracted bin Laden’s attention once they were in Afghanistan — and claiming that Slahi arranged for one of them “to meet Osama bin Laden, and that this individual then swore allegiance to Osama bin Laden and became an important and influential al-Qaeda member.”

The US government’s star witness is Ramzi bin al-Shibh, and as Der Spiegel explained in 2008, the recruitment story originally came from him. However, bin al-Shibh was also tortured in US custody, and, in addition, as Der Spiegel noted:

The German investigators familiar with the history leading up to the 9/11 attacks are more cautious in their assessment of Slahi’s position within al-Qaeda. They say that bin al-Shibh’s statements about Slahi recruiting the attackers has “legend status,” and that none of their information supports his assertions.

We will have to wait for Judge Robertson’s opinion to be released to discover whether these were his conclusions too, but it certainly seems possible, just as it also seems probable that the authorities’ attempts to implicate Slahi in all manner of other plots — in particular Ahmed Ressam’s plot to blow up Los Angeles airport in 1999 — are also overblown. Slahi said that he falsely confessed to being part of Ressam’s plot while being tortured in Jordan, and explained that, although he moved to Canada in 1998, hoping to find work as an electrical engineer, he returned to Mauritania in January 2000 because he was kept under constant surveillance by the intelligence services. “Wherever I went I had people right behind me at the market watching my butt,” he said in his tribunal at Guantánamo. “I said what the heck? This is not the life I want to live.”

Overlooked in the assertions that Slahi was a key figure in the 9/11 attacks, rather than, perhaps, a peripheral figure in jihadi circles, is a specific explanation for why the Americans asked the Mauritanian authorities to detain him in November 2001. As I also explained in The Guantánamo Files:

It was not as if he was an unknown quantity. As well as being questioned in Canada, he had been investigated in Germany, had been questioned in Senegal on his way to Mauritania in January 2000, and had also been questioned on two occasions by the Americans themselves: by three FBI agents and “another guy from the Department of Justice” in Mauritania in February 2000, and again in October 2001, when an American agent took part in an interrogation and, according to Slahi, threatened to bring in “black people” to torture him.

If he really had anything to hide, after all this, it seems unlikely that he would have so willingly waited around for the Mauritanian authorities to pick him up at his house on November 20, 2001, when his long ordeal began.

While Mohamedou Ould Slahi’s story, stripped of its core allegations, begs questions about what kind of involvement with jihadi groups is necessary for a judge to deny a Guantánamo prisoner’s habeas corpus petition and hurl him back into ongoing detention without charge or trial, a case that followed Slahi’s a few days later demonstrated that being in Afghanistan at the time of the US-led invasion in October 2001, and being in some sort of proximity to Arab forces fighting with the Taliban, was enough for a prisoner to lose their habeas petition.

A Taliban recruit loses his habeas petition

The prisoner in question, Mukhtar al-Warafi, a Yemeni who was 27 years old when he was seized in northern Afghanistan in November 2001, survived a massacre in a mud-walled fortress, Qala-i-Janghi, where hundreds of prisoners — mostly, but not all foot soldiers for the Taliban — had been taken after surrendering to the Northern Alliance. According to a statement read out by a military officer assigned to represent him at a review board at Guantánamo, al-Warafi studied medical procedures in Yemen, “had nothing to do whatsoever with the Taliban,” and went to Afghanistan “to help provide medical assistance to the poor and the public.”

As with Slahi, the opinion of the judge in his case, Royce C. Lamberth, has not yet been released, but it is certain that Judge Lamberth will not have been convinced by al-Warafi’s story, and will not have accepted his statement that, although he admitted traveling to Khawaja Ghar in Afghanistan and carrying an AK-47, he said that he had it for self-defense and that it was given to him by a doctor he worked with at a clinic, nor his statement that he provided first aid at the al-Ansar clinic in Kunduz, for all types of people, but not “to wounded soldiers.”

I am not yet in any position to say whether I think Judge Lamberth made the correct call in Mukhtar al-Warafi’s case, but as with other cases where peripheral figures involved with the Taliban have been consigned to indefinite detention as a result of losing their habeas petitions, I must reiterate that each of these results does nothing to justify the Bush administration’s detention policies in the “War on Terror.”

Instead, rulings like these demonstrate only that, in defining who can legitimately continue to be held at Guantánamo, the Executive, lawmakers, the Supreme Court and the lower courts have all allowed an unjustifiable situation to prevail in which minor foot soldiers are still being equated with terrorists. This is in spite of the fact that it is patently obvious that the former should, all along, have been held as prisoners of war protected by the Geneva Conventions, rather than being flown halfway around the world to an experimental interrogation camp where large numbers of them were, in one way or another, subjected to variations of the “enhanced interrogation techniques” to which Mohamedou Ould Slahi was subjected.

To critics of the habeas cases, like the Brookings Institute’s Benjamin Wittes and Robert Chesney, the seeming discrepancy between the ruling in the cases of Mohamedou Ould Slahi and Mukhtar al-Warafi will only reinforce the opinions they voiced in an op-ed for the Washington Post back in February, when they claimed that judges were making wildly different rulings because, when “[t]he Supreme Court asserted jurisdiction over Guantánamo in summer 2008,” the justices “coyly refrained from giving any guidance on the myriad important questions that the cases it authorized would predictably generate.”

Wittes and Chesney want Congress to establish new rules, but, in a letter to the Post, David Cole of the Center for Constitutional Rights demolished this argument, pointing out that that “their complaints are predicated on a naive view of both the judicial process and the legislative process, and their prescription is unlikely to solve the ‘problem’ they identify.”

Cole continued:

No one should be surprised that different judges reach different results on difficult legal issues. That’s why we fight about judicial appointments and why we have an appellate process that facilitates uniform rules.

Nor is legislation likely to reduce the disagreements. First, it is wildly optimistic to think that this Congress could agree on a detention standard. Second, the inquiries involved — such as assessing whether statements are voluntary or coerced, how far the “taint” from a coerced statement extends to other evidence, or whether an individual poses a threat that warrants preventive detention — are not susceptible to bright-line rules, but require careful case-by-case application of standards. It’s a job for judges, not Congress.

Cole is undoubtedly correct. However, what these recent rulings have shown is not that anyone should have a problem with judges reaching different verdicts, but that in ordering the release of Mohamedou Ould Slahi, but not the release of Mukhtar al-Warafi, the problems are not with the judges, who can discern whether there is any evidence or not, but with the fundamental confusion between al-Qaeda and the Taliban. This confusion is enshrined in the Authorization for Use of Military Force, passed by Congress in the wake of the 9/11 attacks, which provides the basis for detaining those associated with either al-Qaeda or the Taliban.

If no proof was found that Mohamedou Ould Slahi was associated with al-Qaeda, that should be enough to secure his release. If, on the other hand, Mukhtar al-Warafi was associated with the Taliban, on the very fringes of al-Qaeda activity in Afghanistan during the US-led invasion, I cannot see how that justifies his ongoing detention.

There are, we are told, a number of terrorists in Guantánamo — as many as 35, according to the recommendations made by President Obama’s interagency Task Force, regarding those who should be put forward for trials. On last week’s evidence, however, neither Mohamedou Ould Slahi nor Mukhtar al-Warafi qualify as terrorists, and neither, I believe, should continue to be held.

POSTSCRIPT: The unclassified opinion in the Slahi ruling is now available (PDF), and I will be writing an update soon.

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). 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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. You can Digg the original here.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Judge Orders Release From Guantánamo Of Unwilling Yemeni Recruit (December 2009), Serious Problems With Obama’s Plan To Move Guantánamo To Illinois (December 2009), Appeals Court Extends President’s Wartime Powers, Limits Guantánamo Prisoners’ Rights (January 2010), Fear and Paranoia as Guantánamo Marks its Eighth Anniversary (January 2010), Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention (January 2010), The Black Hole of Guantánamo (March 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010).

Margolis decided that an internal report (PDF) into the conduct of John Yoo and Jay S. Bybee, who wrote the notorious memos in August 2002, which attempted to redefine torture so that it could be used by the CIA, was mistaken in concluding that both men were guilty of “professional misconduct,” and should be referred to their bar associations for disciplinary action.

Instead, Margolis concluded, in a memo (PDF) that shredded four years of investigative work by the Office of Professional Responsibility (OPR), the DoJ’s ethics watchdog, that Yoo and Bybee had merely exercised “poor judgment.” As lawyers in the Office of Legal Counsel, which is charged with providing objective legal advice to the Executive branch on all constitutional questions, Yoo and Bybee attempted to redefine torture as the infliction of physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” or the infliction of mental pain which “result[s] in significant psychological harm of significant duration e.g. lasting for months or even years.”

Yoo, notoriously, had lifted his description of the physical effects of torture from a Medicare benefits statute and other health care provisions in a deliberate attempt to circumvent the UN Convention Against Torture, signed by President Reagan in 1988 and incorporated into US federal law, in which torture is defined as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person …

Obsessed with finding ways in which “severe pain” could be defined so that the CIA could torture detainees and get away with it, Yoo drew on some truly revolting examples of physical torture, citing a particularly brutal case, Mehinovic v. Vuckovic, in which, during the Bosnian war, a Serb soldier named Nikola Vuckovic had tortured his Bosnian neighbor, Kemal Mehinovic, with savage and sadistic brutality. Yoo dismissed the possibility that other torture techniques — waterboarding, for example, which is a form of controlled drowning, and prolonged sleep deprivation — might cause “significant psychological harm of significant duration,” or physical pain rising to a level that a judge might regard as torture.

In both of his definitions, however, Yoo was clearly mistaken. No detailed studies have yet emerged regarding the prolonged psychological effects of the torture program approved by Yoo and Bybee, largely because lawyers for the “high-value detainees” in Guantánamo have been prevented — first under Bush, and now under Obama — from revealing anything publicly about their clients.

However, lawyers for Ramzi bin al-Shibh, who was charged in the Bush administration’s Military Commissions, made a good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in a similar state before his four years in secret CIA prisons.

An even more pertinent example is Abu Zubaydah, a supposed “high-value detainee,” held in secret CIA prisons for four and a half years, for whom the torture program was originally developed. Zubaydah’s case may well be the most shocking in Guantánamo, because, although he was subjected to physical violence and prolonged sleep deprivation, was confined in a small box and was waterboarded 83 times, the CIA eventually concluded that he was not, as George W. Bush claimed after his capture, “al-Qaeda’s chief of operations,” but was, instead, a “kind of travel agent” for recruits traveling to Afghanistan for military training, who was not a member of al-Qaeda at all.

Zubaydah was clearly mentally unstable before his capture and torture, as the result of a head wound sustained in Afghanistan in 1992, but as one of his lawyers, Joe Margulies, explained in an article in the Los Angeles Times last April, his subsequent treatment in US custody has caused a profound deterioration in his mental health that would certainly constitute “significant psychological harm of significant duration.” Margulies wrote:

No one can pass unscathed through an ordeal like this. Abu Zubaydah paid with his mind. Partly as a result of injuries he suffered while he was fighting the communists in Afghanistan, partly as a result of how those injuries were exacerbated by the CIA and partly as a result of his extended isolation, Abu Zubaydah’s mental grasp is slipping away. Today, he suffers blinding headaches and has permanent brain damage. He has an excruciating sensitivity to sounds, hearing what others do not. The slightest noise drives him nearly insane. In the last two years alone, he has experienced about 200 seizures.

Moreover, when it came to defining physical torture, the OPR Report’s authors noted that, as so often in the memos, Yoo had ignored relevant case history. The key passage in the report deals with the US courts’ decisions regarding the Torture Victim Protection Act (TVPA). Yoo had drawn on Mehinovic for his description of physical torture “of an especially cruel and even sadistic nature,” and, as the authors noted, he also argued that “only ‘acts of an extreme nature’ that were ‘well over the line of what constitutes torture’ have been alleged in TVPA cases.”

The authors continued:

Thus, the memorandum asserted, “there are no cases that analyze what the lowest boundary of what constitutes torture.” [sic]

That assertion was misleading. In fact, conduct far less extreme than that described in Mehinovic v. Vuckovic was held to constitute torture in one of the TVPA cases cited in the appendix to the Bybee memo. That case, Daliberti v. Republic of Iraq, 146 F. Supp. 2d 146 (D.D.C. 2001), held that imprisonment for five days under extremely bad conditions, while being threatened with bodily harm, interrogated, and held at gunpoint, constituted torture with respect to one claimant.

A close inspection of Daliberti (which dealt with US personnel seized by Iraqi forces between 1992 and 1995) is revealing, as the D.C. District Court held that “Such direct attacks on a person and the described deprivation of basic human necessities are more than enough to meet the definition of ‘torture’ in the Torture Victim Protection Act.” The judges based their ruling on the following:

David Daliberti and William Barloon allege that they were “blindfolded, interrogated and subjected to physical, mental and verbal abuse” while in captivity. They allege that during their arrests one of the agents of the defendant threatened them with a gun, allegedly causing David Daliberti “serious mental anguish, pain and suffering.” During their imprisonment in Abu Ghraib prison, Daliberti and Barloon were “not provided adequate or proper medical treatment for serious medical conditions which became life threatening.” The alleged torture of Kenneth Beaty involved holding him in confinement for eleven days “with no water, no toilet and no bed.” Similarly, Chad Hall allegedly was held for a period of at least four days “with no lights, no window, no water, no toilet and no proper bed.” Plaintiffs further proffer that Hall was “stripped naked, blindfolded and threatened with electrocution by placing wires on his testicles … in an effort to coerce a confession from him.”

Yoo and his apologists will undoubtedly quibble yet again. There is the threat of electrocution, a threat made with a gun, and deprivation of water, in one case for eleven days, none of which feature in the OLC’s memos. However, outside of the specific torture program approved by the OLC, numerous prisoners who were held at Bagram before being transported to Guantánamo have stated that they were actually subjected to electric shocks while hooded (rather than being threatened with electrocution), and that being threatened at gunpoint was a regular occurrence.

Moreover, it has also been stated that the withholding of medication was used with Abu Zubaydah after his capture, when he was severely wounded, and it should also be noted that numerous ex-prisoners have stated that, in Guantánamo, it was routine for medical treatment to be withheld unless prisoners cooperated with their interrogators (PDF).

Most of all, however, a comparison between Daliberti and the OLC memos reveals the extent to which the techniques approved by Yoo resulted in “severe pain or suffering, whether physical or mental,” which clearly exceeded that endured by David Daliberti and his fellow Americans in Iraq.

First of all, there is waterboarding, an ancient torture technique that has long been recognized as torture by the United States. As Eric Holder noted during his confirmation hearing in January 2009, “We prosecuted our own soldiers for using it in Vietnam.” With this in mind, it ought to be inconceivable that anyone could argue that waterboarding Abu Zubaydah 83 times and Khalid Sheikh Mohammed 183 times could be anything less than torture.

In addition, the prolonged isolation, prolonged sleep deprivation, nudity, hooding, shackling in painful positions, cramped confinement, physical abuse, dousing in cold water, beatings and threats endured by the CIA’s “high-value detainees,” as revealed in the leaked ICRC report (PDF) based on interviews with the 14 men transferred to Guantánamo from secret CIA prisons in September 2006, completes a picture that surely “shocks the conscience” more than the torture described in Daliberti, especially as those held were subjected to these techniques for far longer periods.

Should any further doubts remain about the definition of torture — and how it was implemented in the “War on Terror” — these should have been dispelled in January 2009, when, shortly before President Bush left office, Susan Crawford, the retired military judge who was the Convening Authority for the Military Commissions at Guantánamo (responsible for deciding who should be charged) granted the most extraordinary interview to Bob Woodward of the Washington Post.

Crawford told Woodward that the reason she had not pressed charges against Mohammed al-Qahtani, a Saudi who was initially put forward for a trial by Military Commission, along with Khalid Sheikh Mohammed, Ramzi bin al-Shibh and three other men, was because he was tortured in Guantánamo. “We tortured Qahtani,” she said. “His treatment met the legal definition of torture.”

“The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent,” Crawford explained. “You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge,” and to conclude that it was torture.

As I explained in an article at the time:

Al-Qahtani’s treatment was severe, of course. As Time magazine revealed in an interrogation log that was made available in 2005 (PDF), he was interrogated for 20 hours a day over a 50-day period in late 2002 and early 2003, when he was also subjected to extreme sexual humiliation, threatened by a dog, strip-searched and made to stand naked, and made to bark like a dog and growl at pictures of terrorists. On one occasion he was subjected to a “fake rendition,” in which he was tranquilized, flown off the island, revived, flown back to Guantánamo, and told that he was in a country that allowed torture.

In addition, as I explained in my book The Guantánamo Files:

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

The techniques used on al-Qahtani were approved by defense secretary Donald Rumsfeld, but the impetus came from the torture memos written and authorized by Yoo and Bybee. Moreover, although Crawford was not so principled when it came to considering the treatment to which the “high-value detainees” had been subjected in CIA custody — on the basis, presumably, that such information would be easier to conceal in a Military Commission than al-Qahtani’s well-publicized ordeal — it is clear from the ICRC report on the “high-value detainees” that their treatment also “met the legal definition of torture.” In addition, it seems probable that the treatment of the 80 other prisoners held in secret CIA prisons, the treatment of prisoners in Afghanistan, before their arrival in Guantánamo, and the treatment of over a hundred prisoners in Guantánamo, who were subjected to versions of the “enhanced interrogation techniques” used on al-Qahtani would also constitute torture.

For these reasons, David Margolis’ whitewash of John Yoo and Jay S. Bybee cannot be the final word. In his memo to Attorney General Eric Holder, dismissing the report’s conclusions, Margolis tried to claim that it was important to remember that Yoo and Bybee were working in extraordinary circumstances, striving to prevent another major terrorist attack. In an early version of the report, OPR head Mary Patrice Brown dismissed this argument, asserting that “Situations of great stress, danger and fear do not relieve department attorneys of their duty to provide thorough, objective and candid legal advice, even if that advice is not what the client wants to hear.”

This is correct, but another authoritative source also explains why there are no excuses for twisting the law out of all shape in an attempt to justify torture. As the UN Convention Against Torture stipulates (Article 2.2), “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

The UN Convention also stipulates (Article 4. 1) that signatories to the Convention “shall ensure that all acts of torture are offences under its criminal law” and requires each State, when torture has been exposed, to “submit the case to its competent authorities for the purpose of prosecution” (Article 7.1). As with Article 2.2, there are no excuses for not taking action, and that includes political expediency, or, as Barack Obama described it, “a belief that we need to look forward as opposed to looking backwards.”

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). 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 January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout. You can Digg the original article here.

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), Six in Guantánamo Charged with 9/11 Murders: Why Now? And What About the Torture? (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Guantánamo Trials: Another Torture Victim Charged (Abdul Rahim al-Nashiri, July 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison , Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA) (all May 2009) and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), UK Judges Compare Binyam Mohamed’s Torture To That Of Abu Zubaydah (November 2009), UN Secret Detention Report Asks, “Where Are The CIA Ghost Prisoners?” (January 2010), Binyam Mohamed: Evidence of Torture by US Agents Revealed in UK (February 2010). Also see the extensive archive of articles about the Military Commissions.

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), US Torture Under Scrutiny In British Courts (July 2009), What The British Government Knew About The Torture Of Binyam Mohamed (August 2009), Torture in Bagram and Guantánamo: The Declaration of Ahmed al-Darbi (September 2009), UK Judges Order Release Of Details About The Torture Of Binyam Mohamed By US Agents (October 2009), “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition (December 2009), Dark Revelations in the Bagram Prisoner List (January 2010), and also see the extensive Binyam Mohamed archive.

And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), The Trials of Omar Khadr, Guantánamo’s “child soldier” (November 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Guantánamo’s shambolic trials (February 2008), Torture allegations dog Guantánamo trials (March 2008), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Former Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim (Lt. Col. Darrel Vandeveld on Mohamed Jawad, January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Bush Era Ends With Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Torture In Guantánamo: The Force-feeding Of Hunger Strikers (June 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (Fouad al-Rabiah, September 2009), UK Court Orders Release Of Torture Evidence In The Case Of Shaker Aamer, The Last British Resident In Guantánamo (December 2009), Shaker Aamer: UK Government Drops Opposition To Release Of Torture Evidence (December 2009), Afghan Nobody Faces Trial by Military Commission (January 2010), Murders at Guantánamo: Scott Horton of Harper’s Exposes the Truth about the 2006 “Suicides” (January 2010), Two Algerian Torture Victims Are Freed from Guantánamo (January 2010), and the extensive archive of articles about the Military Commissions.

On Monday, District Court Judge Thomas F. Hogan handed the government its ninth victory (against 31 losses to date) in the habeas corpus petitions of the prisoners held at Guantánamo, ruling that the government had established, by a preponderance of the evidence, that Musa’ab al-Madhwani, a 28-year old Yemeni, could continue to be held indefinitely, because of his connections with al-Qaeda.

As the Washington Post explained, however, although Judge Hogan “said that the government had met its burden in proving the accusations … he did not think Madhwani was dangerous.” Noting that he has been a “model prisoner” since his arrival at Guantánamo in October 2002, he explained, “There is nothing in the record now that he poses any greater threat than those detainees who have already been released.”

Moreover, Judge Hogan refused to rely on any statements that al-Madhwani had made to interrogators at Guantánamo, ruling that they were “tainted by abusive interrogation techniques,” to which he was subjected in the weeks after his capture, before his arrival at Guantánamo, when he was sent to the “Dark Prison” near Kabul, a facility run by the CIA, which, in numerous accounts by released prisoners, resembled nothing less than a medieval torture dungeon, with the addition of extremely loud music and noise 24 hours a day.

Judge Hogan did, however, accept statements that al-Madhwani made during his Administrative Review Board at Guantánamo in 2005, which, he said, were not tainted because they were made years after the abuse took place. Al-Madhwani’s lawyers had argued that these statements should also have been excluded, stating, as the Post put it, that they were “contaminated because he was still worried about upsetting his captors.” One of his attorneys, Darold W. Killmer, explained, “He was threatened that if he changed his story, he would be sent back to a place worse than at the ‘Dark Prison.’”

The Ramzi bin al-Shibh connection

In truth, it was always going to be difficult to convince a judge to accept al-Madhwani’s habeas petition, for the simple reason that he was seized after a raid on an apartment block in Karachi, Pakistan, and a firefight with the Pakistani authorities, on September 11, 2002, with Ramzi bin al-Shibh, one of the five alleged 9/11 co-conspirators, and Hassan bin Attash, the brother of Walid bin Attash, another of the alleged 9/11 co-conspirators.

Unlike al-Madhwani, and five other Yemenis seized after the firefight, who were held in the “Dark Prison” for up to six weeks, before they were flown to Guantánamo, bin al-Shibh was rendered to Thailand after his capture, and held for four years in secret CIA prisons, subjected to an array of “enhanced interrogation techniques,” and bin Attash, after a week in the “Dark Prison,” was rendered to Jordan, where, despite being just 17 years old at the time of his capture, he was held for 16 months in one of the CIA’s proxy torture prisons, before being flown to the US prison at Bagram airbase in Afghanistan, and then on to Guantánamo in September 2004.

With these kinds of connections, it’s easy to see why a judge would conclude that al-Madhwani was connected to al-Qaeda, and would accept, as the Post described it, the government’s allegations that he “traveled to Pakistan to join al-Qaeda, trained at an al-Qaeda camp, traveled with al-Qaeda members in Afghanistan and Pakistan and engaged in a firefight with Pakistani authorities before his arrest.”

Musa’ab al-Madhwani’s story

As al-Madhwani explained at his Administrative Review Board, he arrived in Afghanistan in August 2001, when he was 21 years old, at the urging of a recruiters in his homeland, and trained briefly at al-Farouq (a training camp associated with Osama bin Laden in the years before the 9/11 attacks) until it closed immediately after the attacks. After spending a few months in guest houses in Afghanistan, he made his way to Pakistan via Khost, traveling with other Arabs, Pakistanis and Afghans, and then, after trying unsuccessfully to return home via Iran, where, he said, he was “beaten and questioned” before being refused entry, spent ten months being moved around various houses in Lahore, Quetta and Karachi, waiting for an opportunity to return home that never came.

Moreover, when he explained the situation in Karachi at the time of his arrest, an even less militant picture emerged. “The group I was arrested with were staying in two apartments,” he said. “One person from each apartment refused to surrender and fought the Pakistani forces sent to arrest us. I was in the group that chose to surrender.” He added that the Pakistanis were “thankful for our cooperation and surrendering without fighting.” He then explained that there were seven men in his apartment, including one who was killed, who had only been there for about five days, and that two other men — presumably bin al-Shibh and bin Attash — shared the other apartment with a family.

In his Review Board, he spoke only briefly about the “Dark Prison,” but it was easy to understand why Judge Hogan, who also spoke to him by video-link from Guantánamo, concluded that his “allegations about abusive interrogations were credible,” and, noticeably, added that they “were not challenged by government lawyers.” In 2005, when a Board Member asked him, “Are you holding anything back from the interrogators?” he replied, “That is impossible, because before I came to the prison in Guantánamo Bay I was in another prison in Afghanistan, under the ground [and] it was very dark, total dark, under torturing and without sleep. It was impossible that I could get out of there alive. I was really beaten and tortured.”

If this picture indicates someone who, as I explained in The Guantánamo Files, with reference to other prisoners seized elsewhere in Pakistan, was a “recent Taliban recruit who ended up in Karachi as part of an extended safe house system that was sheltering all Arabs from arrest, and not just those who were committed to al-Qaeda,” it is, I believe, a picture that shifts into sharper focus through the stories of the other five men seized with al-Madhwani, aged between 21 and 28 at the time of their capture, none of whom have yet had their habeas corpus petitions ruled upon by a judge.

The other five men seized with Musa’ab al-Madhwani

Ha’il al-Maythali, for example, explained in Guantánamo that he went to Afghanistan in November 2000 to “fight in the jihad,” and admitted ferrying supplies on the back lines near Kabul, but said that he was only on the front lines for a week because he had no military experience. The only one of the five to mention the “Dark Prison,” he said that “there was very bad torture conducted on people,” including himself, which was “so bad that he knew by making up and agreeing to the training it would stop the torture.” He added that “his testicles were disfigured to the point where they cannot be repaired.”

Said Nashir was accused of attending the al-Farouq camp from July to September 2001, and also attending two speeches by Osama bin Laden while he was there, which was typical of the experiences of new recruits, and Shawki Balzuhair was accused of traveling to Afghanistan in April or May 2001, attending al-Farouq, and serving on the Taliban front lines near Bagram. A greater degree of commitment was hinted at in the case of Ayoub Ali Saleh, who reportedly traveled to Afghanistan to join the jihad in 2000, and trained extensively at al-Farouq, but Bashir al-Marwalah’s story is probably the most revealing.

Al-Marwalah admitted traveling to Afghanistan in September 2000 and training at al-Farouq and another camp, but said that he then returned to Yemen to see his family, and especially his father, who was ill. He said that he then returned to Afghanistan in August 2001 and attended al-Farouq again, but refuted an allegation that he had participated in military operations against the US-led coalition, and said that he had fled to Pakistan after the US-led invasion began. When the tribunal asked him why he had gone to Afghanistan, he said that he wanted to train to fight in Chechnya, and when he was asked, “Are you a member of al-Qaeda?” he said, “I don’t know. I know I am an Arab fighter.”

I may be wide of the mark in my assessment of Musa’ab al-Madhwani and the other five men mentioned above, but no other information has been forthcoming to suggest that this is the case — from Ramzi bin al-Shibh or Hassan bin Attash, for example, in thinly-disguised references to allegations made by “senior al-Qaeda operatives,” tying the men into any terrorist plots or operations.

Challenging indefinite detention

While the others, presumably, await rulings on their habeas corpus petitions, al-Madhwani joins the other eight prisoners whose petitions failed in a peculiar legal netherworld, no longer regarded as “enemy combatants” by the Obama administration, but still detained indefinitely as though they were. This is in spite of the fact that, in most of these cases, the men in question are not the “terrorists” of right-wing propaganda, but are, instead, unacknowledged prisoners of war, who, instead of being held according to the Geneva Conventions, have had to endure long imprisonment in an experimental prison devoted to dehumanizing isolation and coercive interrogations, and remain, essentially, as a peculiar category of prisoner with no legal or historical precedent.

For someone like al-Madhwani, regarded by the judge as posing no danger, it is, perhaps, time for an appeal that draws on a case overlooked by Judge Hogan: that of Yasim Barardah, a Yemeni whose habeas petition was granted by Judge Ellen Segal Huvelle on March 31 this year.

In her ruling, Judge Huvelle suggested that the prisoners in Guantánamo were akin to prisoners of war, but with the ability to be released if it could be demonstrated that they no longer posed a threat to the United States. Judge Huvelle drew on the Authorization for Use of Military Force, passed by Congress on September 18, 2001, which authorized the President to “use all necessary and appropriate force” against those involved in the 9/11 attacks, or those who supported them. The AUMF is relied upon by the Obama administration to justify the detention of the prisoners at Guantánamo, but, as Judge Huvelle explained, it “does not authorize unlimited, unreviewable detention,” but instead authorizes holding people “in order to prevent any future acts of international terrorism”; in other words, “the AUMF does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining the battle, and it certainly cannot be read to authorize detention where its purpose can no longer be attained.”

And that, I think, based on Judge Hogan’s comments, is a pretty straightforward definition of the position in which Musa’ab al-Madhwani finds himself, seven years and three months after his capture.

Note: The Pentagon referred to Musa’ab al-Madhwani as Musab al-Mudwani, or Musab al-Madoonee.

POSTSCRIPT April 2010: I have not found the opportunity to review Judge Hogan’s unclassified opinion (PDF), which was made available on January 6, 2010, but I wish to make it clear that my presumption that the capture of al-Madhwani had anything to do with the capture, around the same time, of Ramzi bin al-Shibh and Hassan bin Attash is clearly mistaken. The events appear to be entirely unconnected, as al-Madhwani was seized several miles away from the apartment occupied by bin al-Shibh and bin Attash. In my defense, I can only state that I was working with the available material, and had succumbed to a narrative that the Pentagon and the Justice Department wished to portray, even though it was untrue.

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). 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, published in March 2009, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published on the Huffington Post and CounterPunch. Cross-posted on uruknet.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009), A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions (September 2009), 75 Guantánamo Prisoners Cleared For Release; 31 Could Leave Today (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Justice Department Pointlessly Gags Guantánamo Lawyer (November 2009), Judge Orders Release Of Algerian From Guantánamo (But He’s Not Going Anywhere) (November 2009), Innocent Guantánamo Torture Victim Fouad al-Rabiah Is Released In Kuwait (December 2009), What Does It Take To Get Out Of Obama’s Guantánamo? (December 2009).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).

Despite the fact that the “War on Terror” was launched over eight years ago to pursue those responsible for the 9/11 attacks, and despite the fact that Attorney General Eric Holder noted, in a statement announcing the trial, that the opportunity for the relatives of the 9/11 victims “to see the alleged plotters of those attacks held accountable in court” had been “too long delayed,” Republican critics immediately leapt on the announcement, with Senate minority leader Mitch McConnell describing it as “a step backwards for the security of our country” that “puts Americans unnecessarily at risk.”

McConnell, former Vice President Dick Cheney and others who have spent most of the year shamelessly playing the fear card about bringing Guantánamo prisoners to the US mainland to face trials ought to be ashamed of themselves, as there is no reason to delay justice any longer in the case of these men, and every reason to decry the fact that, instead of being prosecuted shortly after their capture, they were diverted into a lawless program of incommunicado detention and torture that threatened to derail the possibility that they could be brought to justice at all.

In the case of Khalid Sheikh Mohammed, for example, the decision to prosecute him in a federal court comes over six years late. Despite having confessed to his involvement in the 9/11 attacks to an al-Jazeera reporter before his capture by US forces in March 2003, he was held for three and a half years in secret prisons run by the CIA, where he was subjected to torture (including waterboarding, a form of controlled drowning), in a violent and misguided attempt to secure “actionable intelligence.” Instead of achieving its desired result, this vile program appears to have prevented no actual planned terrorist attack, and led only to the generation of countless false leads, which wasted the resources of the intelligence services, and also, of course, led to the creation of a global network of secret prisons in which, distressingly, torture only begat more torture.

Khalid Sheikh Mohammed is the most notorious of the five men, but the others — Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — were also tortured in secret CIA prisons for up to four years, and, as with KSM, the decision to try them in federal courts is most noteworthy for finally bringing to an end the scandalous flight from justice and the law that led to their secret detention and torture.

The problems with the Military Commissions

However dismal and compromised this story is, it at least has more to recommend it than the simultaneous announcement that five other prisoners will not face federal court trials, but will, instead, face trials by Military Commission. This alternative judicial system — for “terror suspects” only — was set up by former Vice President Dick Cheney in November 2001, and struggled to establish anything resembling legitimacy throughout its seven-year existence, securing only three dubious verdicts, and attracting ferocious opposition from its own government-appointed military defense attorneys, and also from a number of prosecutors who resigned, including Lt. Col. Darrel Vandeveld and the former chief prosecutor, Col. Morris Davis, who all recognized that it was rigged to disguise the use of torture and to secure convictions.

Amended by the Obama administration and by Congress, the Commissions still lack legitimacy, with gray areas involving the admissibility of coerced confessions and hearsay evidence, and a widespread conviction amongst legal experts that federal courts have a proven track record in dealing with terrorism cases that the Commissions can never hope to emulate.

Moreover, although Eric Holder claimed on Friday that the revised Commission process “will be fair and that convictions obtained will be secure,” he neglected to mention that, this summer, senior administration officials conceded that the proposed charge of material support for terrorism — a longtime mainstay of the Commissions from 2006 onwards, when they were revived by Congress after being ruled illegal by the Supreme Court — may well be subject to successful court appeals. What makes the decision to proceed with the Commissions even more ludicrous is that the government also admits that no such problems exist with prosecuting material support for terrorism in federal courts.

In addition, the very existence of a two-tier judicial system should be enough to set alarm bells ringing, as it suggests — quite correctly, I believe — that the government is hedging its bets when it comes to justice, proceeding with federal court trials when it believes that it will secure successful prosecutions, and reserving the Commissions for other cases in which it fears that it may fail, because the evidence is not only contaminated by the use of torture, but is also weak.

In his announcement about the trials, Eric Holder stated that the “decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed and that was announced in July,” adding that the protocol “sets forth a number of factors — including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated — that must be considered.” The process has therefore been presented as being based on clear-cut decisions — whether the alleged offenses took place on the US mainland (federal court trials) or elsewhere (Military Commissions) — but in reality Holder let slip that the decisions would be based on whether or not the government thinks it will secure victory. The key is that phrase, “the manner in which the case was investigated”; in other words, how the supposed evidence was gathered.

I’ve been railing against the proposed revival of the Commissions since May, when President Obama first announced it in a major speech on national security, and I remain as confused and depressed about the proposals as I did back then. Glenn Greenwald has also been implacably opposed to the proposals, and on Friday he succinctly summed up the significance of the government’s failure to hold only federal court trials as follows: “A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.”

The government has not yet announced how many of the remaining 215 Guantánamo prisoners will be put forward for trials — either in federal court or by Military Commission — but ProPublica reported on Friday that, although “Justice Department officials said the cases of 40 detainees have been referred to government prosecutors for possible prosecution,” another administration official conceded that “it was unlikely that charges would be brought against more than 30.” This figure of a maximum of 40 prisoners is somewhat encouraging, as it corresponds with the numbers quoted in intelligence reports over the years, but the government is not off to an encouraging start, because, beyond the five men put forward for the 9/11 trial, the choice of the five other men put forward for trials by Military Commission — all of whom were previously charged under the Bush administration — is disheartening, to say the least.

The five prisoners put forward for trial by Military Commission

One is Omar Khadr, the Canadian who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002. Khadr should have been treated as a juvenile prisoner, and rehabilitated rather than punished, but he was subjected to appalling brutality, even though, to this day, the evidence suggests that he was not responsible for the crime for which he will be charged — the killing of a US soldier with a grenade — as, at the time, he was face down and unconscious under a pile of rubble. In addition, it remains as doubtful as it always has that there was anything extraordinary about the context of his capture (as part of a group of men engaged in combat in a war zone), and that attempts to imbue it with anything related to terrorism are simply misguided.

Khadr’s case is undoubtedly the most disappointing of the five, but the other four cases are also troubling, firstly because there appears to be no justifiable basis for not pursuing them in federal courts, and, in some cases, because the very basis for prosecution seems to be in doubt.

In the case of Abdul Rahim al-Nashiri, a “high-value detainee” seized in the United Arab Emirates in November 2002, and held in secret CIA prisons for nearly four years, the main problem is that he, along with KSM and Abu Zubaydah, was waterboarded in US custody, and claimed, in his tribunal at Guantánamo in 2007, that he had made false allegations because he was tortured. He said that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots — the attack on the USS Limburg, other plans to bomb American ships in the Gulf, a plan to hijack a plane and crash it into a ship, and claims that Osama bin Laden had a nuclear bomb — in order to get his captors to stop torturing him. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

Moreover, as his attorney, Nancy Hollander, explained on Friday (as reported on Daily Kos), “his case was first investigated as a criminal case, and the only reason to try him in a military commission is that they do not have the evidence to go to a legitimate court.”

The other three are not even accused of involvement in specific attacks. Ibrahim al-Qosi, a Sudanese prisoner who was charged in the Commissions’ first incarnation in 2004, and again in 2007, was only finally arraigned on November 19, 2008, when the major claim against him — that he was responsible for al-Qaeda’s payroll in Khartoum, before Osama bin Laden and his entourage moved back to Afghanistan in 1996 — was dropped by the government, and all that remained were claims that he worked at an al-Qaeda compound from 1996 to 1998, that he fought “as an al-Qaeda mortar man near Kabul from 1998 to 2001,” and that he sometimes worked as a driver and bodyguard for bin Laden.

At the arraignment, al-Qosi’s civilian lawyer, Lawrence Martin, declared that his client, “far from being a war criminal, was a cook,” adding, “He was not even a cook for bin Laden, but a cook for a compound where bin Laden was sometimes a visitor.” This position is also maintained by his military defense lawyers, including Maj. Todd Pierce, who visited Sudan over the summer to meet al-Qosi’s family, and it seems, therefore, to cast al-Qosi in a similar role to that of Salim Hamdan, a Yemeni who was one of bin Laden’s drivers in Afghanistan. Hamdan received a meager sentence after his trial by Military Commission in August 2008, when the military jury threw out the conspiracy charge against him, accepting that he knew nothing about the workings of al-Qaeda.

Ahmed al-Darbi, a Saudi who was seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, but in September, at one of the last pre-trial Military Commission hearings before Friday’s announcement, his civilian lawyer, Ramzi Kassem, urged that all of the 119 statements that al-Darbi made to interrogators should be ruled out, because they were obtained through the use of torture and abuse, including beatings, threats of rape, sensory deprivation, sleep deprivation and sexual humiliation, both at Bagram, where al-Darbi was held for eight months, and at Guantánamo (a full statement by al-Darbi is available here). At the time, the judge in his case, Army Col. James Pohl, reserved judgement on Kassem’s request, but it is clear that these unresolved issues will surface at al-Darbi’s trial, and it is difficult to see how they can easily be brushed aside.

The last man to be put forward to face a trial by Military Commission is Noor Uthman Muhammed, also from Sudan. On May 23, 2008, Muhammed was charged with conspiracy and providing material support for terrorism, based on allegations that he served as the deputy emir of the Khaldan training camp in Afghanistan from 1996 to 2000, when the camp was closed, that he served as an instructor at the camp, and that he delivered a fax machine to Osama bin Laden at a training camp in 1999.

Noticeably, in his tribunal at Guantánamo in 2004, Muhammed did not deny that he was sometimes involved in the administration of the camp, but he insisted that Khaldan was “a place to get training” that had nothing to do with either al-Qaeda or the Taliban. “People come over to that camp, train for about a month to a month and a half, then they go back to their hometown,” he said, adding that what the people did with the training they received was their own business.

Behind the façade

This may appear to have been an evasive explanation on Muhammed’s part, but in fact the whole story of Khaldan is dangerously complicated for the government, not merely because these claims have been aired before, and because it appears that the camp was closed in 2000 because its emir, Ibn al-Shaykh al-Libi, refused to cooperate with bin Laden, but also because both al-Libi and Khaldan’s gatekeeper, Abu Zubaydah, are people that the government want to keep quiet about.

Al-Libi, perhaps the CIA’s most notorious “ghost prisoner,” was rendered to Egypt, where, under torture, he produced a false confession about connections between al-Qaeda and Saddam Hussein that was used to justify the invasion of Iraq in March 2003. Returned to Libya in 2006, after spending over four years in a series of proxy prisons or prisons run by the CIA, he died in mysterious circumstances in May this year. Zubaydah, who is still in Guantánamo, but has not been put forward for a trial, was the first prisoner to be subjected to the torture techniques — including waterboarding — that were developed for use on the “high-value detainees,” and the problem for the government is not that officials have to build a case against him while avoiding all mention of the use of torture, but that his role was massively overstated, and he appears to be too psychologically damaged to be put on trial.

It is, therefore, difficult to see how Noor Uthman Muhammed’s trial by Military Commission can proceed without focusing on the stories of Ibn al-Shaykh al-Libi and Abu Zubaydah, but even if it does prove possible, the very mention of these men points to some dark truths that lie behind Friday’s announcement: that other supposedly “high-value detainees,” in addition to Abu Zubaydah, have not been put forward for trial, that the question of what to do with Zubaydah, a Palestinian, appears to present an insoluble problem, and that the murky world of proxy prisons and CIA prisons, and the torture regime that involved at least 150 prisoners (and maybe many more) is barely hidden behind Eric Holder’s decision to announce the trials of the ten men mentioned above. Even on this limited basis, the pursuit of justice is contaminated, and the question of accountability — deliberately ducked by the Obama administration — seems unlikely to go away.

Perhaps, as some commentators have suggested, the Bush administration will be under the spotlight as much as Khalid Sheikh Mohammed in the forthcoming trials, and it seems probable, therefore, that questions about the Bush administration’s responsibility for torture and abuse will also leak out in the trials by Military Commission, and will remain, like a guilty secret waiting to be revealed, in the cases of many of the other men at Guantánamo whose fates have yet to be decided.

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). 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, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.

As published exclusively on Truthout.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009).