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 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.

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).

In the end, the whole event was a disappointment, as Col. Henley agreed to a request from the government to freeze the trial proceedings for another 60 days (on top of the two 120-day freezes to date), to allow time for the administration to work out whether it can persuade the House of Representatives to approve proposed changes to the much-criticized trial system, or whether to proceed with federal court trials instead (and I explained why the latter is the only viable option in an article entitled, “9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please?”).

As a result, none of the defendants showed up in court on Monday, and the authorities were obliged to temper their disappointment by releasing a statement from the men the following day, which was clearly intended to provide another piece of evidence for the prosecution in the absence of any actual proceedings.

A statement by Khalid Sheikh Mohammed and his co-defendants

In a letter submitted to the judge acknowledging that they had no objections to the government’s proposed 60-day delay, Mohammed and two of his co-defendants, Walid Bin Attash, and Ali Abdul Aziz Ali, sent greetings to Osama bin Laden, Ayman al-Zawahiri and Mullah Omar, and took the opportunity to refer triumphantly to the 9/11 attacks. “We send our greeting to them on the occasion of the anniversary of eight years past on the most noble victory known to history over the forces of oppression and tyranny in the Washington and Manhattan attack,” they wrote.

As the Associated Press described it, they also quoted from the Koran to explain their continuing desire to represent themselves, but to offer no defense to the charges against them. ”I put my trust in Allah,” they wrote, “So devise your plot … Then pass your sentence on me and give me no respite.” The men also — as is Mohammed’s habit — took the opportunity to refer to the torture to which they were subjected in secret CIA custody, before their transfer to Guantánamo in September 2006, and also criticized President Obama. “We spent three years moving around the black sites in the ‘dark ages’ of Bush, then we were transferred to the island of oppression, torture and terror, Guantánamo,” they wrote, adding, “Then, the lying Barack, the new American president was elected, and we entered the black ages of Barack.”

Afterwards, few reporters and observers stuck around for the rest of the week’s events, even though pre-trial hearings were also scheduled for two other Military Commission cases: of Ahmed al-Darbi, a Saudi, seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, who is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, and Mohammed Kamin, an Afghan accused of training at “an al-Qaeda camp” and taking part in the insurgency against US forces. Two who did were Carol Rosenberg of the Miami Herald and Jane Sutton of Reuters, and I’m grateful to them for staying and capturing some disturbing allegations about the Commissions that might otherwise have gone unnoticed.

Ahmed al-Darbi’s torture allegations

In al-Darbi’s pre-trial hearing last Wednesday, the judge, Army Col. James Pohl, also decided to abide by the President’s request for another stay in the Commission proceedings, but not until al-Darbi’s lawyer, Ramzi Kassem, had raised some uncomfortable questions about his client’s treatment in US custody. According to the Commissions’ rules, evidence derived through the use of torture is banned, but individual judges may use their discretion to accept evidence obtained through coercion. The demarcation line is clearly a gray area, as was demonstrated on Wednesday, when Col. Pohl refused to abandon al-Darbi’s proposed trial, setting a date of January 11, 2010 (the eighth anniversary of the opening of Guantánamo) for a further hearing to decide which of the 119 statements made by al-Darbi to interrogators would be accepted as evidence.

This was in spite of protestations by Kassim that all the statements were tainted by the use of torture, because, as Carol Rosenberg described it, they were obtained “through beatings, threats of rape, sleep and sensory deprivation, and sexual humiliation,” at the US prison at Bagram airbase in Afghanistan (where al-Darbi was held for eight months) and also at Guantánamo.

Given the gravity of these allegations (explained in greater detail in a statement by al-Darbi that I’ve reproduced here, and which is well worth reading in its entirety), it was unsurprising that, following Col. Pohl’s ruling, Ramzi Kassem explained to reporters, “Either the Obama administration is duplicitously saying one thing to the public and the media and doing another here or, you know, Guantánamo and the military commissions are like a headless chicken that just keeps on moving after it’s been decapitated.”

Kassem also read out a statement prepared by al-Darbi, explaining that his client had “planned to read his statement in court but felt there wasn’t an opportunity during the brief hearing.” In the statement, al-Darbi, who, as the Associated Press described it, had held up a photo of Barack Obama “as a sign of hope” at a pre-trial hearing last December, and had stated that he hoped Obama would “earn back the legitimacy the United States has lost in the eyes of the world,” revised his opinion.

Although the statement was addressed to “his excellency, the American President Barack Obama, whose photo I held up in this place as though I had voted for him,” al-Darbi criticized Obama for “issuing certain orders and decisions” regarding the Military Commissions, telling the President that “he has gone astray.” He also criticized the government for holding a hearing during the post-Ramadan holiday of Eid, and also referred to Obama’s speech in Cairo in June, which was intended to build bridges with the countries of the Middle East. “I can tell you that the ugliness of this place and its continuing existence … have all covered up the beautiful smile that the American president directed at you,” al-Darbi wrote, directing his comments at Muslims who had watched the President’s speech in Egypt.

The futility of prosecuting Mohammed Kamin

If the case of Ahmed al-Darbi raises uncomfortable questions about the distinctions between coercion and torture, the case of Mohammed Kamin is simply inexplicable. As I explained in an article last March, when he was first charged, Kamin seems to be “an unworthy candidate for any kind of war crimes trial at all.” I continued:

In his charge sheet (PDF), he is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all. As it is, I’m prepared to state that his case seems to me to demonstrate how hopelessly blurred the distinctions between military resistance (aka insurgency) and terrorism have become, so that anyone caught fighting US occupation is not engaged in a war (with its own well-established laws) but is automatically part of a global terrorist movement.

At the time, the Bush administration was unconcerned that providing material support for terrorism was not a recognized war crime, but whereas Ahmed al-Darbi is charged with both conspiracy and material support for terrorism, Mohammed Kamin faces nothing but a material support charge, and the Obama administration, to its credit, has already accepted, in its plans to review the Military Commissions Act in Congress, that the charge of material support for terrorism should be dropped. Assistant Attorney General David Kris conceded, in Congressional testimony in July, that there is a “significant risk” that, on appeal, judges would not regard it as a legitimate war crime, and the Justice Department’s position is also held by the Pentagon, where General Counsel Jeh Johnson also accepted in July that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

As a result, although the Commissions definitely seem to be proceeding like a “headless chicken” in Kamin’s case, his lawyers asked the judge to schedule a meeting with Jeh Johnson, and are hopeful that they will be able to persuade him to accept that it would be absurd to proceed with his proposed trial. In a detailed submission (PDF), they noted that, as recently as September 10, Johnson told a national security panel of American Bar Association lawyers that, although material support for terrorism was included in the Senate’s bill for amending the Commission, “We don’t believe that material support is a law of war offense. That’s still our position.”

The situation is further complicated because Susan Crawford, the Commissions’ Convening Authority (and a close friend of both Dick Cheney and David Addington), whose conflicted role overseeing the Commissions I have written about at length (here, here and most recently here), responded in July to a request from Kamin’s lawyers to withdraw or dismiss the charges by noting that Johnson had only stated that “appellate courts may find that material support for terrorism is not a traditional violation of the law of war” (emphasis added), and that, at present, it remained a viable charge under the MCA.

Despite Crawford’s insistence that, in the trial of Salim Hamdan, the judge ruled that “the conduct embraced within the specification [of material support] included conduct which the United States has considered a violation of the law of war since at least the Civil War,” I’m reasonably optimistic that neither Crawford nor the Congress will prevail in their arguments. Even so, it remains disgraceful that Mohammed Kamin is still waiting for justice, nearly six and a half years since his capture, and, more worryingly, that Ahmed al-Darbi, who, unlike Kamin, is clearly regarded as a significant prisoner, is still no closer than he was six and a half years ago to establishing whether he will ever be allowed to address, in a fair and open hearing, his claims that he was tortured in Bagram and Guantánamo.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). 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, and if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record.

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).

The Military Commissions, established by former Vice President Dick Cheney in November 2001 and revived by Congress in 2006, after the Supreme Court ruled them illegal, were frozen for four months by President Obama on his first day in office, and then frozen again four months later, and the request for this third delay — apparently just for two months this time, until November 16 — cannot disguise the fact that Congress is struggling to establish new rules for the Commissions in an attempt to iron out problems with the much-criticized trial system, and that the administration is struggling with a decision about whether to proceed with the Commissions, or to put prisoners forward for trials in federal courts instead (as happened in June with a solitary “high-value detainee,” Ahmed Khalfan Ghailani, whose trial in New York is scheduled to begin in September 2010).

Last week, the government was spurred to action by lawyers for Ramzi bin al-Shibh, whose mental competence to stand trial has been disputed by his lawyers since pre-trial hearings began last year. In what Carol Rosenberg of the Miami Herald described as “a 71-page broadside against the war court created by the Bush administration,” bin al-Shibh’s lawyers described the court as “not a legitimate judicial proceeding but a political show trial” (PDF), prompting a 30-page response from the Justice Department, in which Assistant Attorney General David Kris argued that the lawyers’ claim of “constitutional defects in the Military Commissions Act are without merit” (PDF).

Despite the fact that Kris had been put forward to prevent the planned resumption of pre-trial hearings at Guantánamo this week, while government lawyers continue their deliberations regarding the Commissions’ future (and partly, I suspect, because the last two outings were so disastrous), he appeared, in summer, to deal a major blow to the continuing rationale for the Commissions. In Congressional testimony (PDF), he conceded that one of the mainstays of the charges in the Commissions — providing material support for terrorism — should be dropped because there was a “significant risk” that, on appeal, judges would not regard it as a legitimate war crime.

Critics were quick to remark that this appeared to rule out two of the Commissions’ only three verdicts — in the cases of David Hicks and Salim Hamdan, who were both convicted solely on the basis that they provided material support for terrorism — but while these arguments continue behind the scenes (and lawyers for the third man, Ali Hamzi al-Bahlul, appeal his conviction and life sentence last November, in a trial in which he refused to mount a defense), Kris told the court only that the government was seeking a 60-day delay in the 9/11 cases because “a decision might be made to prosecute [bin al-Shibh] in federal court.”

For the purposes of justice, it must be said, these developments are good news. Scarcely in its history has the United States entertained such a shabby and shamelessly politicized travesty of justice as the Military Commissions, which stumbled from one embarrassment to another in their long and almost entirely unproductive history during the Bush years.

Moreover, although President Obama has managed to secure some support from within his administration — and within the Senate — for his ghoulish proposal to bring the Commissions back from the dead for a second time, the House of Representatives has, to date, refused to endorse the changes to the Military Commissions Act that have already been approved by the Senate, and, as Carol Rosenberg explained, “has given no indication when or if it will take up the matter.”

This is another good sign, because, although the proposed changes, which include a ban on the use of evidence obtained through coercion and restrictions on the use of hearsay as evidence, convinced the politicians in Congress (largely the same people who passed the hideously flawed Military Commissions Act back in 2006, which introduced “material support for terrorism” as a war crime in the first place), experts with a far greater understanding of the inherent problems of the system queued up over the summer to tell various Senate and House Committees why the proposals were a bad idea, and also why they were doomed to fail.

I wrote at the time about the testimony of Adm. John Hutson, about the testimony of Lt. Col. Darrel Vandeveld (the prosecutor who resigned after seeing first-hand how the Commissions were incapable of delivering justice), and about the testimony of Maj. David Frakt, a military defense attorney in the Commissions, who reminded a House Committee of the trial system’s fatally flawed origins, and who spelled out, with unassailable clarity, why federal courts are more adequately equipped than the military to handle the limited number of genuine terrorism cases at Guantánamo.

These were not the only critics. Others included Denny LeBoeuf, Director of the ACLU’s John Adams Project, who provided a detailed analysis of the Commissions’ failings based on her observations of the pre-trial hearings in the 9/11 trial, and on a forensic dissection of the weaknesses in the Senate Committee’s legislation (PDF), and in a recent article on the release from Guantánamo of Mohammed Jawad, I included excerpts from the testimony of Col. Peter Masciola, the Commissions’ Chief Defense Counsel. Col. Masciola explained how the Commissions’ Convening Authority — a post still held by Susan Crawford, a close friend of both Dick Cheney and his right-hand man, David Addington — is an “untenable and inherently conflicted role.” As he described it, drawing from bitter experience, without a radical review of the Convening Authority’s role, which is not addressed in the Senate bill aimed at reviving the Commissions, it will remain a job for a political appointee with prosecutorial functions, who is also responsible for providing — or, as Col. Masciola demonstrated, mostly refusing to provide — the defense teams with any of the resources needed to do their job.

Recently, I also came across another damning document confirming the unsuitability of Military Commissions for cases related to terrorism. Just three weeks ago, the National Institute of Military Justice (a non-profit organization established in 1991 to advance the fair administration of military justice and foster improved public understanding of the military justice system) produced a report, “NIMJ Reports From Guantánamo” (PDF), in which a number of observers reported on their visits to Commission hearings between October 2008 and January 2009.

Two accounts were particularly noteworthy. In the first, Jonathan E. Tracy, NIMJ’s Assistant Director (and a former member of the Army Judge Advocate General’s Corps) noted that, “while the lawyers and judges all operated professionally and seemed eminently qualified, there is no escaping the fact that the commissions are ad hoc proceedings with little or no legal precedent on either substantive or procedural issues,” and that “the system contains several inherent flaws that make for lopsided justice, no matter how qualified the defense counsel.”

Tracy observed proceedings in the cases of Omar Khadr (the Canadian who was just 15 years old when he was seized) and Mohammed Kamin (at best, a minor Afghan insurgent) and he was appalled, in particular, by what he perceived as the persistent refusal of prosecutors to provide discovery to the defense “in a timely manner “ — if at all. After also revealing his dismay that questions about Kamin’s mental competency were subjected to an “inadequate investigation,” he concluded, “It was very apparent that the defense counsel in both cases face a daunting challenge getting access to evidence to which they are entitled. The tactics used by the government and their cavalier dismissal of charges of unfairness damage the credibility of the commissions.”

In the second account, Diane Marie Amann, a law professor and former Assistant Federal Public Defender, reported on her observation of pre-trial hearings in the cases of the 9/11 co-defendants in December 2008, and was shocked to note that, when it came to questions of self-representation, “not even the participants who are members of the bar were fully cognizant of the rules that governed the proceedings.” She also noted that, because the case involved difficulties raised by the use of “waterboarding or other harsh methods of interrogation,” the trial would “benefit from the certainty of precedent. Yet precedent is something utterly lacking in the military commissions.”

After also noting complaints from the prisoners regarding the poor quality of the interpreters (which she compared unfavorably to her recollections of interpreters in federal court), Amann concluded that nothing she had seen eased “the core concern” that had troubled her for several years: “specifically, that the post-9/11 military commissions are unlikely to afford fair trials to the defendants who appear before them.”

So bring on federal court trials, please — in which “material support for terrorism” is a genuine crime, as opposed to an invented war crime — and let’s give the Commissions the burial they deserve, in a grave marked, “Cheney’s Wretched Dreams.” As Reuters explained on Monday, Navy Capt. John Murphy, the Commissions’ chief prosecutor, told journalists at Guantánamo on Sunday that “Federal prosecutors in New York, Washington and Virginia are vying to try the accused plotters of the September 11 attacks if their cases are moved into US civilian courts.”

Adding that the courts in question are Washington, the Southern and Eastern Districts of New York, and the Eastern District of Virginia, Capt. Murphy also explained, “They are working with us in a joint review of these cases and it is our collaboration that will ultimately make its way in written reports that go up to the Attorney General and the Secretary of Defense to make a decision.” He also said that he “still hopes” to try 65 of the remaining prisoners in trials by Military Commission, but conceded that some of the 65 had “already been indicted in US federal courts,” although he “would not say how many.”

After four years of research into the stories of the Guantánamo prisoners, I have profound doubts that viable cases can be established against as many as 65 prisoners — unless the administration is really determined to pursue Taliban foot soldiers in the courts, rather than al-Qaeda terrorists — but it was refreshing to hear that Capt. Murphy was talking so openly about the possibility of federal court trials.

As Maj. David Frakt explained in the one-man demolition job that he conducted on the Commissions during his testimony to a House Committee in July, “Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates [PDF], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases.”

More crucially, as Maj. Frakt also explained:

The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

Note: For more NIMJ documents relating to the Commissions, visit the website here.

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. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

As published on the Huffington Post and Antiwar.com. Cross-posted on The Public Record.

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).

Reviving the Commissions, ill-advisedly

In May, in a major speech on national security, Barack Obama signaled that he was planning to revive the Commissions, arguing that, with some amendments, they would be “fair, legitimate, and effective,” and promising to “work with Congress and legal authorities across the political spectrum on legislation” that would fulfill these aims.

Pleasant though it was to hear a President talk of involving Congress, without having to have his arm twisted to do so, Obama’s willingness to revive the Commissions flew in the face of widespread opposition from civilian lawyers and a wide range of legal experts, and, most significantly, from seven former prosecutors who resigned in disgust at what they saw as the politicization of the system or its irremediable faults (including Col. Morris Davis, the former chief prosecutor, and Lt. Col. Darrel Vandeveld, who resigned last September), and all of the government-appointed defense attorneys, who have been prepared to risk their careers to oppose what they all realized was an unjust system.

Critics — myself included — were not placated by Obama’s proposed tweaking of the Commissions’ rules, and insisted that the only way forward was to drop the Commissions and proceed with federal court trials. Bizarrely, on the same day as Obama’s speech, the administration announced that Ahmed Khalfan Ghailani, a suspect in the 1998 African embassy bombings, would face a trial in New York, and, moreover, in an accompanying press release, the Justice Department trumpeted its “long history of … successfully prosecuting terror suspects through the criminal justice system” (and attached a list of successful prosecutions over the last 16 years), which rather seemed to prove the point that the Commissions — which have achieved only three dubious results (David Hicks, Salim Hamdan and Ali Hamza al-Bahlul) — should not be revived.

Nevertheless, in the last few weeks the Senate Armed Services Committee — and its chairman, Sen. Carl Levin, who really should know better — bowed to the President’s wishes and tweaked the wording of the Military Commissions Act of 2006 (which revived the Commissions after the Supreme Court ruled that their first incarnation was illegal), even though, as I reported last week when Lt. Col. Vandeveld delivered testimony to the Committee which should have halted the politicians in their tracks, it still allows the use of information masquerading as evidence that was obtained through coercion, and still allows for hearsay information to be appraised as evidence by judges who are not qualified to make such decisions.

The legislation has yet to be approved by the Senate, but last week the Commissions reconvened anyway, even though the as-yet-undecided debate about their future added another layer of confusion to events that, as has been typical throughout the long and ignominious history of the Commissions, involved technical difficulties, uncooperative prisoners, and bouts of wrangling over the rules.

An outlandish claim kicks off the proceedings

One of the week’s few dramatic highlights came at the very beginning. Speaking to reporters on Tuesday, before the pre-trial hearings began, Navy Capt. John Murphy, the Commissions’ new chief prosecutor, announced that prosecutors were ready to proceed with cases against 66 of the remaining 228 prisoners (the 229th, Ali Hamza al-Bahlul, is already locked up for life — in a cell on his own somewhere in Guantánamo — after his disturbingly one-sided trial in November).

As David Danzig, Deputy Program Director at Human Rights First, explained, Murphy said, “We have 66 viable cases,” and added that he was “personally comfortable” that “the government could mount a case that would not depend on evidence gathered through the use of coercion.” Danzig also noted that Murphy “refrained from commenting on whether the government might seek to bring some of those cases to trial in federal civilian courts.”

Personally, I’m amazed that Murphy could claim that there are as many as “66 viable cases,” given that intelligence reports over the years have put the number of prisoners with any meaningful connection to terrorism as somewhere between two dozen and 40 of the prisoners (and also given that, of the 23 cases that were still active when Bush left office, two involved juveniles, and at least eight of the cases had nothing to do with “war crimes”), but what particularly exercised some of the reporters was that the prosecutor’s office seemed to be “making decisions about what evidence was appropriate and what evidence was not appropriate to use without any independent review.”

Vic Hansen, a former Army Judge Advocate General officer who was observing the proceedings for the National Institute of Military Justice, said, “They say repeatedly that they are not going to rely on evidence that was obtained using coercion. Well, it’s the prosecution who is making that call alone without any transparency.”

This was a very valid point, and as Danzig noted, although Murphy “said that the prosecution had developed ‘a standard’ to ensure that no evidence obtained improperly would be used in the trials … he declined to elaborate on that standard,” and did not refer to the fact that the Senate is still discussing whether to impose a voluntariness standard (at the instigation of the Obama administration), which, as Danzig stated, “would presumably exclude coerced evidence.” As Hansen added, “What it comes down to is more or less the government saying, ‘just trust us.’”

Challenges and calls for delay in the case of Ibrahim al-Qosi

On Wednesday, when the pre-trial hearings were supposed to begin, court staff complained they couldn’t hear Navy Cmdr. Dirk Padgett introduce himself as a prosecutor in the case of Ibrahim al-Qosi, one of three prisoners whose cases were being discussed that day, prompting a reply from Padgett that, to some, could serve as a motto for the whole of the Commissions. “Hopefully, this is going to get better,” he said.

In the event, things didn’t get better at all. In the case of al-Qosi, a 49-year old Sudanese prisoner who is accused of being a bodyguard and sometime driver for Osama bin Laden, prosecutors called for a delay “in the interests of justice” until September, which would, apparently, give the Obama administration time to complete its review of the cases. Marine Corps Capt. Seamus Quinn, one of al-Qosi’s prosecutors, stated, “The continuance is needed … to address and eliminate all possible challenges to this process,” according to Reuters.

The call for a delay infuriated al-Qosi’s defense lawyers, who have long maintained that their client was nothing more than a cook for bin Laden, and of no more significance than Salim Hamdan, one of bin Laden’s drivers, who is now a free man in Yemen, having served a five-month sentence that he was given after his trial last August. As Reuters described it, al-Qosi’s lawyers asked the military judge “to either dismiss the charges or move forward.”

“You cannot sit somebody in indefinite detention,” Navy Lt. Cmdr. Travis Owens said. “It violates every principle we have as Americans.” Invoking what Carol Rosenberg of the Miami Herald described as a “justice-delayed, justice-denied” argument, on the grounds that al-Qosi “was among the first men taken to the prison camps when they opened in January 2002,” Owens added, “He was one of the guys who was kept in the dog cages. Talk about oppressive confinement.”

Challenges and calls for delay in the case of Mohammed Kamin

While the judge, Air Force Lt. Col. Nancy Paul, refused to make an immediate ruling on the prosecutors’ request, even more chaotic scenes took place in an adjacent courtroom, where a second pre-trial hearing was taking place in the case of Mohammed Kamin, an Afghan seized in 2003.

Kamin’s is one of the more ludicrous cases put forward for a trial by Military Commission — or, for that matter, any kind of trial — as I explained last March, when he was arraigned:

[Kamin] is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all.

On Wednesday, Kamin boycotted the proceedings, telling a military official who offered him the opportunity to take a shower before the hearing, “I’ll take a shower when you guys are ready to send me home.” In his absence, prosecutors also called for a delay, although no one actually turned up to make the request. Instead, a heavily pregnant prosecutor, Navy Lt. Rachel Trest, called in by closed-circuit feed from Washington, although, as Carol Rosenberg noted, “her argument was inaudible at the media center designed years ago to simultaneously broadcast both trials to journalists.”

There was, however, an outburst of drama when, in spite of a court tip sheet predicting that Navy Lt. Rich Federico, one of Kamin’s defense lawyers, would “ask for guidance on how much trial preparation could take place during the White House-mandated interregnum,” Federico instead urged dismissal of the entire case, referring to comments made last week by Justice Department national security lawyer David Kris, who told the Senate Armed Services Committee (PDF), “Our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offence, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

As this is the only charge Kamin faces, Federico told the judge, “They cannot ethically proceed on this charge in this forum. It’s appalling. It’s just a waste of everyone’s time.” The Wall Street Journal added that he also said that the government’s continued pursuit of the case was “unethical, immoral and unjust,” called the proceedings “a charade, a complete fraud,” and stated that the Commissions remained “a broken system.”

As with al-Qosi’s case, Kamin’s judge, Air Force Col. Thomas Cumbie, refused to make an immediate ruling on the prosecution’s call for a delay — or Federico’s unexpected intervention — although, in response to a challenge from Federico he conceded that “the rules of the court were still evolving,” as Carol Rosenberg put it, and stated, “I’m not saying in any way you ambushed me. Things change.”

Nevertheless, the questions regarding the validity of the “material support” charge are unlikely to go away, and will need resolving before any further hearings take place, Ironically, the charge is a valid crime in a federal court, but has been contested in the Commissions since it was first grafted onto the legislation in 2006. As Salim Hamdan’s civilian lawyer, Harry Schneider, explained on Wednesday, “We’ve always been of the view that [material support] was not a war crime and the conviction should not stand.” He added, as Carol Rosenberg put it, that the debate in the Commissions “appeared to enhance a Hamdan clemency bid already on file with the Pentagon,” and stated that, if the administration does drop material support as a crime in the Commissions, “Salim would be exonerated in the sense that he would never have been convicted of anything.”

No lawyers for Omar Khadr

On Wednesday afternoon, Omar Khadr, the Canadian who was just 15 when he was seized in 2002, returned to the court to resume the discussions about his lawyers that he was having on June 1, when the Commissions first reconvened. On that occasion, as Michelle Shephard explained in the Toronto Star, Army Col. Patrick Parrish “repeatedly lambasted Khadr’s legal team” for their in-fighting, which had led Khadr to conclude that he couldn’t trust any of them, but commended Khadr himself for being “well-spoken” and “professional.”

Six weeks ago, Parrish refused to allow Khadr to be unrepresented, and the Canadian reluctantly decided to stick with Lt. Cmdr. William Kuebler, who, it must be noted, has campaigned assiduously on Khadr’s behalf, but on Wednesday, Khadr’s suspicions were back to the fore. “I don’t trust the office of military defense,” he said, prompting Parrish to make the unprecedented decision to appoint two civilian lawyers instead.

Mostly a no-show for the 9/11 pre-trial hearing

The big news of the week was supposed to be the pre-trial hearing of the five men accused of involvement in the 9/11 attacks, but in the end this too was a damp squib. No one turned up at all in the morning, after the men refused to leave their cells, and in the afternoon, Khalid Sheikh Mohammed, the unarguable showman of the group, refused to attend, as did Ramzi bin al-Shibh, even though the hearing was convened to deal with ongoing issues regarding his mental competency, and that of another of the five, Mustafa al-Hawsawi. Al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash eventually turned up in the courtroom, but there was little activity.

According to Reuters, “al-Hawsawi soon demanded to leave after complaining he would not be allowed to speak,” and “bin Attash, given five minutes to address the court, complained that the presiding judge, Army Colonel Steven Henley, had not responded to letters the five men had written to him ‘a long time ago.’” In the only flicker of the dissent normally associated with KSM’s presence, he explained, “If you don’t have enough patience to take this case, just give it to a different judge. We view the judge and prosecution as one person. There’s no difference.” Later, bin Attash showed his disdain for the proceedings by throwing a paper plane — fashioned, presumably, from his court papers — at one of his co-accused.

The rest of the session focused on attempts by bin al-Shibh’s lawyers to “allow a defense consultant to examine CT scans of her client’s brain and perform further tests, including possibly an MRI, to ‘determine whether any lesions in his brain affect his cognitive functioning.’” Navy Cmdr. Suzanne Lachelier explained that bin al-Shibh has been diagnosed with “delusional disorder,” but when she tried to explain that he had been subjected to sleep deprivation, a court censor cut off the feed to the media center.

In an attempt to rebuff these complaints, one of the prosecutors, Navy Lt. Clayton Trivett, said that bin al-Shibh’s complaints about sleep deprivation may have been produced by his pre-existing condition. Trivett explained that bin al-Shibh “has accused guards of pumping foul smells and loud noises into his cell and ‘vibrating his bed’ to keep him awake,” even though “The government’s position is that it’s not happening and it’s never been happening,” although another interpretation could be that the initial collapse of bin al-Shibh’s mental health was caused by whatever happened to him during the four years that he was held in a secret CIA prison before his arrival at Guantánamo in September 2006.

With no visible progress — and with the little that did take place overshadowed by the dispute over the charge of material support for terrorism, which would have a knock-on effect on several other cases — this was another dismal outing for the Commissions, and, surely, another warning for the Obama administration that any kind of revival of the wretched trial system will remain fraught with insoluble problems.

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 also see my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, Antiwar.com, CounterPunch and ZNet.

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).

The administration moved swiftly to refute the story, with the Justice Department maintaining that it would not comment on specific plans until after July 21, when the administration’s inter-departmental Guantánamo Task Force is scheduled to complete its review of all the Guantánamo cases, and an unnamed official telling AFP that “no such draft order existed, though internal deliberations were taking place on how to deal with those inmates who could not be released or tried in civilian courts.” The Post accordingly revised its story online, stating that administration officials were only “crafting language for an executive order.”

However, it is certainly true that the administration is struggling to deal effectively with the closure of Guantánamo, having recently suffered a defeat in Congress, when politicians of both parties supported a passage in a $106 bn. War Funding Bill, which “prohibits the use of any funds … to release or to transfer … any individual detained at Guantánamo Bay into the continental United States,” and also authorized legislation that “requires the President to report periodically to Congress on the status of Guantánamo Bay detainees and plans for their transfer.”

As a result, an executive order would indeed enable President Obama to “reassert presidential authority” over issues relating to the closure of Guantánamo, although whether indefinite detention is part of the plan is still unclear. Since last month, when the President first made public the options being looked at regarding the closure of Guantánamo (during an important national security speech), it has been clear that all options were being kept on the table.

Is the administration testing the waters?

It also appears that the administration is willing to test out responses to various proposals through strategic media leaks, as happened three weeks ago, when the New York Times published an article about a proposal, in draft legislation to be submitted to Congress, which was apparently designed to pave the way for the prisoners accused of involvement with the 9/11 attacks to plead guilty in a trial by Military Commission (the “terror trials” introduced by former Vice President Dick Cheney in November 2001), and to be executed — thereby fulfilling their stated aim of becoming martyrs — without the government having to go through a full trial process. This latest story may, therefore, represent a similar testing of the waters.

Last month, President Obama spelled out the options being discussed: release or transfer, trials in federal courts, trials in a revamped version of the Military Commissions, and indefinite detention. At the time, civil liberties groups, lawyers and numerous commentators — myself included — responded with undisguised hostility towards the last two options.

As I explained in an article following Obama’s speech and the simultaneous announcement that one of Guantánamo’s “high-value detainees,” Ahmed Khalfan Ghailani, an alleged associate of the African embassy bombers, would be tried in a federal court in New York, “setting up a two-tier system — of federal courts on the one hand, and Military Commissions on the other — appears to be nothing but a recipe for disaster.” I was even more worried about the prospect of indefinite detention, writing that I “would urge anyone who believes in the fundamental right of human beings, in countries that purport to wear the cloak of civilization with pride, to live as free men and women unless arrested, charged, tried and convicted of a crime, to resist the notion that a form of ‘preventive detention’ is anything other than the most fundamental betrayal of our core values.”

As a result of opposition to Military Commissions and preventive detention, it was somewhat surprising that the Washington Post / ProPublica article also claimed that unspecified civil liberties groups had “encouraged the administration, that if a prolonged detention system were to be sought, to do it through executive order,” and added that civil liberties groups “generally oppose long-term detention, arguing that detainees should either be prosecuted or released.” To the best of my knowledge, civil libertarians always oppose long-term detention without charge or trial, and no group has hinted that it would support plans for preventive detention, whether through an executive order or through legislation in Congress.

However, while this passage seems to me to provide another indication that the entire article was viewed by the “three senior government officials” behind it as another attempt to test responses to ongoing discussions within the administration, the article was more useful in its discussion of the government’s current analysis of the 229 prisoners who are still held.

The figures don’t add up

After noting that, during congressional testimony last week, Attorney General Eric Holder confirmed that 50 prisoners have been approved for release, and, with some hesitation, responded affirmatively to a suggestion that no more than 25 percent of those still held (in other words, around 60 prisoners) would be put forward for trials, the authors added that one of the officials who spoke to them noted that the administration was “still hoping that as many as 70 Yemeni citizens will be moved, in stages, into a rehabilitation program in Saudi Arabia.”

Excluding the one prisoner already sentenced (Ali Hamza al-Bahlul, who received a life sentence in a one-sided trial by Military Commission on the eve of the Presidential election), that leaves 48 prisoners facing indefinite detention, rather less than the figure quoted in the article by “several” Justice Department officials, who apparently “said they have found themselves agreeing with conclusions reached years earlier by the Bush administration: As many as 90 detainees cannot be charged or released.”

Reading between the lines, therefore (and excluding, for a moment, the laughable suggestion that the Bush administration had any basis for reaching objective “conclusions” about the Guantánamo prisoners it had rounded up so randomly), what this means is that 48 prisoners face indefinite detention, plus 42 Yemenis if plans to put them through the Saudi rehabilitation program do not work out — and the lack of logic involved in that suggestion is, I hope, abundantly clear.

I also have my doubts about the figure of 60 or so prisoners to be put forward for trials (as intelligence estimates over the years — mentioned most recently by Lawrence Wilkerson, Colin Powell’s former Chief of Staff — have indicated that no more than two to three dozen of the prisoners had any meaningful connection to terrorism), but I was at least reassured that two Justice Department officials involved in a review of possible prosecutions told the Washington Post / ProPublica that the administration “is strongly considering criminal charges in federal court for Khalid Sheikh Mohammed and three other detainees accused of involvement in the Sept. 11, 2001, attacks.”

This contradicts the earlier leak, mentioned above, indicating that they would face a fast-track trial by Military Commission, and, I hope, for two particular reasons, that it is true: firstly, because any trial by Military Commission — however tweaked by Obama — would lack legitimacy in the eyes of many at home and abroad, after the Commissions’ manifest failures throughout the Bush years; and secondly, because, if any genuine evidence exists whatsoever to prove that Khalid Sheikh Mohammed and his co-accused were actually involving in planning and facilitating the 9/11 attacks, then no jury in the US will fail to convict them, despite their government-sanctioned torture at the hands of the CIA.

The strange case of Walid bin Attash

Even so, all is not well, as the Washington Post / ProPublica article also indicated. According to “one senior official,” one of the men who could be subjected to preventive detention is Walid bin Attash, one of the five men accused of involvement in the 9/11 attacks. Bin Attash (also known as Khallad, or Tawfiq bin Attash), who is also accused of involvement in the African embassy bombings in 1998, and the bombing of the USS Cole in 2000, was seized in April 2003 and was held in secret CIA prisons for nearly three and a half years before his transfer to Guantánamo in September 2006.

In the leaked report on the “high-value detainees” that was compiled by the International Committee of the Red Cross, based on interviews with the men after their transfer to Guantánamo (and the subject of a major New York Review of Books article by Mark Danner in April), bin Attash, who lost a leg in Afghanistan many years before his capture, described some of the ways in which he was treated in a secret CIA prison in Afghanistan:

On arrival at the place of detention in Afghanistan I was stripped naked. I remained naked for the next two weeks. I was put in a cell measuring approximately [3 1/2 by 6 1/2 feet]. I was kept in a standing position, feet flat on the floor, but with my arms above my head and fixed with handcuffs and a chain to a metal bar running across the width of the cell. The cell was dark with no light, artificial or natural …

After some time being held in this position my stump began to hurt so I removed my artificial leg to relieve the pain. Of course my good leg then began to ache and soon started to give way so that I was left hanging with all my weight on my wrists. I shouted for help but at first nobody came. Finally, after about one hour a guard came and my artificial leg was given back to me and I was again placed in the standing position with my hands above my head. After that the interrogators sometimes deliberately removed my artificial leg in order to add extra stress to the position …

Noticeably, however, when bin Attash was brought before a tribunal at Guantánamo in 2007, he produced what appeared to be an unprompted confession, when he said that he was the link between Osama bin Laden and the Nairobi cell during the African embassy bombings in 1998, and also admitted that he had played a major part in the bombing of the USS Cole in 2000, explaining that he “put together the plan for the operation for a year and a half,” and that he bought the explosives and the boat, and recruited the bombers.

Despite this, it was noticeable that the senior official did not even mention bin Attash’s own confession, and focused instead on what was described as the Justice Department’s conclusion that “none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify [and] Administration officials believe that testimony from the only witness in US custody, Abdul Rahim al-Nashiri, may be inadmissible because he was subjected to harsh interrogation while in CIA custody.”

It is difficult to know quite what conclusion to draw from this. Certainly, there is a problem with the case against al-Nashiri — one of three prisoners subjected to waterboarding, according to Gen. Michael Hayden, the former director of the CIA — although the problem is less to do with the manner in which he was treated in CIA custody, and more to do with the fact that, in his tribunal in Guantánamo, he denied every allegation against him.

He stated that he made up stories tying him to the bombing of the USS Cole and confessed to involvement in several other plots — including 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.”

Considering that, in the 9/11 Commission Report (PDF), bin Attash was specifically mentioned in connection with investigations by the CIA, the FBI and Yemeni intelligence following the bombing of the USS Cole, and information provided during his interrogations in CIA custody was quoted from extensively, it strikes me as remarkable that no reliable evidence apparently exists that can be used to prosecute him in a US federal court. Is this because no evidence really exists, or is it because of reticence in providing information on the part of the intelligence agencies? If the former, then I fail to see how a case can be made for continuing to hold him; if the latter, then the administration should find a way to put him on trial.

As was explained in a press release that accompanied the transfer of Ahmed Khalfan Ghailani to the US mainland, the Justice Department has “a long history of … successfully prosecuting terror suspects through the criminal justice system,” and, to prove it, the DoJ attached a list of successful prosecutions over the last 16 years. Surely the case of Walid bin Attash should be no different.

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 see here for my definitive Guantánamo prisoner list, published in March 2009.

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

The five alleged co-conspirators in the 9/11 attacks. From the top: Khalid Sheikh Mohammed (KSM), Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash.

Such a statement can only set alarm bells ringing, of course, as it clearly refers to the five alleged co-conspirators in the 9/11 attacks — Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — and it indicates that, in order to avoid having to disclose distressing details of the torture to which these men were subjected, during their long years in secret CIA prisons, the Obama administration is wondering if allowing them to fulfill their stated aim of pleading guilty and becoming martyrs might be an effective way to dispose of what is probably the thorniest problem inherited from the government of George W. Bush.

It’s tempting to take this view, of course, because the Obama administration has already demonstrated its unwillingness to thoroughly repudiate its predecessor’s brutally innovative approach to detention and trials in terrorist cases; firstly by announcing its intention to revive the system of trials by Military Commission (the much-criticized “terror courts,” conceived by Dick Cheney and his legal counsel David Addington, which were mired in incompetence and corruption throughout their seven-year history), and secondly by proposing to push for legislation authorizing the use of “preventive detention” for 50 to 100 of the remaining 239 prisoners. As I explained in an article three weeks ago, “Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration’s “new paradigm” [in the “War on Terror”] justified “preventive detention” for life,” and “to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed.”

These are not the only proposals put forward by the administration to facilitate the closure of Guantánamo by January 2010, as Obama promised on taking office. In fact, one prisoner — Ahmed Khalfan Ghailani, allegedly involved in the African embassy bombings in 1998 — has already been put forward for trial in a federal court in New York, demonstrating that the administration is capable of trusting the federal courts to successfully prosecute cases related to terrorism, as they have done on over a hundred occasions in the last 15 years (PDF). As I also explained in my article three weeks ago, I regarded the decision to charge Ghailani in a federal court “as a clear indication that trials in the US court system are the only legitimate way forward, and that setting up a two-tier system — of federal courts on the one hand, and Military Commissions on the other — appears to be nothing but a recipe for disaster.”

However, the leaked proposal to allow guilty pleas that could lead to swift executions has been raised specifically in connection with the Military Commissions, and it should be noted that, although it appears to be designed primarily to circumvent all mention of torture while reaching a verdict that the government thinks is appropriate, it is not quite as cynical as this analysis suggests.

Essentially, the question of whether guilty pleas are acceptable in the Commissions was raised last year, during pre-trial hearings for the alleged 9/11 co-conspirators, when, as the Times described it, military prosecutors sought “to clarify what they view[ed] as an oversight in the 2006 law that created the commissions.” This oversight — based, it should be noted, on the Bush administration’s determination to fashion a legal system that was based neither on the federal court system nor on precedents in the military’s own judicial system — centered on the fact that the Military Commissions Act of 2006 “did not make clear if guilty pleas would be permitted in capital cases,” and the problem is that federal courts permit guilty pleas in capital cases, but the military’s own judicial system, on which the military commissions are modeled, do not. As the Times explained, “Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.”

The five alleged co-conspirators in the 9/11 attacks are shown this sketch by courtroom artist Janet Hamlin at their arraignment in Guantánamo on June 5, 2008. They are, from top to bottom, Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa al-Hawsawi.

In December, when Khalid Sheikh Mohammed and his co-defendants announced that they wanted to plead guilty, all parties discovered that the Military Commissions Act had failed to provide clear rules determining the appropriate response. Military prosecutors argued that the men should be allowed to make a guilty plea, because Congress had a “clear intent” to allow them to do so, while their defense teams countered by stating that the trial should follow US military law, and that therefore guilty pleas were not allowed.

In response to these conflicting opinions, the judge, Col. Stephen Henley, pointedly asked, “Can an accused plead guilty to a capital offense at a military commission?” and ordered both sides to provide written submissions, but, as the Times noted, he has not yet made a decision about how to proceed.

However, while this provides a context for the Obama administration’s deliberations, lawyers are unimpressed by the nuances, and have seized on the leaked proposal as an indication that the administration is only concerned with securing guilty verdicts via the least problematical route. Denny LeBoeuf, a lawyer for the ACLU who works on issues relating to Guantánamo and the death penalty, told the Times that “Requiring prosecutors to reveal what they know about detainees and how they know it would cast light both on the interrogation techniques used against the men and the acts of terrorism for which they are facing death,” and asked, “Don’t we have an interest as a society in a trial that examines the evidence and provides some reliable picture of what went on?” and
David Glazier, a law professor in Los Angeles, who has studied the commissions, explained, “This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed. But I think it’s going to lack international credibility.”

Both made valid points about openness and international credibility. As David Seth asked in a Daily Kos article on Saturday, “How does dispensing with a full, albeit difficult trial for prosecutors and avoiding inquiries about extensive torture benefit the detainees? How does it assure that their guilty pleas are knowing, intelligent and voluntary?” Moreover, as the website Moon of Alabama explained, “military law forbids death penalties based solely on guilty pleas for two good reasons: the guilty plea could be coerced, [and it] could be a way for people who are not guilty to commit a form of suicide” (as happened in the case of the Beatrice Six, four of whom “falsely confessed in a rape and murder case and were later exonerated through DNA analysis”).

These fears are especially true in the cases of two of the men. Lawyers for Ramzi bin al-Shibh have long claimed that they have doubts about his mental health. Noting, during a pre-trial hearing last September, that his medications include “a psychotropic drug prescribed to persons with schizophrenia,” his lawyers stated that he “might not be competent to stand trial or able to participate in his own defense,” and lawyers for Mustafa al-Hawsawi have claimed that his involvement in the rush to martyrdom is not voluntary because he has been bullied by Mohammed and at least two other co-defendants.

In addition, David Glazier’s comments about “international credibility” only scratch the surface of what would undoubtedly be ferocious opposition to a trial that was perceived as providing a short-cut to convenient executions — even, for a moment, leaving aside other complaints that, if the men are guilty, then it would be far better to imprison them for life than to kill them, which, if their statements are to be believed, is the twisted “martyrdom” they seek.

However, what is most disappointing about the leaked proposal is a suggestion in the Times article that what is motivating the administration more than any other factor is the fear that establishing a case against these men in a conventional trial in a federal court might result in the Justice Department’s inability to mount an effective case against one of them. As the Times described it, “Officials involved in the process said that lawyers reviewing the case have said that federal-court charges against four of the men might be possible, but that the evidence might be too weak for a federal court case against one of the five, Walid Bin Attash.”

As David Seth explained,

Usually, when “the evidence might be too weak for a federal court case” the prosecution recognizes that it cannot meet its burden of proof and it dismisses the charges. If the prosecution doesn’t dismiss the charges, it’s up to a jury or a judge to find the accused not guilty. And then? And then the accused goes free. Not so in Gitmo. Evidently in Gitmo, somebody who might be released because the case is “too weak for a federal court case” instead gets to plead guilty and be executed.

Seth added, “And to think that I was worried that those with weak cases would be ‘preventively detained’ forever and ever. Even that would be better than coerced guilty pleas followed by execution.”

Sadly, I think that this analysis is accurate, and I can only hope that the leaking of the proposal — which has already provided yet another example of the administration’s inability to act decisively to undo the crimes of the Bush years — is intended to test the waters, and that the feedback will so overwhelmingly negative that the government will accept that, in cleaning up its inherited mess, justice must not only be pursued without cutting corners, but must also be seen to be done, and must also involve an acceptance that the men it is dealing with are criminals — not “warriors” who stand somehow outside the law — and that, as in any criminal case, it is possible that not every prosecution will be successful.

If senior officials need any further reminders about the importance of operating within the bounds of the law, they should recall that one of the reasons that Col. Morris Davis, the former chief prosecutor of the Commissions, resigned in October 2007 was the following exchange with William J. Haynes II, the Pentagon’s chief counsel, which took place in August 2005.

According to Col. Davis, Haynes “said these trials will be the Nuremberg of our time ” — a reference to the 1945 trials of Nazi leaders, “considered the model of procedural rights in the prosecution of war crimes,” as an article in the Nation described them. Col. Davis replied that he had noted that there had been some acquittals at Nuremberg, which had “lent great credibility to the proceedings,” and added, “I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process. At which point, his eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

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 also see my definitive Guantánamo prisoner list, published in March 2009.

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

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’s Confusion Over Guantánamo Terror Trials (June 2009).