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A Guantanamo Bay detainee who was tortured by military interrogators is again being charged with war crimes by Pentagon prosecutors, six months after those charges were dropped because of the coercive techniques used to obtain information were likely to be revealed at his trial.
Mohammed al-Al-Qahtani, the alleged "20th hijacker", is believed to be one of the first detainees subjected to harsh questioning after the Justice Department issued a legal opinion in August 2002 permitting U.S. government interrogators to sidestep the Geneva Convention and use cruel and humiliating techniques, from forced nudity to stress positions to waterboarding, to extract information.
Last February, the Pentagon announced its intention to pursue the death penalty against al-Qahtani and five other men for their alleged involvement in the 9/11 attacks.
On May 9, the Pentagon dismissed the case against al-Qahtani without explanation - and without prejudice, meaning that the charges could be reinstated at a later date. Though the charges were dropped, he remained detained at Guantanamo.
The decision to drop war-crimes charges against al-Qahtani underscored the consequences of the Bush administration's descent into torture and other abusive treatment of "war on terror" detainees. If al-Qahtani's case goes forward, the U.S. government would be forced to reveal its own violations of the Geneva Convention, anti-torture statutes and the laws of war, according to lawyers representing al-Qahtani. "All of the [incriminating] statements Mohammad al-Qahtani made or is alleged to have made were the result of torture or made under the threat of torture and that is in my view why the government decided to dismiss his case at this point," said Vince Warren, executive director of the Center for Constitutional Rights (CCR) in New York, the organization that has been representing al-Qahtani since 2005.
But the chief military prosecutor for Guantánamo, Col. Lawrence J. Morris of the Army indicated he would be willing to take that chance.
Colonel Morris, in an interview with The New York Times, said prosecutors determined there was "independent and reliable evidence" to show Al-Qahtani had been plotting with the 9/11 hijackers.
"His conduct is significant enough," Colonel Morris told The Times, "that he falls into the category of people who ought to be held accountable by being brought to trial."
More than 770 terror suspects have been imprisoned at Guantánamo since it opened in 2002. More than 500 have been released without being formally charged with a crime. So far, of the 250 who are still detained at the facility, only 23 have been charged with a crime. Two have been convicted and one has pleaded guilty.
Al-Qahtani's military defense lawyer, Lt. Col. Bryan T. Broyles of the Army, told The Times the new charges against Al-Qahtani would demonstrate "the moral bankruptcy of this whole process; that there's nothing we can do to these people that is too much, that there are no consequences for our own misconduct."
The harsh treatment of al-Qahtani was catalogued in an 84-page log of his interrogation that was leaked in 2006. The so-called "torture log" shows that beginning in November 2002 and continuing well into January 2003, al-Qahtani was subjected to sleep deprivation, interrogated in 20-hour stretches, poked with IV's, and left to urinate on himself.
On Dec. 11, 2002, interrogators began to apply what they called the "pride and ego down approach," subjecting him to religious and sexual humiliation, making him bark like a dog, and calling him "a pig" as he was made to pick up piles of trash with his hands cuffed.
According to one entry for Dec. 13, 2002, the interrogators sought to "escalate the detainee's emotions."
"A mask was made from an MRE [meals ready to eat] box with a smiley face on it and placed on the detainee's head for a few moments. A latex glove was inflated and labeled the 'sissy slap' glove. This glove was touched to the detainee's face periodically after explaining the terminology to him.
"The mask was placed back on the detainee's head. While wearing the mask, the team began dance instruction with the detainee. The detainee became agitated and began shouting. The mask was removed and detainee was allowed to sit. Detainee shouted and addressed lead [interrogator] as 'the oldest Christian here' and wanted to know why lead allowed the detainee to be treated this way."
The log contains numerous entries describing al-Qahtani's reaction to the interrogations, as he cried, shook, moaned, yelled, prayed, cried out for Allah, trembled uncontrollably and asserted his innocence.
Psychological Trauma
According to a report by CCR attorneys, "on one occasion described in the interrogation log, Mr. al-Qahtani was rushed to a military base hospital when his heart rate fell dangerously low during a period of extreme sleep deprivation, physical stress and psychological trauma.
"The military flew in a radiologist from the U.S. Naval Station in Puerto Rico to evaluate the computed tomography ('CT' or 'CAT') scan. After being permitted to sleep a full night, medical personnel cleared Mr. al-Qahtani for further interrogation the next day. During his transportation from the hospital, Mr. al-Qahtani was interrogated in the ambulance."
Legal experts, who have followed the al-Qahtani case since his capture in December 2001, say a core problem for the Pentagon was that the evidence against al-Qahtani was derived substantially from admissions that he made while under harsh interrogation.
There was also circumstantial evidence related to al-Qahtani's attempt to enter the United States before the 9/11 attacks. Immigration official turned him back and U.S. government officials claim that action forced the 9/11 hijackers to proceed with only 19 participants.
The Geneva Convention bars abusive or demeaning treatment of captives. However, John Yoo, then a senior lawyer in the Justice Department's Office of Legal Counsel, concluded that the Geneva Convention did not apply to alleged members of al-Qaeda.
As reported previously, former Secretary of Defense Donald Rumsfeld in a December 2002 action memorandum approved specific interrogation methods used against al-Qahtani.
Months of Torture
Gitanjali S. Gutierrez, an attorney with CCR and the lead attorney defending al-Qahtani, said in a sworn declaration that his client, imprisoned at Guantanamo, was subjected to months of torture based on verbal and written authorizations from Rumsfeld.
"Mr. al-Qahtani was subjected to a regime of aggressive interrogation techniques, known as the 'First Special Interrogation Plan,'" Gutierrez said. "Those techniques were implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller.
"These methods included, but were not limited to, 48 days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation, and threats with military dogs."
Gutierrez's claims about the type of interrogation al-Qahtani endured have since been borne out by the release of hundreds of pages of internal Pentagon documents, which described interrogation methods at Guantanamo, as well as by the findings of two independent reports on prisoner abuse.
Rumsfeld's action memo was criticized by Alberto Mora, the former general counsel of the Navy.
"The interrogation techniques approved by the Secretary [of Defense] should not have been authorized because some (but not all) of them, whether applied singly or in combination, could produce effects reaching the level of torture, a degree of mistreatment not otherwise proscribed by the memo because it did not articulate any bright-line standard for prohibited detainee treatment, a necessary element in any such document," Mora wrote in a 14-page letter to the Navy's inspector general.
Additionally, a Dec. 20, 2005, Army Inspector General Report relating to the capture and interrogation of al-Qahtani included a sworn statement by Lt. Gen. Randall M. Schmidt, who said Secretary Rumsfeld was "personally involved" in the interrogation of al-Qahtani and spoke "weekly" with Maj. Gen. Miller about the status of the interrogations between late 2002 and early 2003.
Last February, the Justice Department's Office of Professional Responsibility (OPR) confirmed that it had launched a formal investigation to determine, among other issues, whether department attorneys provided the White House with poor legal advice when it said interrogators could use harsh interrogation methods against detainees.
CCR's Warren said a trial of al-Qahtani would force the government to disclose how it obtained information from the defendant about alleged terrorist plans and the inner workings of al-Qaeda.
"The government would have to talk about how the information was obtained," from al-Qahtani, Warren said. "That would never be able to survive in court because the torture log is clear that Mr. al-Qahtani provided information because he was being tortured."It's unclear how President-elect Barack Obama and his top advisers would deal with the al-Qahtani case. Obama, a former Constitutional law professor, has said he would abandon the military commissions proceedings implemented by the Bush administration to prosecute terror suspects and instead suggested trials could be held in U.S. courts. In an interview on 60 Minutes last week, Obama said he plans to take early action on shutting down Guantanamo and ensuring brutal interrogation methds are not used against detainees. "I have said repeatedly that I intend to close Guantanamo and I intend to follow through on that," Obama told 60 Minutes correspondent Steve Kroft. "I have said repeatedly America doesn't torture and I'm going to make sure we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world.
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