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gitmo military commissions
Tortured Guantánamo Prisoner Ramzi bin al-Shibh Unfit for 9/11 Trial, Says Military Judge
"This decision by the military judge today does mark the first time that the United States has formally acknowledged the CIA torture program produced profound and prolonged psychological harm," said al-Shibh's lawyer.
Sep 22, 2023
A U.S. military judge on Thursday found Guantánamo Bay prisoner Ramzi bin al-Shibh—who stands accused of being a key 9/11 organizer—unfit to stand trial because he suffers from mental illness his attorney says was caused by CIA torture years ago.
Air Force Col. Matthew McCall severed al-Shibh, a 51-year-old Yemeni, from the conspiracy case involving four other defendants who allegedly organized the cell of militants in Hamburg, Germany who hijacked American Airlines Flight 11 and flew it into the north tower of the World Trade Center in Manhattan on September 11, 2001. Al-Shibh had been charged as an accomplice in the case.
"This decision by the military judge today does mark the first time that the United States has formally acknowledged that the CIA torture program produced profound and prolonged psychological harm," David Bruck, al-Shibh's lead defense attorney, told reporters at Guantánamo Bay on Thursday evening. "This is exactly what the CIA promised would not happen."
McCall's ruling—which does not directly attribute torture as the cause of al-Shibh's afflictions—came after a three-member military "sanity board" diagnosed the defendant with post-traumatic stress disorder with secondary psychotic features and persecutory delusional disorder. This, the board said, renders him "unable to understand the nature of the proceedings against him or cooperate intelligently in his defense."
According toLawdragon editor-in-chief John Ryan:
Al-Shibh has long claimed that the detention facility guard force has subjected him to noises and vibrations, continuing his torture from CIA black sites... In recent years, his lawyers have also claimed that al-Shibh feels stabbing and other painful sensations that he experiences as directed invisibly at parts of his body. The government has denied the allegations.
"The totality of the facts demonstrates an accused who is wholly focused on his delusions," McCall wrote in his ruling, according to The New York Times. "Again and again, he focuses his counsel's work on stopping his delusional harassment, (which) demonstrates the impairment of his ability to assist in his defense."
Military prosecutor Clayton Trivett Jr. acknowledged that al-Shibh is delusional but insisted "he has the capacity to participate" in his defense, and that his refusal to do so is "really just a choice."
Citing al-Shibh's cooperation with his defense team, Trivett added that "this does not look like someone who is incompetent."
While McCall ordered pretrial proceedings to continue Friday for Khalid Sheikh Mohammed—the alleged mastermind of the attacks that killed nearly 3,000 people on 9/11—as well as three co-defendants, what comes next for al-Shibh is unknown.
All five of the 9/11 defendants—Mohammed, his nephew Ammar al-Baluchi, Walid bin Attash, Mustafa al-Hawsawi, and al-Shibh—were captured in Pakistan in late 2002 and early 2003 before being turned over to the United States. Hassan bin Attash, who was captured with bin al-Shibh in Karachi, has testified that they were both sent via extraordinary rendition to the notorius "Salt Pit" outside Kabul, Afghanistan, where suspected militant Gul Rahman was tortured to death in November 2002.
Like Rahman, al-Shibh says he was shackled naked to a ceiling in a painful "stress position" for days on end. He was then reportedly sent to Jordan, where one witness told Human Rights Watch he was subjected to "electric shocks, long periods of sleep deprivation, forced nakedness, and being made to sit on sticks and bottles."
Al-Shibh told the International Committee of the Red Cross that he was kept naked and shackled to the ceiling for a week at a black site in Poland, where he was also deprived of solid food for three to four weeks.
According to the CIA's own documents:
The interrogation plan proposed that... al-Shibh would be subjected to "sensory dislocation." The proposed sensory dislocation included shaving al-Shibh's head and face, exposing him to loud noise in a white room with white lights, keeping him "unclothed and subjected to uncomfortably cool temperatures," and shackling him "hand and foot with arms outstretched over his head (with his feet firmly on the floor and not allowed to support his weight with his arms)".
The CIA torture plan also included near-constant interrogations, slamming into walls, hard slaps to the face and abdomen, stress positions, sleep deprivation beyond 72 hours, and the interrupted drowning torture known as waterboarding.
Al-Shibh was also held at a black site in Morocco for three-and-a-half months, where Moroccan agents allegedly tortured him under CIA supervision. Moroccan interrogators videotaped some of the interrogations and handed the footage over to the CIA.
This isn't the first time that torture played a role in derailing the prosecution of an alleged 9/11 plotter. In 2009, Susan J. Crawford, the top George W. Bush administration official in charge of deciding whether to bring Guantánamo prisoners to trial, declared that the U.S. "tortured" Mohammed al-Qahtani, the alleged would-be 20th 9/11 hijacker, and declined to green light his prosecution.
Col. Stuart Crouch, a Guantánamo prosecutor whose Marine Corps buddy was a pilot on one of the planes that crashed into the World Trade Center on 9/11, refused to prosecute Mohamedou Ould Slahi—who allegedly helped organize the plane's hijacking—because he was tortured.
Additionally, numerous Guantánamo officials have resigned over what they claim is a corrupt military commission system. Former lead prosecutor Col. Morris Davis—who called trials there "rigged from the start"—stepped down in 2007, claiming he was told by top Bush lawyer Jim Haynes that acquittals were unacceptable.
"I now understand that the commissions were doomed from the start. We used new rules of evidence and allowed evidence regardless of how it was obtained."
At least four other military prosecutors—Maj. Robert Preston, Capt. John Carr, Capt. Carrie Wolf and Darrel J. Vandeval—requested to be removed from the military commissions because they also felt that the proceedings were unfair.
In 2021, seven out of eight members of the military jury convened to hear the case against Guantánamo detainee and alleged terrorist plotter Majid Khan recommended total clemency after the defendant testified how he endured torture including rape, being hung from a ceiling beam, and being waterboarded while he was held at a CIA black site in Afghanistan.
Earlier this year, Ted Olson—the former Bush administration solicitor-general who then argued against basic legal rights for Guantánamo Bay prisoners and defended their indefinite detention and torture—made a stunning admission, saying the military commissions don't work and should be shut down, and the government should strike plea deals with 9/11 defendants held at the prison.
"In retrospect, we made two mistakes in dealing with the detained individuals at Guantánamo," Olson wrote. "First, we created a new legal system out of whole cloth. I now understand that the commissions were doomed from the start. We used new rules of evidence and allowed evidence regardless of how it was obtained."
Defense and prosecution attorneys had been negotiating a possible plea deal that would have spared the defendants the prospect of execution. However, earlier this month the White House said that President Joe Biden would not approve or deny such a request because he "was unsettled about accepting terms for the plea from those responsible for the deadliest assault on the United States since Pearl Harbor," according to The Associated Press.
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Top Bush Lawyer Admits Guantánamo Military Commissions 'Doomed From the Start'
"Nothing will bring back the thousands whose lives were so cruelly taken that September day," writes Ted Olson, a former U.S. solicitor-general. "But we must face reality and bring this process to an end."
Feb 03, 2023
Ted Olson—the former U.S. solicitor-general in the George W. Bush administration who argued against basic legal rights for Guantánamo Bay prisoners and defended their indefinite detention and torture—made a stunning admission Thursday: The Gitmo military commissions don't work and should be shut down, and the government should strike plea deals with 9/11 defendants held at the prison.
In a Wall Street Journalopinion piece, Olson—perhaps best known for his consequential reversal on the issue of same-sex marriage equality—wrote that he "led a special team of lawyers tasked with overseeing all court challenges to the government's policy of detaining terrorism suspects" at Gitmo.
In that capacity, Olson—whose wife was a passenger on the plane that crashed into the Pentagon on 9/11—argued in the U.S. Supreme Court in Hamdan v. Rumsfeld that the "unlawful enemy combatants" who were imprisoned, and often tortured, at Guantánamo were not entitled to protections afforded by the Geneva Conventions. Nor were they subject to U.S. law or allowed a defense in American courts, Olson asserted, because the men (and children) were "stateless terrorists" and the prison is located on Cuban soil—even though Cuba has no jurisdiction over the military base.
"In retrospect, we made two mistakes in dealing with the detained individuals at Guantánamo," wrote Olson. "First, we created a new legal system out of whole cloth. I now understand that the commissions were doomed from the start. We used new rules of evidence and allowed evidence regardless of how it was obtained."
\u201cI can't understate the importance of this oped from Ted Olson, who was Bush's Solicitor General during 9/11.\n\nHe says he now understands the Gitmo military commissions were doomed from the start and calls for acceptance of 9/11 defendants' plea bargains. https://t.co/3NUVPSs2YM\u201d— Allegra Harpootlian (@Allegra Harpootlian) 1675365637
Evidence obtained through torture led to cases being declined or more lenient sentences than prosecutors sought. Susan J. Crawford, the Bush official in charge of deciding which terrorism suspects to try before Gitmo military commissions, declined to prosecute Mohammed al-Qhatani, the alleged would-be 20th 9/11 hijacker because, as she admitted in 2009, "we tortured" the defendant.
Col. Stuart Crouch, a Guantánamo prosecutor whose Marine Corps buddy was a pilot on one of the planes that crashed into the World Trade Center on 9/11, refused to prosecute Mohamedou Ould Slahi—who allegedly helped organize the plane's hijacking—because Ould Slahi was tortured.
In another example, seven out of eight members of a military jury convened to hear the case against Guantánamo detainee and alleged terrorist plotter Majid Khan recommended total clemency after the defendant testified how he endured torture including rape, being hung from a ceiling beam, and being subjected to the interrupted drowning method known as waterboarding while he was held at a CIA "black site" in Afghanistan.
Olson wrote that the U.S. legal system would have been more than capable of handling the cases of terrorism defendants, "but we didn't trust America's tried-and-true courts."
"In the 20 years since this ordeal began, no trial has even begun. There have been years of argument in pretrial hearings, which have produced no legal justice for the victims of 9/11," he noted. "Instead of helping Americans learn more about who carried the attacks out and why, they have produced seemingly endless litigation largely concerned with the treatment of detainees by government agents and the government's attempts to suppress certain information."
\u201cThis is big.\n\nTheodore Olson, who was Solicitor General during 9/11 and lost his wife that day, has come out in support of plea deals for the 9/11 defendants at Guant\u00e1namo.\n\nThe US must conclude these legal proceedings as quickly and justly as possible.\nhttps://t.co/S7GIo31CyP\u201d— ACLU (@ACLU) 1675363349
After Bush-era Pentagon General Counsel Jim Haynes allegedly told lead Guantánamo prosecutor Col. Morris Davis that acquittals were unacceptable, Morris resigned over concerns the process was "rigged." Other Gitmo prosecutors, including Lt. Col. Darrel Vandeveld, Maj. Robert Preston, Capt. John Carr, and Capt. Carrie Wolf, also requested transfers from the "rigged" military commissions.
"Our second mistake," Olson wrote in his Journal piece, "was pursuing the death penalty through the commissions. Death penalty cases are the most hotly contested legal proceedings, given their irreversible nature. We doomed these newly created commissions to collapse under their own weight."
Olson continued:
While prosecuting these individuals in federal civilian courts would have been the right decision 15 or 20 years ago, Congress foreclosed that option in 2010 by banning the transfer of detainees to the U.S. for any purpose. Even if Congress were to lift that ban—which seems extremely unlikely—the only guarantee that federal court prosecution brings is years of appeals resulting from the legal morass of the past two decades. This is no resolution.
"If the 9/11 defendants held at Guantánamo are willing to plead guilty, and accept a life sentence at the military prison instead of the death penalty, we should accept that deal," OIson argued.
"Nothing will bring back the thousands whose lives were so cruelly taken that September day," Olson stressed. "But we must face reality and bring this process to an end. The American legal system must move on by closing the book on the military commissions and securing guilty pleas."
"The U.S. must bring these legal proceedings to as rapid and just a conclusion as possible."
Last year, military prosecutors and Guantánamo defense attorneys began negotiating potential plea deals that could spare 9/11 suspects from being executed in exchange for guilty pleas that would result in life imprisonment—and the continued operation of Gitmo for the foreseeable future.
Olson's admission is remarkable because it stands alone among top Bush, CIA, and Pentagon lawyers like Haynes, Alberto Gonzalez, John Yoo, Jay Bybee, and John Rizzo who designed, deployed, and defended the administration's policies regarding indefinite detention, torture, extraordinary rendition, and denial of basic legal rights.
Nearly 800 men and boys have been imprisoned at Guantánamo since it opened in January 2002. According to Col. Lawrence Wilkerson, who served as chief of staff to then-Secretary of State Colin Powell, the majority of Gitmo detainees were innocent and then-President George W. Bush, Vice President Dick Cheney, and Defense Secretary Donald Rumsfeld knew it.
Although Bush's successor, President Barack Obama, took steps toward closing Guantánamo and ending torture, both endured, even as Gitmo's population decreased dramatically during the Bush and Obama administrations.
Five Guantánamo detainees have been released during the tenure of President Joe Biden, including Khan, who was transferred to Belize earlier this week. Biden—whose former press secretary said closing Guantánamo is "our goal and our intention"—has been criticized for failing to close the prison after 21 years in operation.
As Olson noted in his opinion piece, 20 of the 34 remaining Guantánamo prisoners have been cleared for release. NBC News reported Thursday that "two brothers from Pakistan, Abdul Rahim Ghulam Rabbani and Mohammed Ahmed Ghulam Rabbani, are also nearing transfer, according to two senior U.S. officials."
"Nine of the remaining men, including the 9/11 defendants, face charges in the military tribunals," Olson wrote. "To date, there have been a total of nine convictions, several of which have been overturned in whole or in part on appeal, mostly by U.S. federal courts. Today, there are no trial dates set for any of the still-pending cases."
Unlike Maj. Gen. Michael Lehnert, Gitmo's first commander, Olson does not go so far as to call for the prison's closure. However, Olson concludes that "the U.S. must bring these legal proceedings to as rapid and just a conclusion as possible."
"True justice seems unattainable," he wrote. "The best the U.S. government can do at this point is negotiate resolutions of the remaining Guantánamo cases."
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