Six Charged with 9/11 Murders: Why Now? And What About the Torture?

Finally, then, nearly six and a half years after the 9/11 attacks, the US administration has charged six Guantánamo detainees with, amongst other charges, terrorism, murder in violation of the law of war, attacking civilians, and conspiracy -- adding, for good measure, that it will seek the death penalty in the case of any convictions.

The six men are: Khalid Sheikh Mohammed (KSM), who confessed in his tribunal at Guantánamo last March that he was "responsible for the 9/11 operation, from A to Z"; Ramzi bin al-Shibh, reportedly a friend of the 9/11 hijackers, who helped coordinate the plan with KSM after he was unable to enter the United States to train as a pilot for the 9/11 operation, as he originally planned; Mustafa al-Hawsawi and Ali Abdul Aziz Ali (aka Ammar al-Baluchi), who are accused of helping to provide the hijackers with money and other items; Walid bin Attash, who is accused of selecting and training some of the hijackers; and, rather less spectacularly, Mohammed al-Qahtani, who is accused of trying and failing to enter the United States in August 2001 to become the 20th hijacker on 9/11.

The announcement of the charges is immensely significant. In one fell swoop, many of the complaints about Guantánamo appear to have been swept aside. These, chiefly, have centered on well-founded claims that the prison has mostly held innocent men or low-level Taliban foot soldiers. Of the 749 detainees who were held at the prison during its first two and half years of existence, none, according to dozens of high-level military and intelligence sources interviewed by the New York Times in June 2004, "ranked as leaders or senior operatives of al-Qaeda," and "only a relative handful -- some put the number at about a dozen, others more than two dozen -- were sworn Qaeda members or other militants able to elucidate the organization's inner workings."

Ten more reputedly significant detainees arrived at Guantánamo from secret CIA prisons in September 2004, and another 14 "high-value" detainees, including five of the men mentioned above, arrived in September 2006, but these arrivals -- which, in themselves, revealed the existence of secret prisons that were even less accountable than Guantánamo -- were hardly enough to convince any except the administration's most fervent and unquestioning supporters that the whole extra-legal experiment was worthwhile.

In charging detainees for their alleged connections with the 9/11 attacks, the administration has also managed to divert attention away from the stumbling progress of the trial system which will be used to prosecute the six men. The Military Commissions, dreamt up by Vice President Dick Cheney and his advisors in November 2001, judged illegal by the Supreme Court in June 2006 and reinstated later that year in the Military Commissions Act (MCA), have struggled repeatedly to establish their legitimacy.

Described by former military defense lawyer Lt. Cmdr. Charles Swift as fatally flawed because they included "no right to habeas corpus, no attorney-client privilege, forced guilty pleas for charges never made public, secret and coerced evidence, juries and presiding officers picked by executive fiat, [and] clients represented even if they declined legal counsel," the Commission process was supposedly cleaned up during the passage of the MCA, so that prosecutors are prevented from using secret evidence or evidence obtained through torture (although the use of information obtained through "controversial forms of coercion" -- torture, perhaps, by any other name -- remains at the discretion of the government-appointed military judge), but they have failed, to date, to secure a single significant victory.

Their only alleged success -- in the case of David Hicks, who accepted a plea bargain in March last year, admitting that he provided "material support for terrorism" and dropping well-documented claims that he was tortured by US forces in exchange for a nine-month sentence served in Australia -- was undermined last fall by Col. Morris Davis, the Commissions' former chief prosecutor, who resigned his post and then complained that the entire system was compromised by political interference. Currently, the Commissions are bogged down in pre-trial hearings for two detainees -- alleged "child soldier" Omar Khadr, and Salim Hamdan, a driver for Osama bin Laden -- whose cases have done nothing to assuage widespread concerns that the whole process remains both unjust and futile.

Now, however, with the focus fixed firmly on 9/11 -- the event that, all along, was supposed to have justified the invasion of Afghanistan, the detention without charge or trial of nearly 800 detainees in Guantánamo, and of hundreds more in Afghanistan and in secret prisons elsewhere -- the administration must be hoping that the global response to the news will wipe away the last six years of injustice and direct all attention exclusively on that dreadful day in September 2001 when over 3,000 people from 40 different countries died in the attacks on the World Trade Center and the Pentagon, and in the wreckage of a plane in Pennsylvania.

In spite of its laudable focus, however, the announcement still raises more questions than it answers. It is surely no coincidence, for example, that it came just six days after Michael Hayden, the director of the CIA, admitted that three of the "high-value" detainees -- including KSM -- had been subjected to waterboarding, a long-reviled torture technique that simulates drowning.

Ever since its notorious "Torture Memo" of August 2002, the administration has attempted to insist that "enhanced interrogations" counted as torture only if the pain endured was "of an intensity akin to that which accompanies serious physical injury, such as organ failure, impairment of bodily function, or even death," but these are, in the end, merely feeble attempts at semantic window-dressing. Under its international obligations -- as a signatory to the UN Convention Against Torture, for example, which makes it a crime for American officials to torture people outside the United States -- the administration is prohibited from practicing torture, and waterboarding is clearly torture.

The second problem is with the charges themselves. Noticeably, both KSM and Ramzi bin al-Shibh bragged about their involvement with 9/11 before they were captured. In April 2002, al-Jazeera journalist Yosri Fouda was granted an exclusive interview with the two men, and his report featured the following passage:

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