Justice and the Enemy Read online

  Khalid Sheikh Mohammed later claimed credit for other plots both planned and realized. One of the most nauseating was the 2002 murder of Daniel Pearl, a reporter for the Wall Street Journal who was beheaded by an Al Qaeda gang when he was following up post-9/11 leads in Pakistan. Pearl was killed at least in part because he was Jewish and Khalid Sheikh Mohammed took evident pleasure in it, boasting that he had committed the crime himself “with my blessed right hand.”

  That was not all; according to Indonesian security and to the arrested Indonesian terrorist known by his nom de guerre Hambali, after 9/11 Khalid Sheikh Mohammed also provided funding for attacks throughout Southeast Asia. The most destructive of these was the bombing of Bali nightclubs by Islamic extremists in October 2002 that killed 202 people and wounded another 240.

  By no stretch of imagination or law could such vicious attacks fall under the accepted definitions of legal warfare between high contracting parties to the Geneva Conventions. Under none of the laws of war could Khalid Sheikh Mohammed qualify for P.O.W. status when captured.

  An important step in that direction was made in March 2002 when Abu Zubaydah, Al Qaeda’s logistics specialist, was seized in Pakistan after a gunfight in which he was badly wounded. The C.I.A., anxious not to lose a valuable source of intelligence, had him nursed back to health. The F.B.I. subsequently interrogated him; he gave some important information and then is reported to have “clammed up.” 24 Given his high value as a source of information, the decision was made to subject him to several of the “enhanced interrogation techniques,” including waterboarding. 25 George W. Bush later said that “Zubaydah revealed large amounts of information on Al Qaeda’s structure and operations. He also provided leads that helped reveal the location of Ramzi bin al-Shibh, the logistical planner of the 9/11 attacks.” 26

  After Ramzi bin al-Shibh was captured, he did not need to be waterboarded. He quickly cooperated with his questioners and apparently confirmed that he had been plotting a British version of 9/11—flying planes into Heathrow Airport and central London. In November of that year, Abd al-Rahin al-Nashiri, the Saudi accused of planning the bombing of the U.S.S. Cole in Aden Harbor in 2000, was also arrested. Unlike Ramzi bin al-Shibh, al-Nashiri resisted interrogation and was the second Al Qaeda detainee to be waterboarded.

  On March 1, 2003, Khalid Sheikh Mohammed himself was seized in Rawalpindi after an informer had gone to the bathroom and managed to text, “I am with KSM.” That brought the C.I.A. and Pakistani security to the hiding place. When they stormed the house, Mohammed shot a Pakistani soldier in the foot before he was overpowered. Captured with him was another Al Qaeda official, Mustafa al-Hawsawi, who was described as the paymaster of 9/11. The Pakistanis also found that they had stumbled into an Aladdin’s Cave of computers, cell phones, documents, and other “pocket litter” providing invaluable intelligence. 27 (The informer not only survived but was also given by the U.S. government a $25 million reward and a new identity in the States. According to President Bush he explained his actions thus: “I want my children free of these madmen who distort our religion and kill innocent people.” 28)

  A photograph of Khalid Sheikh Mohammed, looking fat and unkempt, was published around the world after his arrest. (Ever the egotist, he was later said to be infuriated by it.) He was at first boastfully defiant. He asserted that he would talk only when he was in New York and could see his lawyer—which was what had happened to his nephew Ramzi Yousef after his arrest. But times had changed since 9/11 and the U.S. had no intention of affording him such privileges. Instead, he was bundled off into a succession of the secret “black site” prisons created and maintained by the C.I.A., the most important of which was in Poland. 29

  According to President Bush and other members of the administration, Khalid Sheikh Mohammed at first refused to talk and spewed contempt for his interrogators, telling them that Americans were weak and without resilience; they would never be able to stop Al Qaeda. His C.I.A. jailers understood that he had been trained to resist interrogation. Asked about future attacks, he taunted them: “Soon you will know.” According to classified documents later leaked, he threatened a “nuclear hellstorm” if Osama bin Laden were captured or killed. He claimed that Al Qaeda had hidden a nuclear bomb in Europe for detonation if any harm came to Al Qaeda’s leader. This frightening assertion was unprovable but it added to the Bush administration’s real fear of Al Qaeda’s well stated ambitions to use weapons of mass destruction against the West. 30

  In his memoirs George W. Bush records that George Tenet, director of the C.I.A., asked permission to use the “enhanced interrogation techniques” including waterboarding on their prisoner. Bush writes that he thought about Daniel Pearl’s widow, about all those who had died on 9/11, and about his duty to protect the United States from another act of terror. “‘Damn right,’ I said.” 31 In 2010, Bush was still unrepentant: “Yeah, we waterboarded Khalid Sheikh Mohammed. I’d do it again to save lives.” 32

  Khalid Sheikh Mohammed’s resistance was described by one American official as “superhuman.” Altogether he is reported to have been waterboarded 183 times—but there is a dispute over what exactly that meant. According to former administration officials, 183 refers to the number of times water was poured onto him rather than the number of separate waterboarding sessions. This may sound like hairsplitting, but in a discussion about such a complex, contentious issue, precision is desirable. g According to U.S. officials, when he finally broke, he was not grudging to his interrogators. Instead he began to give seminars on Al Qaeda’s structures, personnel, logistics, communications, plans, and ambitions. In 2004 and 2005 the C.I.A. compiled two classified documents on the cornucopia of information he provided: “Khalid Shaykh Muhammad: Preeminent source on Al-Qa’ida” and “Detainee Reporting Pivotal for the War Against Al-Qa’ida.”

  Although heavily censored before declassification in 2009, these papers make for extraordinary reading. The first stated that since his capture, Khalid Sheikh Mohammed “has become one of the U.S. government’s key sources on Al Qaeda.” He had provided numerous reports “that have shed light on Al Qaeda’s strategic doctrine, plots and probable targets, key operatives, and the likely methods for attacks in the U.S. homeland, leading to the disruption of several plots against the United States. Information from KSM has not only dramatically expanded our universe of knowledge on Al Qaeda’s plots but has provided leads that assisted directly in the capture of other terrorists.” 33

  Before the fifth anniversary of 9/11 in September 2006, President Bush made an important, contentious speech at the White House to families of some of the 9/11 victims. He said that after 9/11 the U.S. and its allies had launched operations around the world to capture or kill terrorists plotting against the United States. “These are enemy combatants who are waging war on our nation. We have a right under the laws of war and we have an obligation to the American people, to detain these enemies and stop them from rejoining the battle.”34

  It was then Bush revealed both the hitherto secret C.I.A. “black sites” for “high-value” significant captured terrorists and the enhanced interrogation techniques first used on Abu Zubaydah, after he stopped talking. “And so, the C.I.A. used an alternative set of procedures. These procedures were designed to be safe, to comply with our laws, our Constitution, and our treaty obligations. . . . The procedures were tough, and they were safe, and lawful, and necessary.” Some three weeks later, the president told the Reserve Officers Association, “The questioning of these and other suspected terrorists provided information that helped us protect the American people. They helped us break up a cell of Southeast Asian terrorist operatives that had been groomed for attacks inside the United States. They helped us disrupt an Al Qaeda operation to develop anthrax for terrorist attacks. They helped us stop a planned strike on a U.S. marine camp in Djibouti, and to prevent a planned attack on the U.S. consulate in Karachi, and to foil a plot to hijack passenger planes and to fly them into Heathrow Airport and London’
s Canary Wharf.”

  Bush also argued that the victims’ families had a right to see justice delivered to those suspected of being the killers and announced that he was transferring the remaining fourteen denizens of the secret C.I.A. program to Guantanamo for trial before the military commissions that he had authorized after 9/11. However, the commissions remained problematic. The Pentagon had taken thirty months to work out the procedures and to prepare for the first trial. Bush was frustrated by the deliberate approach, as he later revealed in his memoirs. “No doubt it was a complex legal and logistical undertaking. But I detected a certain lack of enthusiasm for the project.” He was correct—the military hierarchy was not keen to undertake a large caseload of military trials. Much more important, the commissions themselves had been struck down by the Supreme Court only a few weeks before Bush made his speech.

  The crucial case that the Court had been considering involved Salim Hamdan, who was believed by some intelligence officers to be a more significant Al Qaeda operative than his frequent description as Osama bin Laden’s driver suggested. He was captured in Afghanistan in a car carrying a surface-to-air missile. After he was charged in 2004, his lawyers demonstrated that military commissions would not necessarily ease the path of the government. Diligent on behalf of Hamdan, they filed a lawsuit challenging the legality of the commissions.

  The Appeals Court upheld their validity. But Hamdan v. Rumsfeld then went to the Supreme Court and in June 2006, that court decided by a 5–3 majority that the commissions violated Common Article 3 of the Geneva Conventions because they had been established without explicit authorization of Congress. In other words, unlike Franklin Roosevelt in the case of Ex Parte Quirin, Bush needed specific Congressional approval. Without that, the majority of the Supreme Court decided, the commissions were not a “regularly constituted court.”

  The Supreme Court’s majority opinion in Hamdan v. Rumsfeld was both contentious and hugely important. Donald Rumsfeld later called it “a staggering blow” 35 to both the military commission system and the administration’s position on wartime detentions.

  Jack Goldsmith thought the majority opinion was “informed more by the atmospherics of executive extravagance and a seemingly waning terrorist threat than by strict analysis of legal materials.” He, and other lawyers, disagreed with the Court’s interpretation of Common Article 3 in this case. But that is the nature of law—perpetual argument. The decision meant that at least a part of the Geneva Conventions did after all apply in the War on Terror and it gave detainees far more rights than the administration had ever considered legally necessary. Altogether it was a devastating defeat for the Bush administration.

  In his speech, Bush made provocative remarks about the Geneva Conventions. He claimed that the provisions of Common Article 3h referred to in Hamdan v. Rumsfeld were “vague and undefined” and argued that the Court’s interpretation could put at risk military and intelligence personnel involved in the capture and questioning of terrorists.

  As a consequence, Bush announced he was immediately asking Congress to pass clarifying legislation that would determine what was specifically forbidden in the handling of enemies under the War Crimes Act, and to make explicit that America was meeting its obligations under Common Article 3 of the Conventions. Finally he wanted Congress to make it clear that captured terrorists could not use the Conventions as a basis to sue American officials in American courts. “We’re engaged in a global struggle—and the entire civilized world has a stake in its outcome.... We’re fighting for the cause of humanity against those who seek to impose the darkness of tyranny and terror upon the entire world.” 36

  Bush aroused much anger for his observations about the Geneva Conventions. i But he was not alone; concern was growing that the Conventions needed revision. I have already quoted the British Parliament’s Foreign Relations Committee’s criticisms; the British Minister of Defense, John Reid, also called for them to be re-examined in face of the realities of asymmetric war at the start of the twenty-first century. Reid said that the Conventions had been written fifty years before, and “We risk trying to avoid twenty- first-century conflict with twentieth-century rules, which when they were devised did not contemplate the type of enemy which is now extant.” Now, with Al Qaeda and other Islamists, said Reid, the West was fighting an enemy “which obeys no rules whatsoever” and “We now have to cope with a deliberate regression towards barbaric terrorism by our opponents.” 37

  Tiring of the conventional pieties of America’s critics, Reid said that it was not “sufficient just to say [Guantanamo] is wrong” and the world had to protect itself against the declared ambition of terrorists to acquire weapons of mass destruction.38 It was worth noting that John Reid came from the opposite end of the political spectrum from George W. Bush—he was a senior Cabinet minister in Britain’s left-of-center Labour government. Yet his analysis of the inabilities of the Geneva Conventions to meet the challenges of warfare in the twenty-first century was very similar.

  On September 28, 2006 Congress passed the Bush administration’s newly-crafted Military Commissions Act, the most far-reaching congressional action in the War on Terror. The Act authorized military commissions and defined the crimes they could try; it defined breaches of the Geneva Conventions’ Common Article 3 narrowly; it immunized C.I.A. personnel who had inadvertently violated the Convention; and it sought to remove habeas jurisdiction from military courts.

  On October 17, 2006 President Bush signed the new Act into law. He wrote later that he believed that “the American people understood the need for intelligence professionals to have the tools to get information from terrorists planning attacks on our country. And they did not want Guantanamo detainees brought to the United States and tried in civilian courts with the same constitutional rights as common criminals.” 39

  In a newly constructed courtroom in Guantanamo Bay, Salim Hamdan was once again put on trial. He was charged under the new law with material support for terrorism and convicted. His sentence gave him credit for time already served and he was released to Yemen after another five months in Guantanamo. This mild sentence did not suggest that the new military commissions would be the ruthless instrument of the government’s will that their critics claimed.

  On February 11, 2008 the U.S. employed the new military commission system to charge Khalid Sheikh Mohammed together with Ramzi Binalshibh, Mustafa Ahmad al-Hawsawi, Ali Abd al-Aziz Ali, and Walid Bin Attash for the attacks on 9/11. They were charged with terrorism, mass murder, providing material support for terrorism, conspiracy, the hijacking of planes, attacking civilian objects, causing serious bodily injury, and destroying property in violation of the laws of war. The charges included almost 3,000 individual counts of murder—one for each of the people killed in the 9/11 attacks—and listed 167 overt acts allegedly committed by the defendants in that assault.

  In the charge sheet, Khalid Sheikh Mohammed was alleged to be “the mastermind of the 9/11 attacks by proposing the operational concept to Osama bin Laden as early as 1996, obtaining the funding from bin Laden and overseeing the entire operation.” 40

  Bin Attash was charged, inter alia, with administering an Al Qaeda training camp in Afghanistan where two of the hijackers were trained. Binalshibh was accused of having helped to find flight schools for the hijackers and having provided funds for the conspiracy. Ali was accused of sending some $120,000 to the hijackers for their expenses and flight training and facilitating their travel to the United States. Hawsawi was charged with providing the hijackers with money, food, clothing, travellers’ checks, rental cars, and credit cards.

  Khalid Sheikh Mohammed called the military tribunal before which he was arraigned “an inquisition,” but he made the most of it. He behaved as a showman, “tossing self-aggrandizing broadsides from his perch at the front of a courtroom and then retreating into self-satisfied smiles.” 41

  He seemed determined to seize responsibility for almost every well-known terrorist outrage that had occurred a
round the world in recent years. He appeared to be trying to show that he was far more important than bin Laden himself. Among his boasts were these:1. I hereby admit and affirm without duress that I was a responsible participant, principal planner, trainer, financier (via the Military Council Treasury), executor, and/or a personal participant in the following:

  2. I was responsible for the 1993 World Trade Center Operation.

  3. I was responsible for the 9/11 Operation, from A to Z.

  4. I decapitated with my blessed right hand the head of the American Jew, Daniel Pearl in the city of Karachi, Pakistan. For those who would like to confirm, there are pictures of me on the Internet holding his head.

  5. I was responsible for the Shoe Bomber Operation to down two American airplanes.

  6. I was responsible for the Filka Island Operation in Kuwait that killed two American soldiers.

  7. I was responsible for the bombing of a nightclub in Bali, Indonesia which was frequented by British and Australian nationals.