The trial had other benefits, too: media coverage revealed to the world that al-Qaeda had tried to acquire material for a nuclear weapon in the mid-1990s. (Special procedures were put in place to make sure that no classified information leaked from the proceedings.) Three years after the attacks, the murderers were sentenced to life without parole. Instead of becoming martyrs, they will languish in obscurity in a high-security American prison until they die. It’s hard to imagine a better outcome for the victims’ families or the American public.
Contrast that with the planned military tribunal of Ramzi bin al-Shibh and Khalid Sheikh Mohammed (widely known as KSM), the operational commanders of the 9/11 attacks. It was announced in February that bin al-Shibh and KSM will likely appear before a panel of military judges at Guantanamo, more than six years after the assaults on Washington and New York. However, the proceedings may not start until years from now, considering the numerous legal challenges that bin al-Shibh’s and KSM’s lawyers are likely to mount.
Of all those potential challenges, the most potent the lawyers will raise is that their clients were tortured. The CIA has admitted that Khalid Sheikh Mohammed was waterboarded, a practice that the United States prosecuted as a war crime after World War II. Bin al-Shibh does not appear to have been waterboarded. However, CIA Director General Michael Hayden recently admitted to Congress that around thirty detainees had been subjected to “enhanced interrogation techniques.” Given bin al-Shibh’s high rank in al-Qaeda, it would be extremely surprising if he weren’t interrogated using such procedures. In short, it’s hard to imagine how the handling of KSM and bin al-Shibh could have been less satisfac-tory for the victims’ families or America’s reputation.
What is perhaps most astonishing of all is that the mistreatment of KSM and bin al-Shibh was entirely unnecessary. Before they were captured, they had explained the details of the 9/11 attacks in an April 2002 interview with Yosri Fouda, an Al Jazeera correspondent. Fouda’s interviews resolved key questions that investigators still had about the plotfor instance, that United 93 was on its way to destroy the Capitol when it crashed into a field in Pennsylvania, and that al-Qaeda had once contemplated crashing planes into American nuclear facilities. KSM and bin al-Shibh explained how they kept Osama bin Laden, then living in Afghanistan, informed about the timing of the attack, and they laid out the coded correspondence they had conducted with the lead 9/11 pilot, Mohammed Atta.
The CIA provided summaries of the interrogations of KSM and bin al-Shibh to the 9/11 Commission. There is little or no difference between the account that KSM and bin al-Shibh freely volunteered to Fouda in the spring of 2002 and the version the commission published in its 2004 report. Nor was Fouda’s reporting difficult to find: he hosted a one-hour documentary on Al Jazeera, wrote a long piece in London’s Sunday Times, and coauthored a book, Masterminds of Terror, about KSM and bin al-Shibh. By the time CIA officials captured the pair, a full account of their operations was only a Google search away.
Obviously, then, it was unnecessary to waterboard KSM to find out what he knew about the 9/11 plot. What, though, of the administration’s assertion that coercive interrogation techniques have saved American lives? To assess that claim, we must examine the details of other terrorist plots that KSM gave up after his capture, presented in a document the government released in 2006:
It all sounds very frightening, except that there is no indication that these plots were ever more than talk. The one exception is the plan by Iyman Faris, an Ohio trucker who worked for KSM, who researched the feasibility of bringing down the Brooklyn Bridge with a pair of gas cutters in 2002, an enterprise akin to demolishing the Empire State Building with a firecracker. If that is all we could discover by waterboarding the most senior al-Qaeda member in our custody, it’s thin stuff indeed.
It’s impossible to know whether KSM might have volunteered the same information under normal questioning, but it’s worth considering the views of Brad Garrett, a retired FBI special agent who secured a fulsome, uncoerced confession from KSM’s nephew, Ramzi Yousef, the mastermind of the 1993 Trade Center bombing. “The intelligence world has decided that collecting intelligence is different than getting criminals to tell the truth, which is complete and utter BS,” Garrett told me. “Their argument is that law enforcement is working off of past tense (what crime did you commit?) and the intelligence world is trying to find out the future (what are you going to blow up?). The reality is that you must first determine if what you are getting is truthful, whether it be present or past tense.”
Nothing better illustrates this point than KSM’s claim that he killed the Wall Street Journal reporter Daniel Pearl in Pakistan in 2002. According to a Western official who was deeply involved in the Pearl investigation, there is simply no evidence that KSM killed him. Nor did KSM mention it in his interview with Fouda, within three months of Pearl’s death. KSM also had an incentive to lie: since he is almost certain to be executed, he may have calculated that confessing to Pearl’s murder could help free militants jailed in Pakistan for their role in the journalist’s kidnapping and death.
The U.S. government has belatedly realized that the CIA’s treatment of KSM could seriously jeopardize the trial of the man who planned the largest mass murder in American history. According to the Washington Post, FBI and military interrogators known as the “Clean Team” have been independently collecting the same information from KSM and other al-Qaeda members that they gave to the CIA, this time using standard rapport-building techniques. (These techniques were also successful in securing a detailed confession from Saddam Hussein.) Still, legal experts have questioned whether the new interrogations can entirely remove the taint of the CIA’s coerced confessions.
Since 2006, the CIA has prohibited its operatives from waterboarding, following a Supreme Court decision requiring the administration to respect the Geneva Conventions ban on “humiliating and degrading treatment” of prisoners. In February, Congress passed a law banning the CIA from using some harsh interrogation techniques, including waterboarding. But loopholes remain, and while they do, this chapter of American history is not yet closed. The new president should formally declare in 2009 that the United States will not abuse or coerce detainees, maintain secret prisons where “ghost” prisoners are secreted, or perform “extraordinary renditions” of supposed terrorists to countries where they will likely be tortured. Only then can the United States more plausibly claim that she is the leader of the free world.