By Josh White and Julie Tate
Washington Post Staff Writers
Wednesday, May 14, 2008
U.S. authorities have long considered Mohammed al-Qahtani one of the most dangerous alleged terrorists in U.S. custody, a man who could have been the 20th hijacker in the Sept. 11, 2001, plot if he had not been denied entry into the country.
But yesterday, amid concerns about using information obtained during abusive military interrogations, a top Pentagon official removed Qahtani from the military commission case meant to bring justice to those behind the vast Sept. 11 conspiracy.
Susan J. Crawford, the appointed official who decides which cases will be heard in the largely untested commission process, dismissed the charges against Qahtani while affirming those against five other alleged terrorists to stand trial at the U.S. detention facility at Guantanamo Bay, Cuba.
Prosecutors reserve the right to charge Qahtani again, and the military says it can hold him without trial for the duration of the counterterrorism wars. But his defense lawyers and officials familiar with the case say it is unlikely that Qahtani will face new charges because he was subjected to aggressive Defense Department interrogation techniques -- such as intimidation by dogs, hooding, nudity, long-term isolation and stress positions.
Those techniques were later rescinded because of concerns about their legality. In 2005, an official military investigation concluded that Qahtani's interrogation regimen amounted to abuse.
Officials close to the case said Crawford's office was reluctant to sanction the charges against Qahtani because prosecutors had little evidence against him outside of his own coerced confessions, a point that most certainly would have become a central issue at trial.
"Their case was only based on evidence derived from torture," said Army Lt. Col. Bryan Broyles, who represents Qahtani. "In six-plus years, the evidence comes down to what they beat out of him. The prosecution evidence was entirely unreliable and inadmissible."
Crawford has not commented publicly since taking over as the top official for military commissions, and a Pentagon spokesman said yesterday she has not explained her decision. Officials close to the case said the office's top legal adviser, Air Force Brig. Gen. Thomas W. Hartmann, concluded in an analysis that Qahtani's case was too weak to prosecute.
"Decisions relating to joining several accused are based upon such factors as the nature of the offenses, the evidence and applicable rules of procedure," said Navy Cmdr. J.D. Gordon, a Pentagon spokesman.
"My guess is that they will never charge him at all," said Charles D. "Cully" Stimson, a lawyer with the Heritage Foundation and former deputy assistant secretary of defense for detainee affairs. "It may be next to impossible to prove a case against him without what came out of his mouth."
From the outset, Qahtani's case appeared to be an odd companion to the co-conspirator trial, as the other cases involve detainees -- such as alleged mastermind Khalid Sheik Mohammed -- held by the CIA, and they involve high-level allegations of conspiracy to commit the attacks, including financing, running al-Qaeda training camps and helping the hijackers carry out the plot. Qahtani is alleged to be a field operative.
Human rights organizations have been warning that harsh treatment of detainees would come back to haunt the U.S. government.
"Statements obtained using interrogation techniques explicitly approved by then-Secretary of Defense Donald Rumsfeld are so tainted by torture that the current Pentagon has determined that they cannot be used, even in military commissions which allow the use of certain evidence obtained through abuse," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch.
Although some of the other five detainees were subjected to harsh interrogations by the CIA, the military organized a coordinated effort to re-interview them after they arrived at Guantanamo Bay in September 2006, using rapport-building methods. The results yielded incriminating evidence, officials said. But the same "clean teams" were not successful with Qahtani.
"Qahtani has never made a statement that was not extracted without torture," said Vincent Warren, executive director of the Center for Constitutional Rights, which also represents Qahtani.
The charges approved against the alleged co-conspirators detail 169 overt acts in support of the Sept. 11 attacks, including murder, attacking civilians, attacking civilian objects, terrorism and providing material support for terrorism. Barring a continuance, the five suspects should appear in a Guantanamo Bay courtroom within the next month for an arraignment, but those involved in the cases say a joint trial is unlikely to begin before next year.
One issue that could further complicate the Sept. 11 case is the disqualification of Hartmann by a judge in another military commission because of alleged bias in favor of the prosecution. Hartmann has been deeply involved in the conspiracy case, also.
But Stimson said that "anytime Hartmann touches something, you're giving the defense an opportunity to tee up the unlawful command influence issue."