What did Abu Zubaydah know and when did he know it?

I.

But first, like, what do we know?

We know now - from the information provided at the hearing of December 21, 2007 before U.S. District Judge Henry H. Kennedy - that Abu Zubaydah and Abd al-Rahim al-Nashiri are now officialy acknowledged as the two Al Qaeda operatives being interrogated (and most probably waterboarded) on those now infamous and infamously destroyed CIA videotapes. We know that they were interrogated in 2002, and that the tapes were destroyed some time in 2005. We know that this at least 'against the intent' (though was it technically illegal?) of formal requests from the September 11, Commission, (appointed by both President Bush and Congress). We know that federal judicial orders were issued in the case of Zacarias Mousaoui as well as a case involving the 16 prisoners at Guantanamo Bay by the same above Judge - U.S. District Court Judge Henry H. Kennedy - in 2005 "ordering the Administration to safeguard all evidence and information regarding the torture, mistreatment and abuse of detainees at the United States Naval Base at Guantanamo Bay.". But the catch being of course that these guys weren't at Guantanamo Bay between 2002 and 2005.

We know that those tapes were ordered destroyed - via secret cable - by the CIA's then Director of Operations Jose A. Rodriguez Jr. Rodriguez says that he received legal guidance from two agency lawyers - Steven Hermes and Robert Eatinger. He even says that this legal guidance from these lawyers was written. But as far as I know this 'written legal guidance' has not been made public, and Hermes and Eatinger have not been made available for comment. There have been comments by unnamed officials asserting that the two lawyers informed the top CIA lawyer - John Rizzo - of their advice, but that Rodriguez Jr. did not inform either Rizzo or then CIA Director Porter Goss before he sent the cable to destroy the tapes. Rodriguez Jr.has now retained the services of big time Washington lawyer Robert Bennett who has subsequently stated publicly that Rodriguez Jr. "had a green light to destroy them.". The tapes, that is.

From the IHT:

"Until their destruction the tapes were stored in a safe in the CIA station in the country (possibly Thailand or Afghanistan or on the Indian Ocean isalnd of Diego Garcia) where the interrogations took place, current and former officials said. According to one former senior intelligence official, the tapes were never sent back to CIA headquarters, despite what the official described as concern about keeping such highly classified material overseas.".

It has been reported in the New York Times that between 2003 to 2005 at least four top White House lawyers 'took part in discussions with the CIA about whether or not to destroy the videotapes': former Attorney General Alberto Gonzales "who served as White House counsel until early 2005; David S. Addington who was the counsel to Vice President Dick Cheney is now his Chief of Staff; John B. Bellinger III who until January 2005 was the senior lawyer at the National Security Council; and Harriet E. Miers who succeeded Gonzales as White House counsel.". But there are many conflicting reports as to the nature of their discussions and who was for it while who was against it etc, and as far as I know none of these people has said anything publicly about this case. The notorious Addington, often referred to as "Cheney's Cheney" (delightful), has a well known policy of never talking to the press.

From this article in Newsweek:

In the summer of 2005, then CIA director Porter Goss met with then national intelligence director John Negroponte to discuss a highly sensitive matter: what to do about the existence of videotapes documenting the use of controversial interrogation methods, apparently includ­ing waterboarding, on two key Al Qaeda suspects. The tapes were eventually de­stroyed, and congressional investigators are now trying to piece together an extensive paper trail documenting how and why it happened.

One crucial document they'll surely want to examine: a memo written after the meeting between Goss and Negroponte, which records that Negroponte strongly advised against destroying the tapes, according to two people close to the investigation, who asked for anonymity when discussing a sensitive matter. The memo is so far the only known documentation that a senior intel official warned that the tapes should not be destroyed.

It is unknown whether Rodriguez knew about Negroponte's position. Goss believed he had an "un­derstanding" with Clandestine Services that the tapes were to be preserved and was dis­mayed to learn that they had been destroyed, according to a source familiar with his views.

President George Bush has publicly insisted that he did not even know of the tape's existence until he is Director of Intelligence Michael Hayden told him about their destruction sometime during the first week of December when this whole story was about to break.

Both Congress and the Justice Department have now launched Inquiries which will surely heat up on the new year.

That almost covers it. But before we go any further, I think perhaps the next best question to ask is:

Who is Abu Zubaydah?

Because other than a vague notion that he was the first major Al Qaeda figure captured by the Americans post-September 11th I have to confess that when all of this started to break I didn't really know that much about him. And has often become my habit in these situations, these days, with regards to these shadowy 'Islamist Terrorist' figures whose actions, collective knowledge,motivations and lives provide much of the justification for so much American and international public policy in this area, these days - I went and checked him out on Wikipedia. Why do I do this? Because Wikipedia claims to be a process where anyone can contribute in the search for the 'encyclopedic facts' on whatever subject at hand. And that whatever is untrue gets eventually thrown. So if there is something vague, or in dispute, I figure that in the world of Wikipedia, through the course of a process of natural selection, peer-review, of 'information survival of the fittest' so to speak, the truth will, or as much as we know of it, out itself. In Wikipedia I know that there are people out there who are striving to find out the truth of something for no other reason than the thing itself. Or at least that's the idea. (Although if you're like Steven Colbert and feel that 'reality has a well-know liberal bias', I suppose you could always turn to Conservapedia.)

Anyways, that's my process, these days, for what its worth, and when it comes to Abu Zubayda here's what comes up - first paragraph:

Abu Zubayda:

Abu Zubaydah (born 12 March 1971) (Arabic: ابو زبيدة) was, according to American authorities, a high-ranking member of al-Qaida and close associate of Osama bin Laden, though there are doubts of his power and connections due to the fact that most information came from interrogations where Zubaydah may have exaggerated his and al-Qaida's role in international terror. He is currently in U.S. custody in Guantanamo Bay, Cuba. Zubaydah's name is often transliterated as Abu Zubaidah, Abu Zubeida, or Abu Zoubeida. Born Zein al-Abideen Mohamed Hussein (Arabic: زين العابدين محمد حسين), he is also known by over thirty-five aliases.

Remember that first sentence because we are going to come back to it.

The article goes on to talk about Abu Zubayda and how he was born in Saudi Arabia and how he played a 'leading role' in many of the Al Qaeda attacks pre-9-11, how he became Al Qaeda's 'top military strategist after the death of Muhammed Atef ' according to the U.S. Government, and how was later captured in a 'firefight' in Faisalabad, Pakistan on March 28, 2002 after being shot three times and wounded in the groin and the leg. (Interesting however, is the fact that there is no mention as to the other party in this 'firefight', whether or not it was American forces or Pakistani). He 'was (then) treated by the CIA' for these wounds before being transferred into the CIA prison system and 'relocated to Thailand'. And he has now, since 2006, been transferred to Guantanamo Bay. He is considered "the 'highest ranking' Al Queda leader/member in U.S. custody".

Its certainly an enlightening read, as you can find out for yourself. But the central importance of Abu Zubayda, these days, or so we're told, officially, as constantly asserted by the American government is his significance as a source of information for the United States on Al Qaeda; particularly as the man who essentially gave up Ramzi Binalshibh but most importantly he is the man who gave up, Kalid Shiekh Mohammed - who is often called the "mastermind" behind the 9-11 attacks. Both of these guys are now currently in custody at Guantonamo Bay, alongside Zubaydah.

So thus Abu Zubaydah is considered the "authoritative source" And it's an official story that George Bush subsequently sanctified in a major speech (also quoted in this same Wikipedia article) on September 6, 2006 announcing the establishment of the Military Commissions to try suspected terrorists:

Within months of September the 11th, 2001, we captured a man known as Abu Zubaydah. We believe that Zubaydah was a senior terrorist leader and a trusted associate of Osama bin Laden. Our intelligence community believes he had run a terrorist camp in Afghanistan where some of the 9/11 hijackers trained, and that he helped smuggle al Qaeda leaders out of Afghanistan after coalition forces arrived to liberate that country. Zubaydah was severely wounded during the firefight that brought him into custody -- and he survived only because of the medical care arranged by the CIA.

After he recovered, Zubaydah was defiant and evasive. He declared his hatred of America. During questioning, he at first disclosed what he thought was nominal information -- and then stopped all cooperation. Well, in fact, the "nominal" information he gave us turned out to be quite important. For example, Zubaydah disclosed Khalid Sheikh Mohammed -- or KSM -- was the mastermind behind the 9/11 attacks, and used the alias "Muktar." This was a vital piece of the puzzle that helped our intelligence community pursue KSM. Abu Zubaydah also provided information that helped stop a terrorist attack being planned for inside the United States -- an attack about which we had no previous information. Zubaydah told us that al Qaeda operatives were planning to launch an attack in the U.S., and provided physical descriptions of the operatives and information on their general location. Based on the information he provided, the operatives were detained -- one while traveling to the United States.

We knew that Zubaydah had more information that could save innocent lives, but he stopped talking. As his questioning proceeded, it became clear that he had received training on how to resist interrogation. And so the CIA 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 Department of Justice reviewed the authorized methods extensively and determined them to be lawful. I cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning, and to keep information from us that we need to prevent new attacks on our country. But I can say the procedures were tough, and they were safe, and lawful, and necessary.

Zubaydah was questioned using these procedures, and soon he began to provide information on key al Qaeda operatives, including information that helped us find and capture more of those responsible for the attacks on September the 11th. For example, Zubaydah identified one of KSM's accomplices in the 9/11 attacks -- a terrorist named Ramzi bin al Shibh. The information Zubaydah provided helped lead to the capture of bin al Shibh. And together these two terrorists provided information that helped in the planning and execution of the operation that captured Khalid Sheikh Mohammed.[6]

But here we are, today. And the question remains - why were the tapes destroyed?

I am not sure of the exact legalities involved but I do know that when it comes to some if not most judicial orders and/or subpoenas in the United States with regards to material that the American government does not want aired in a court of law they can always claim 'national security' and/or 'executive privilege' and that can be that. The material is thus decreed to be essentially off-limits. This is exactly what happened in the incredibly controversial case of ex-NFL player turned Army Ranger Pat Tillman, for example. Pat Tillman was shot in the head three times while on duty in Afghanistan and the government is in turn caught lying about the cause and the nature of his death three times, including at the guy's actual funeral, and then just as the truth is about to come out as to why exactly the government did this Bush declares that the essential material is off-limits because of Executive Privilege and the whole process grinds to a halt, despite the wishes of the grieving Tillman family themselves. (I'll try and blog about this some time. Its pretty unbelievable.)

Originally the CIA said that the tapes were destroyed because they 'posed a serious security risk' which could open up the possibility of 'retaliation from Al Qaeda' against not only the agents who had been doing the torturing - excuse me, interrogating, er ... um, questioning, but also 'to their families'. But this has never been been credible. As former CIA officer Larry Johnson has written "I think when the truth comes out we are likely to discover that the people doing the torturing we're contractors and not undercover agents.".

And then there is this story that came out in the NYT on December 30:

If Abu Zubaydah, a senior operative of Al Qaeda, died in American hands, Central Intelligence Agency officers pursuing the terrorist group knew that much of the world would believe they had killed him.

So in the spring of 2002, even as the intelligence officers flew in a surgeon from Johns Hopkins Hospital to treat Abu Zubaydah, who had been shot three times during his capture in Pakistan, they set up video cameras to record his every moment: asleep in his cell, having his bandages changed, being interrogated.

In fact, current and former intelligence officials say, the agency’s every action in the prolonged drama of the interrogation videotapes was prompted in part by worry about how its conduct might be perceived — by Congress, by prosecutors, by the American public and by Muslims worldwide.

That worry drove the decision to begin taping interrogations — and to stop taping just months later, after the treatment of prisoners began to include waterboarding. And it fueled the nearly three-year campaign by the agency’s clandestine service for permission to destroy the tapes, culminating in a November 2005 destruction order from the service’s director, Jose A. Rodriguez Jr.

Now, the disclosure of the tapes and their destruction in 2005 have become just the public spectacle the agency had sought to avoid. To the already fierce controversy over whether the Bush administration authorized torture has been added the specter of a cover-up.

This sure sounds a lot more plausible, but it also means that the CIA has been caught at least once lying in public as to why the tapes were destroyed. (Not unlike this, from an unrelated case.)

And I hate to add to 'the specter of cover-up', I really do (because I really think they're paying close attention to what I have to say) but I think there are two other issues here entirely, as others have pointed out.

The first is the perception management danger of the image and/or video of Abu Zabaydah being waterboarded by the CIA somehow ever making it out to the public. God forbid the viral effect that that might have on Youtube. It would be another absolutely colossal public relations disaster for the United States in this post-Abu Ghraib world. Worse, actually, than Abu Ghraib.

But the other issue is even larger. It was alluded to in that first paragraph of the Wikipedia article on Abu Zubaydah and it is absolutely crucial.

And that issue is how can we trust that Abu Zubaydah actually said what the U.S. government says he said? And then beyond that , how credible and truthful were his actual statements?

Because whatever he did actually say - is on those tapes.

They are the Rosetta Stone for so much of post-911 American policy. Or as they like to say in the CIA: They are the new family jewels.

Almost immediately after the 'destruction of the CIA tapes' scandal broke, a now retired former CIA agent who was "involved" in the handling of Abu Zubaydah - John Kiriakou - went public with what he knew about the entire episode:

In the first public comment by any CIA officer involved in handling high-value al Qaeda targets, John Kiriakou, now retired, said the technique broke Zubaydah in less than 35 seconds.

"The next day, he told his interrogator that Allah had visited him in his cell during the night and told him to cooperate," said Kiriakou in an interview to be broadcast tonight on ABC News' "World News With Charles Gibson" and "Nightline."

"From that day on, he answered every question," Kiriakou said. "The threat information he provided disrupted a number of attacks, maybe dozens of attacks."

Kiriakou said the feeling in the months after the 9/11 attacks was that interrogators did not have the time to delve into the agency's bag of other interrogation tricks.

"Those tricks of the trade require a great deal of time -- much of the time -- and we didn't have that luxury. We were afraid that there was another major attack coming," he said.

Kiriakou says he did not know that the interrogation of Zubaydah was being secretly recorded by the CIA and had no idea the tapes had been destroyed.

Now retired, Kiriakou, who declined to use the enhanced interrogation techniques, says he has come to believe that water boarding is torture but that perhaps the circumstances warranted it.

"Like a lot of Americans, I'm involved in this internal, intellectual battle with myself weighing the idea that waterboarding may be torture versus the quality of information that we often get after using the waterboarding technique," Kiriakou told ABC News. "And I struggle with it."

But he says the urgency in the wake of 9/ll led to a desire to do everything possible to get actionable intelligence.

That began with Abu Zubaydah's capture following a series of raids in which Kiriakou co-led a team of CIA officers, FBI agents, a Port Authority police officer named Tom McHale and Pakistani police, including a SWAT team.

And, in the case of Abu Zubayda, it ended with waterboarding.

This version of the truth however, has been disputed by none other than the FBI. From a December 18 article in the Washington Post:

Al-Qaeda captive Abu Zubaida, whose interrogation videotapes were destroyed by the CIA, remains the subject of a dispute between FBI and CIA officials over his significance as a terrorism suspect and whether his most important revelations came from traditional interrogations or from torture.

While CIA officials have described him as an important insider whose disclosures under intense pressure saved lives, some FBI agents and analysts say he is largely a loudmouthed and mentally troubled hotelier whose credibility dropped as the CIA subjected him to a simulated drowning technique known as waterboarding and to other "enhanced interrogation" measures.

The question of whether Abu Zubaida -- whose real name is Zayn al-Abidin Muhammed Hussein -- was an unstable source who provided limited intelligence under gentle questioning, or a hardened terrorist who cracked under extremely harsh measures, goes to the heart of the current Washington debate over coercive interrogations and torture.

The House has approved legislation that would require U.S. intelligence agencies to follow Army rules adopted last year that explicitly forbid waterboarding and other harsh measures, but it has stalled in the Senate under a veto threat by President Bush.

A public assessment of Abu Zubaida's case has been complicated by the newly revealed destruction of the videotaped record of his questioning, according to congressional sources. Intelligence officials say no verbatim transcripts were made, although classified daily summaries were prepared.

Bush has sided publicly with the CIA's version of events.

This article reveals a couple of issues.

First, with regards to the initial relevancy of Abu Zubaydah's information both the CIA and the FBI seem to be in agreement that it was "valuable". The second - and where to the two agencies begin to differ - is to the value of Zubaydah's information and how it began to change after he was subjected to the 'enhanced interrogation techniques':

There is little dispute, according to officials from both agencies, that Abu Zubaida provided some valuable intelligence before CIA interrogators began to rough him up, including information that helped identify Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11 attacks, and al-Qaeda operative Jose Padilla. Footnotes in the 9/11 Commission report attribute information about a variety of al-Qaeda personnel and activities to interrogations of Abu Zubaida beginning in April 2002 and lasting through February 2004.

But FBI officials, including agents who questioned him after his capture or reviewed documents seized from his home, have concluded that even though he knew some al-Qaeda players, he provided interrogators with increasingly dubious information as the CIA's harsh treatment intensified in late 2002.

In legal papers prepared for a military hearing, Abu Zubaida himself has asserted that he told his interrogators whatever they wanted to hear to make the treatment stop.

Retired FBI agent Daniel Coleman, who led an examination of documents after Abu Zubaida's capture in early 2002 and worked on the case, said the CIA's harsh tactics cast doubt on the credibility of Abu Zubaida's information.

"I don't have confidence in anything he says, because once you go down that road, everything you say is tainted," Coleman said, referring to the harsh measures. "He was talking before they did that to him, but they didn't believe him. The problem is they didn't realize he didn't know all that much."

Abu Zubaida's captors first spoke to him in Arabic, but he began responding only when they addressed him in English, Kiriakou recalled. Abu Zubaida explained that he would not talk to infidels in what he said was "God's language," Kiriakou said.

During his first month of captivity, Abu Zubaida described an al-Qaeda associate whose physical description matched that of Padilla, leading to Padilla's arrest at O'Hare International Airport in Chicago in May 2002. A former CIA officer said in an interview that Abu Zubaida's "disclosure of Padilla was accidental." The officer added that Abu Zubaida "was talking about minor things and provided a small amount of information and a description of a person, just enough to identify him because he had just visited the U.S. Embassy" in Pakistan.

Other officials, including Bush, have said that during those early weeks -- before the interrogation turned harsh -- Abu Zubaida confirmed that Mohammed's role as the mastermind of the Sept. 11 attacks.

A rift nonetheless swiftly developed between FBI agents, who were largely pleased with the progress of the questioning, and CIA officers, who felt Abu Zubaida was holding out on them and providing disinformation. Tensions came to a head after FBI agents witnessed the use of some harsh tactics on Abu Zubaida, including keeping him naked in his cell, subjecting him to extreme cold and bombarding him with loud rock music.

"They said, 'You've got to be kidding me,' " said Coleman, recalling accounts from FBI employees who were there. " 'This guy's a Muslim. That's not going to win his confidence. Are you trying to get information out of him or just belittle him?' " Coleman helped lead the bureau's efforts against Osama bin Laden for a decade, ending in 2004.

FBI Director Robert S. Mueller III eventually ordered the FBI team to withdraw from the interrogation, largely because bureau procedures prohibit agents from being involved in such techniques, according to several officials familiar with the episode.

And then there is this from Kevin Drum's 'Political Animal blog' at WashingtonMonthly:

So what would investigators have seen if they'd had access to the tapes? One of the captured prisoners was an al-Qaeda operative named Abu Zubaydah, and it turns out we have a pretty good idea of what his tape would have shown. First, Spencer Ackerman gives us this from James Risen's State of War:

Risen charges that Tenet caved to Bush entirely on the torture of al-Qaeda detainees. After the 2002 capture of Abu Zubaydah, a bin Laden deputy, failed to yield much information due to his drowsiness from medical treatment, Bush allegedly told Tenet, "Who authorized putting him on pain medication?" Not only did Tenet get the message — brutality while questioning an enemy prisoner was no problem — but Tenet also never sought explicit White House approval for permissible interrogation techniques, contributing to what Risen speculates is an effort by senior officials "to insulate Bush and give him deniability" on torture.

And here is Barton Gellman's gloss of Ron Suskind's The One Percent Doctrine:

Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be....Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics.

[Other unrelated bungling described, all of which is worth clicking the link to read.]

Which brings us back to the unbalanced Abu Zubaydah. "I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?"

Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety — against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each...target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

So here's what the tapes would have shown: not just that we had brutally tortured an al-Qaeda operative, but that we had brutally tortured an al-Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical "confessions" under duress. This was all prompted by the president of the United States, implemented by the director of the CIA, and the end result was thousands of wasted man hours by intelligence and and law enforcement personnel.

Whoa.

So if this is the truth about the 'interrogations of Abu Zubaydah, now that is terrifying.

And it has absolutely enormous legal and political implications. As Andrew Sullivan writes:

This "is where the story becomes interesting. The Bush administration denies any illegality at all, insists it does not “torture” but refuses to say whether it believes waterboarding is torture or not. But hundreds of hours of videotape were recorded of Zubaydah’s incarceration and torture. That evidence would settle the dispute over the extremely serious question of whether the president of the United States authorised war crimes.

And now we have found out that all the tapes have been destroyed."."

He continues:

The administration has admitted that several prisoners have been killed in interrogation, and dozens more have died in the secret network of interrogation sites the US has set up across the world. The policy of rendition has sent countless suspects into torture cells in Uzbekistan, Egypt, Jordan and elsewhere to feed the West’s intelligence on jihadist terrorism.

But this case is more ominous for the administration because it presents a core example of what seems to be a cover-up, obstruction of justice and a direct connection between torture and the president, the vice-president and their closest aides.

Because several courts had pending cases in which testimony from Zubaydah’s interrogation was salient, the destruction of such evidence triggers a legal process that is hard for the executive branch to stymie or stall - and its first attempt was flatly rebuffed by a judge last week.

Its key argument is a weakly technical one: that the interrogation took place outside US territory - and therefore the courts do not have jurisdiction over it. It’s the same rationale for imprisoning hundreds of suspects at Guantanamo Bay in Cuba - a legal no man’s land. But Congress can get involved - especially if it believes that what we have here is a cover-up.

What are the odds that a legal effective interrogation of a key Al-Qaeda operative would have led many highly respected professionals in the US intelligence community to risk their careers by leaking top-secret details to the press?

What are the odds that the CIA would have sought to destroy tapes that could prove it had legally prevented serious and dangerous attacks against innocent civilians? What are the odds that a president who had never authorised waterboarding would be unable to say whether such waterboarding was torture?

What are the odds that, under congressional grilling, the new attorney-general would also refuse to say whether he believed waterboarding was illegal, if there was any doubt that the president had authorised it? The odds are beyond minimal.

Any reasonable person examining all the evidence we have - without any bias - would conclude that the overwhelming likelihood is that the president of the United States authorised illegal torture of a prisoner and that the evidence of the crime was subsequently illegally destroyed.

So this is a potential scandal that casts an incredibly wide net which connects the highest Office of American Politics to the deepest gutter of Intelligence gathering to the central activating myth of the Bush Administration - i.e. The so-called - 'War on Terror'. And all of this taking place during the heart of one the most important American political seasons in decades.

And so then what happens? The tapes are destroyed.

Go figure.

II.

But there is something else here, something that goes to the heart of the American government's offical narrative regarding the events of 9-11.

It can't possibly be - can it? - that Abu Zubaydah is the key government witness 'fingering' Kalid Sheik Mohemmad as the "principal architect of the 9/11 attacks"?

Now we know, or at least we are supposed to know, that Khalid Sheik Mohmmed is "principal architect of the 9/11 attacks" because that is what it says in 911 Commission Report. But there is something that has always bothered me (and a lot of other people apparently) about the 911 Commission Report from the time that I first read it. And now that same issue has resurfaced with the reported destruction of these CIA interrogation tapes. And that is - as it states in the report itself - the 911 Commsioners never had actual access to Abu Zubaydah or Khalid Sheik Mohemmad, they didn't even have access to the actual transcripts of the interrogations of Abu Zubaydah or Khalid Sheik Mohemmad. Instead what they were provided were reports of the interrogations of Abu Zubaydah and Khalid Sheik Mohemmad. And from the interrogations of Abu Zubaydah and Khalid Sheik Mohammed we have the official story of who was responsible for the attacks of September 11th, 2001.

In other words, its still, officially, the official story of 911 - second-hand.

Now I'm no member of the so-called "911 Truth Movement". Though I've looked into it and like a lot of people I think there are many aspects which require further investigation and explanation. But that said, I still believe that Al Qeada is responsible for the attacks on September 11, 2001. (A bold position, for sure.)

Now everybody knows that Khalid Sheik Mohammed is the uncle of Ramzi Yousef and that Ramzi Yousef was one the co-conspirators of the 1993 World Trade Center Bombing, as well as The Bojinka Plot. And the two were reportedly very close. And Khalid Sheik Mohammed is also alleged to be one of the co-conspirators of The Bojinka Plot.

But the key, absolutely crucial distinction between the two is that Ramzi Yousef was convicted in a court of law. The man was forced to stand trial and he was convicted. But he had access to a lawyer. He was availed of his full rights of Habeus Corpus. He had the right to confront his accusers.

I have often thought how great it would be, or how great it would have been for the United States, and indeed for the world, for Khalid Sheik Mohammed to have been, whatever, forced, allowed to stand trial.

Its a question I hardly ever hear asked, but I have often asked myself:

Why don't they try Khalid Sheik Mohammed in a court of law?

They have him. He's down at Guantanmo Bay. And in all probability - it's not like he didn't do it. He is most likely, overwhelmingly guilty. Hell, he'd probably even confess. Ramzi Yousef did.

But the primary reason that they can't try him, I feel - and I do believe that there is now plenty of evidence to back this up - is that he could get off.

Not because he didn't do it. But because he was tortured by the United States Government. And because one of the guys who gave him up - Abu Zubaydah - was also tortured by the United States Government. And torture is supposed to be against the law in the United States. And if you were the lawyer(s) for either Khalid Shek Mohammed or Abu Zubaydah and you didn't see that this was the case, and if you didn't make this your case, thee case, you wouldn't be doing your job.

There has always been this revered creed in the United States, this animating myth that states that basically the system will ultimately redeem itself. That it is a system of laws and that "all men are created equal" and all that. And that everyone pledges allegiance to Constitution and no one person, not even the President, is above the law.

When Nixon resigned because of the Watergate scandal it was because he had been caught trying to cover up White House involvement in the burglury at the Watergate hotel and The Senate was beginning the process of articles of Impeachement against him. Bill Clinton ws impeached by the House of Representitives and as tawdry and salacious as the case was there were not enough votes in the Senate to force him from office and thus in both cases it can be argued that not only did the system reflect the majority will of the American people but that the system, and by that I mean the Constitution prevailed. It redeemed itself. The American people could retain their faith in their founding creed.

It is why even with regards to America's original sin of slavery, over time and after a brutal Civil War, Martin Luther King could stand before the country and admonish to its very conscience by appealing to its very core:

"All we're saying is be true to what you put on paper.".

Such argument was logically and ultimately undeniable. And it was American.

And even in this circumstance, despite all that has happened and despite what most people might think, there was every indication that this basic narrative would once again prove itself capable.

In Why the Court Said No by David Cole in the August 10, 2006 NYR, Cole writes:

Since the first few days after the terrorist attacks of September 11, 2001, the Bush administration has taken the view that the President has unilateral, unchecked authority to wage a war, not only against those who attacked us on that day, but against all terrorist organizations of potentially global reach. The administration claims that the President's role as commander in chief of the armed forces grants him exclusive authority to select "the means and methods of engaging the enemy."[1] And it has interpreted that power in turn to permit the President to take actions many consider illegal.

The Justice Department has maintained that the President can order torture, notwithstanding a criminal statute and an international treaty prohibiting torture under all circumstances. President Bush has authorized the National Security Agency to conduct warrantless wiretapping of American citizens, despite a comprehensive statute that makes such surveillance a crime. He has approved the "disappearance" of al-Qaeda suspects into secret prisons where they are interrogated with tactics that include waterboarding, in which the prisoner is strapped down and made to believe he will drown. He has asserted the right to imprison indefinitely, without hearings, anyone he considers an "enemy combatant," and to try such persons for war crimes in ad hoc military tribunals lacking such essential safeguards as independent judges and the right of the accused to confront the evidence against him.

In advocating these positions, which I will collectively call "the Bush doctrine," the administration has brushed aside legal objections as mere hindrances to the ultimate goal of keeping Americans safe. It has argued that domestic criminal and constitutional law are of little concern because the President's powers as commander in chief override all such laws; that the Geneva Conventions, a set of international treaties that regulate the treatment of prisoners during war, simply do not apply to the conflict with al-Qaeda; and more broadly still, that the President has unilateral authority to defy international law.[2] In short, there is little to distinguish the current administration's view from that famously espoused by President Richard Nixon when asked to justify his authorization of illegal, warrantless wiretapping of Americans during the Vietnam War: "When the President does it, that means that it is not illegal."

If another nation's leader adopted such positions, the United States would be quick to condemn him or her for violating fundamental tenets of the rule of law, human rights, and the separation of powers. But President Bush has largely gotten away with it, at least at home, for at least three reasons. His party holds a decisive majority in Congress, making effective political checks by that branch highly unlikely. The Democratic Party has shied away from directly challenging the President for fear that it will be viewed as soft on terrorism. And the American public has for the most part offered only muted objections.

These realities make the Supreme Court's decision in Hamdan v. Rumsfeld, issued on the last day of its 2005– 2006 term, in equal parts stunning and crucial. Stunning because the Court, unlike Congress, the opposition party, or the American people, actually stood up to the President. Crucial because the Court's decision, while on the surface narrowly focused on whether the military tribunals President Bush created to try foreign suspects for war crimes were consistent with US law, marked, at a deeper level, a dramatic refutation of the administration's entire approach to the "war on terror."

At bottom, the Hamdan case stands for the proposition that the rule of law—including international law—is not subservient to the will of the executive, even during wartime. As Justice John Paul Stevens wrote in the concluding lines of his opinion for the majority:

In undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.

The notion that government must abide by law is hardly radical. Its implications for the "war on terror" are radical, however, precisely because the Bush doctrine has so fundamentally challenged that very idea.

Haven't heard of Hamdan v. Rumsfeld? Cole breaks it down:

Salim Hamdan, a citizen of Yemen, has been held at Guantánamo Bay since June 2002. He is one of only fourteen men at Guantánamo who have been designated by the administration to be tried for war crimes—the remaining 440 or so have never been charged with any criminal conduct. Hamdan was charged with conspiracy to commit war crimes by serving as Osama bin Laden's driver and bodyguard, and by attending an al-Qaeda training camp.

The tribunal set up to try Hamdan was created by an executive order issued in November 2001. Its rules are draconian. They permit defendants to be tried and convicted on the basis of evidence that neither they nor their chosen civilian lawyers have any chance to see or rebut. They allow the use of hearsay evidence, which similarly deprives the defendant of an opportunity to cross-examine his accuser. They exclude information obtained by torture, but permit testimony coerced by any means short of torture. They deny the defendant the right to be present at all phases of his own trial. They empower the secretary of defense or his subordinate to intervene in the trial and decide central issues in the case instead of the presiding judge. And finally, the rules are predicated on a double standard, since these procedures apply only to foreign nationals accused of acts of terrorism, not US citizens.

Hamdan's lawyers challenged the legality of the military tribunals in federal court before his trial had even begun, arguing that the President lacked authority to create the tribunals in the first place, and that the tribunals' structure and procedures violated the Constitution, US military law, and the Geneva Conventions.

To say that Hamdan faced an uphill battle is a gross understatement. The Supreme Court has said in the past that foreign nationals who are outside US borders, like Hamdan, lack any constitutional protections. Hamdan was a member of the enemy forces when he was captured, and courts are especially reluctant to interfere with the military's treatment of "enemy aliens" in wartime. He filed his suit before trial, and courts generally prefer to wait until a trial is completed before assessing its legality. And as recently as World War II, the Supreme Court upheld the use of military tribunals, and ruled that the Geneva Conventions are not enforceable by individuals in US courts but may be enforced only through diplomatic means.

Surprisingly, Hamdan prevailed in the district court, when US District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions. Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts. And as if Hamdan did not face enough hurdles, after the Supreme Court agreed to hear his case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to hear the case. The Detainee Treatment Act of 2005 required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review.

In its arguments to the Supreme Court, the administration invoked the Bush doctrine. It argued that the President has "inherent authority to convene military commissions to try and punish captured enemy combatants in wartime," even without congressional authorization, and that therefore the Court should be extremely hesitant to find that Bush's actions violated the law.[3] And it insisted that in declaring that the Geneva Conventions did not apply to al-Qaeda Bush had exercised his constitutional war powers, and his decision was therefore "binding on the courts."[4]

The Supreme Court, by a vote of 5–3, rejected the President's contentions. (Chief Justice Roberts did not participate, since it was his own decision that was under review.) The Court's principal opinion was written by its senior justice, John Paul Stevens, a World War II veteran, and the only justice who has served in the military. He was joined in full by Justices Ginsburg, Souter, and Breyer, and in the main by Justice Kennedy. Kennedy also wrote a separate concurring opinion, and because he provided the crucial fifth vote, his views may prove more significant in the long run.[5]

The Court found, first, that the administration's procedures for military tribunals deviated significantly from the court-martial procedures used to try members of our own armed forces, and that the Uniform Code of Military Justice barred such deviations unless it could be shown that court-martial procedures would be "impracticable." The administration made no such showing, the Court observed, and therefore the tribunals violated the limit set by Congress in the Uniform Code. The Court could well have stopped there. This conclusion was a fully sufficient rationale to rule for Hamdan and invalidate the tribunals. Had it done so, the decision would have been far less consequential, since Congress could easily have changed its law or declared that court-martial procedures are impracticable.

But the Court went on to find that Congress had also required military tribunals to conform to the law of war, and that the tribunals impermissibly violated a particular law of war—Common Article 3 of the Geneva Conventions, which requires that detainees be tried by a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

Common Article 3 is denominated "common" because it appears in each of the four Geneva Conventions. It sets forth the basic human rights that apply to all persons detained in conflicts "not of an international character." The administration has long argued that because the struggle with al-Qaeda is international, not domestic, Common Article 3 does not apply. The Court rejected that view, explaining that the phrase "not of an international character" was meant in its literal sense, to cover all conflicts not between nations, or "inter-national" in character. (Conflicts between nations are covered by other provisions of the Geneva Conventions.) Since the war with al-Qaeda is a conflict between a nation and a nonstate force, the Court ruled, it is "not of an international character," and Common Article 3 applies.

The Bush administration devoted much of its brief to arguing that the Geneva Conventions are not enforceable by individuals in US courts, and Hamdan's lawyers devoted equal space to arguing the opposite. The Court, however, neatly sidestepped that question, finding that it need not decide it because Congress had incorporated the Geneva Conventions into US law when it required that military tribunals adhere to the "law of war."

The fact that the Court decided the case at all in the face of Congress's efforts to strip the Court of jurisdiction is remarkable in itself. That the Court then broke away from its history of judicial deference to security claims in wartime to rule against the President, not even pausing at the argument that the decisions of the commander in chief are "binding on the courts," suggests just how troubled the Court's majority was by the President's assertion of unilateral executive power. That the Court relied so centrally on international law in its reasoning, however, is what makes the decision truly momentous.

But that was two years ago, and since then we have had the Military Commissions Act of 2006 (with 12 Deomcrats in the Senate and 32 in the House voting AYE, and 1 Republican in the Senate and 7 in the House voting NAY) which basically legalized, legislated, made the Military Commssions an article of law. And the man who originaly reversed the Hamdan decision in the Court of Appeals for the D.C. Circuit, Justice John Roberts is now the Chief Justice of the United States.

But that was two years ago, and that was when the tapes were destoyed.

FURTHERMORE:

The beautiful Naomi Wolfe weighs in.

The Justice Department Inquiry has now been elevated into a criminal investigation.