Why the Gitmo Cases Are in Disarray

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Rodrigo Abd / AP

A detainee walks in Camp 4 at Guantanamo Bay U.S. Naval Base.

Mohammed al-Qahtani, reputedly one of the most dangerous prisoners held at Guantanamo and one of six to who might have faced the death penalty for alleged participation in the 9/11 plot, has just had charges against him dropped by the top legal authority at the base. The charges were dismissed without formal explanation by so-called Convening Authority Susan J. Crawford — who has complete discretion over the specific charges Guantanamo inmates would face at trial. Brig. Gen. Tom Hartmann, the Authority's senior legal advisor, told TIME that the dismissal offered evidence of the "strength of the system and the careful, deliberative and fair legal process in place at Guantanamo."

Qahtani's notoriety stems from his part in the 9/11 saga: he had flown into Orlando airport from Europe in August 2001 and was refused entry to the U.S. The U.S. later determined that 9/11 ringleader Mohammad Atta had been waiting to pick him up in a rental car at Orlando airport. In short, he was believed to have been the 20th of the 9/11 hijackers. Qahtani was captured in Afghanistan in December 2001.

The charges were dismissed without prejudice, meaning that a prosecutor could reinstate them at any time. But few observers expect that to happen, largely because Qahtani underwent protracted torture and the threat of torture during his interrogation at Guantanamo, a process that tainted his confessions as well as the evidence he gave against other prisoners.

The surprising decision to drop charges against Qahtani is the latest setback for a military justice system at Guantanamo that appears to be in growing disarray. After holding prisoners for years without trial, the Bush Administration has made clear it wants to put captives in the dock, specifically six high-value prisoners that included Qahtani as well as alleged 9/11 mastermind Khalid Sheik Mohammed. All told, five cases at Guantanamo are awaiting trial, with the first, that of Osama bin Laden's driver, scheduled to begin June 2.

After his arrival at Guantanamo, Qahtani's interrogation was personally authorized by then Secretary of Defense Donald Rumsfeld. An account of his questioning, catalogued in a then-top-secret, 84-page log, was published as a cover story by TIME in June 2005.

A 2005 military investigation concluded Qahtani had been subject to abuse — which included sexual humiliation, religious humiliation, intimidation by dogs, prolonged isolation and extremes of cold that, at one point, caused his pulse to drop to 35 beats per minute, requiring immediate hospitalization. No one was ever punished for having ordered the abuse or carrying it out. "The dismissal of charges clearly indicates the government's awareness that any and all statements obtained from Mohammad Qahtani were extracted by torture or the threat of torture," Gitanjali Guitierrez, his lawyer with the Center for Constitutional Rights, told TIME.

The only time Qahtani has spoken publicly, following a military legal review of his case in 2006, he made clear that all of his statements concerning himself or others were obtained by torture, or the threat of torture. Other prisoners at Guantanamo have made similar claims. But in an apparent attempt to elicit compromising information from them that would not be tainted by torture, the government has requestioned many of them using less coercive techniques, supposedly making their new statements admissible in court. Unlike those prisoners, however, Qahtani's lawyers say he has not been requestioned. The U.S. has also admitted that other prisoners, including alleged 9/11 mastermind Khalid Sheik Mohammad, have faced questioning techniques like waterboarding that are considered torture, but these have been inflicted by CIA teams in secret overseas prisons. Military courts overseeing Guantanamo have indicated they cannot compel evidence from U.S. intelligence agencies.

In Qahtani's case, however, his lawyers say he was questioned exclusively at Guantanamo and that the U.S. military is in possession of all his interrogation records, which could be produced as evidence of torture. To avoid that, his lawyers say the U.S. will have to stick with its decision not to charge him at all. Guitierrez, who saw her client in Cuba a little more than a week ago and plans to return next week, suggests that the only solution may be to transfer Qahtani to his native Saudi Arabia, which has accepted the repatriation of other nationals who had been held at Guantanamo. She describes Qahtani today as a "broken man, broken by torture." Though he is now permitted to mingle occasionally with other prisoners, she says that his condition has steadily deteriorated due to the mistreatment and isolation. "I am extremely concerned about his ability to survive mentally and physically for much longer in Guantanamo," she says.

Meanwhile, in a sign of more disarray in the U.S. prosecution of Guantanamo inmates, a military judge last week barred Brig. Gen. Tom Hartmann, top legal adviser to the Convening Authority, from involvement in a prominent case at the prison. Hartmann had been described by one U.S. military witness as demanding "sexy" cases to try, "with blood on them." In an interview, Hartmann told TIME he "never had the conversation" described under oath by the military witness. Nevertheless, the judge ruled that Hartmann's statements had overstepped the bounds of neutrality required of his official role, a ruling that could limit Hartmann's oversight in other Guantanamo cases as well. The judicial rebuke was a significant embarrassment for the Pentagon and Hartmann personally. The normally outspoken general said he planned to keep doing his job and offered no comment when asked if his career had been damaged or whether he might soon face removal or would voluntarily resign.