THE AL QAHTANI DEBACLE

by Philippe Sands

Over the past five years the name Mohammed Al-Qahtani - Detainee 063 at Guantanamo - has been indelibly associated with the Bush Administration's efforts to justify extreme measures in the 'war on terror.' This Saudi national was apprehended in Afghanistan in late 2001 and taken to Guantanamo in early 2002, included in a group labelled as the "worst of the worst." His identity got a full airing in June 2004, as the Administration struggled to contain the fallout from the Abu Ghraib pictures. Alleged to be the 20th hijacker, the Administration pinned on this man its justification for the abandonment of a longstanding prohibition on the use of cruelty by the military.

On June 22nd 2004, two of the Administration's most senior lawyers - White House Counsel Alberto Gonzales and Defense Department General Counsel Jim Haynes - stood before the world's media and laid out the official story to explain the move to aggressive interrogation: it occurred as a result of a bottom-up request from an aggressive combatant commander at Guantanamo; it was implemented within the law and on the basis of careful legal advice; and it produced useful and important results. Al Qahtani was living proof that coercion worked. Gonzales and Haynes stood alongside Daniel Dell'Orto (who has recently been appointed as Acting General Counsel at DoD, following Haynes' move to Chevron, where he now works as lawyer) as he introduced Al Qahtani as the man who explained the move to abuse: a person in whom the Pentagon had "a considerable interest," who had "been trained to resist our interrogation techniques" and, most significantly, who gave up important information when subjected to new techniques authorised by Rumsfeld on December 2nd 2002. This included information on Jose Padilla (the alleged "dirty bomber") and Richard Reid (the shoe bomber). The message was unambiguous: Al Qahtani was a bad man, aggressive interrogation works.

A few weeks later, the 9/11 Commission Report described Al Qahtani as a "candidate hijacker," explaining the circumstances in which he was denied entry to the US in August 2001. The narrative persisted, and Al Qahtani's name was frequently wheeled out in defence of the Administration's actions. In his efforts to secure appointment to the federal bench, in July 2006 Jim Haynes relied on him to fend off attacks - unsuccessfully, as it turned out - to justify his role in recommending to Secretary Rumsfeld techniques of interrogation that violated Common Article 3 of the Geneva Conventions. He was "the 20th hijacker," Haynes told the Senate Judiciary Committee and a man who had shown "considerable skill in resisting established techniques". Further, he had provided "significant additional information" as a result of the abusive interrogation. No ambiguity there.

A few weeks ago, on February 11th 2008, the Department of Defense announced that Al Qahtani would join five others in facing a military commission on various criminal charges, including murder, attacking civilians and terrorism. The death penalty would be sought. The allegations were thin on detail and - strikingly - made no reference to any information obtained after the new techniques were used. The announcement was consistent with what, by then, I had already been told: the abusive interrogation of Al Qahtani produced nothing of value.

The Administration raised the stakes on Al Qahtani. He was presented as the kind of uniquely dangerous person for whom the programme of detention and interrogation was designed, proof that the established rules were quaint and obsolete, that new rules and techniques were needed, and that they worked.

Then, earlier this week, the Administration dropped a jaw-dropping bombshell: the charges against Al Qahtani were dropped. Proceedings against five other would continue, but the Pentagon official in charge of war crimes cases declined to authorise charges against Al Qahtani. What happened?

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