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?

No explanation was given for the abrupt change of direction. That in itself is telling. There is no plausible reason that can be sold or spun. For the truth is that Al Qahtani was subject to abuse that most likely rises to the level of torture, in circumstances that are notoriously public around the world. From November 23rd, 2002, over a period of fifty four days, Al Qahtani was subject to aggressive interrogation at the instance of the highest echelons of the Administration. I describe the circumstances in TORTURE TEAM, and in an article published in VANITY FAIR last month, explaining how Donald Rumsfeld and his team came to be involved. On December 2nd 2002 Rumsfeld signed a memo prepared for him by Jim Haynes, authorising the use of new techniques. It is a famous memo, the one in which Rumsfeld inquires, in his own hand, as to why standing during interrogation is limited to four hours since he stands for eight or more hours a day.

I journeyed around America, meeting many of the principal characters involved in the decision-making process. I describe the real reason why the Geneva Conventions were set aside, as Doug Feith confirmed, to allow aggressive interrogation; how Al Qahtani’s treatment amounted to a war crime (a point alluded to by Justice Anthony Kennedy in the Supreme Court’s seminal judgment of 2006 that overturned the Administration’s decision to set aside the Geneva Conventions); how the decision to move to aggressive interrogation came from the top down and not, as the Administration had claimed, from the ground up; how decision-making at the Joint Chiefs was short-circuited by Haynes; how those at the top may face war crimes investigations abroad, unless the US gets its house in order; and how Al Qahtani’s interrogation provided no meaningful information.

Against this background, the House Judiciary Committee has recently embarked on a series of hearings to examine the role of senior Administration lawyers in promoting aggressive interrogations. Last week I testified before a Sub-Committee, with three other witnesses, and the Sub-Committee has now invited senior lawyers to appear before it. Most have agreed to do so voluntarily (although not David Addington, who was Vice President Cheney’s counsel back in 2002 and now serves as his chief of staff: he has been issued with a subpoena to force him to appear). The next hearing is scheduled for June 26, and more are expected to follow in efforts to get to the truth. The treatment of Al Qahtani lies at the heart of the Committee’s inquiry.

It is a grim story, of decision-making driven by fear and ideology and incompetence, a story of crime and of cover-up. It seems likely that the charges against him were dropped because proceedings before a military commission would have turned the spotlight on his treatment and - even more dangerously - on those most senior individuals - politicians and political appointees - with whom responsibility lies. The abuse of Al Qahtani has backfired, as many down at Guantanamo predicted it would. The truth as to his involvement, if any, in the events of September 11th will not be established. He will no doubt linger in a limbo of legal uncertainty in the bowels of Guantanamo or whatever other place may be found for him, a totemic figure whose treatment will be invoked by those who seek to harm the United States.

This unhappy story has brought America’s fine tradition of military valour into disrepute. It has provided no added protection to this country, or any other, or any other advantages. To the contrary, it will serve to inflame public opinion abroad, and undermine the very objective of national security that was sought, making it more difficult to respond to the real threat of international terrorism. If the House Judiciary Committee does nothing else, it must move to establish the facts, to identify those who are responsible for this mess, to make sure lessons are learnt so it doesn’t happen again. The lesson of torture is clear. It does not work.

Philippe Sands is a barrister and professor of law at University College London. He is author of TORTURE TEAM: THE RUMSFELD MEMO AND THE BETRAYAL OF AMERICAN VALUES (Palgrave Macmillan), www.tortureteam.com

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