The torture of a terrorist

By Christopher King

 31 December 2009

Christopher King argues the case for releasing Al-Qaeda suspect Khalid Shaikh Mohammed in order to highlight the issues involved that go much further than punishing a terrorist. 

”The crimes against Mohammed are so egregious that they have undermined both the foundations of Western law and fundamental humanitarian principles; they have regressed the relationship of the individual to the state by half a millennium; they have demonstrated that the USA regards foreigners as outside law and unworthy of humanitarian treatment. Mohammed has been subjected to crimes of incredible gravity by the American state.

“If the perpetrators of these grave crimes will not be prosecuted, the American state cannot with justice prosecute Mohammed. Even if Messrs Bush, Cheney and Ms Rice were to be prosecuted, it is arguable that as they acted with the authority of the state, Mohammed is nevertheless due appropriate recompense from the state.

“Recompense can therefore only take the form of Mohammed’s release. The state has irreparably prejudiced its right to try him.”

The New York Times reports that eight years after his arrest for participation in the 9/11 World Trade Centre attack, a criminal trial is being arranged in the United States for Khalid Shaikh Mohammed and four others similarly accused. The implications go much further than simply trying and executing a terrorist as the Obama administration and American public apparently expect.

Mohammed is uncle to Ramzi Yousef, the bomb maker from Baluchistan who allegedly originated the plan to attack the twin towers. There appears to be good independent evidence that Mohammed collaborated with Yousef as one of the earliest planners of the two attacks that killed over three thousand persons.

One would normally expect no dissent from any reasonable person in bringing Mohammed to trial and on the face of it, obtaining a conviction. There are extraordinary circumstances in this case and others like it, however:

1. Mohammed has reasons for attacking the United States that in a reversed situation would be considered valid;
2. Mohammed has been imprisoned without legal advice or a court hearing (habeas corpus) for about eight years;
3. Mohammed was tortured by the US government with full approval of the White House and the president

Khalid Shaikh Mohammed’s motives and actions

It will doubtless be considered by most Americans and many in Europe that no reasons can excuse the murder of over three thousand persons and that he richly deserves everything that has been done to him. That juxtaposition is not appropriate, however. It is true that nothing can excuse the murder of one, much less three thousand persons; it is untrue that Mohammed deserves what was done to him and America needs to take this into account.

Indeed, much of the world believes that with the 9/11 attack America got what it deserves, particularly those in countries that have experienced American military interventions, political interference, American-sponsored coups and armed insurrections. This belief is reinforced by America’s subsequent behaviour in Afghanistan and Iraq, and its unfounded aggression towards Iran. Countries that have in the past been disadvantaged by the military and economic power of the United States might well support practical anti-terrorist measures while enjoying satisfaction from the current problems of the United States.

The reasons for the 9/11 attack given by Osama Bin Laden are, broadly, US military aggression in the Middle East, occupying and looting Saudi Arabia and support for Israel. The general question is: in the event that a foreign power occupies one’s country, attacks neighbouring countries and meddles in the region’s politics, what resistance action is legitimate?

There can be no doubt that in international law and precedent, resistance to armed aggression is legitimate. Moreover, in the reverse situation, if the US were to be occupied by armies from for example China, a similar direct attack on China by a US citizen or sympathizer from Canada or the UK would be considered by US citizens as an act of heroism. Against overwhelming military force, only guerrilla tactics are possible. In that case they must necessarily be legitimate. Precedents are the French, Norwegian and Netherlands resistance against Nazi occupation. The formerly imprisoned terrorist Nelson Mandela who fought apartheid is now a world hero. One might also mention the Jewish gangs who murdered British soldiers and civilians in Palestine, considered heroes by the Israelis, two of whose leaders, Menachem Begin and Yitzhak Shamir, became prime ministers of Israel.

In terms of right and wrong in human behaviour, neither the occupation, political interference in and economic exploitation of foreign countries, nor retaliatory guerrilla attacks on occupiers or civilians are right. Both are wrong. In terms of justice, which is the business of courts, a balance must be considered. The purpose of justice is to enable people who have suffered wrong to terminate ill-will as far as humanly possible and live together. An attempt must be made to achieve an outcome that takes account of the actions of both parties.

In the case of Mohammed, there can be no doubt that America’s military and political actions in the Middle East before the 9/11 attacks were illegal in international law or to the disadvantage of the Islamic countries. For example:

• The CIA/United Kingdom coup against the democratic Iranian Mossadeq government in Iran
• US support for Saddam Hussein’s attempted seizure of Iranian oil fields and eight years of warfare
• Indirect responsibility for Saddam’s invasion of Kuwait; clearly Saddam believed that the US, as his friend, would tolerate it
• US support for the Taliban against the Soviet Union, following which the Taliban took over the country
• US economic and military support for Israel in its land theft from and occupation of Palestine
• In general, the US’s actions to control the oil-rich countries of the Middle East and exploit their oil.

These actions, among others, by the US have contributed to, or even generated, the rise of Islamic fundamentalism and militancy as expressed by Al-Qaeda and Mohammed in particular.

In considering Mohammed’s motives and actions therefore, it is essential in terms of justice to weigh the circumstances that might be called provocations or aggressions by the US that motivated him. Taking these into account and reversing the situations is the essential test of fairness and justice.

Khalid Shaikh Mohammed’s imprisonment

As the United States is governed by the rule of law, the law that applies to US citizens, together with international law, should be applied to Mohammed. Any government that departs from law has destroyed its own legitimacy. It is for that reason that the US government kept Mohammed in a secret prison for approximately four years and then in the Guantanamo Bay prison on Cuba where, it was argued, US law did not apply and essentially, no laws applied to non-Americans. To accept that argument is to accept that, in principle, the US government, its employees and conceivably its citizens are not bound by any laws in their dealings with foreigners outside the USA. Consistent with this, the government of the USA does not recognize the jurisdiction of the Court of International Justice nor the International Criminal Court over its own actions nor those of its citizens.

Mohammed was imprisoned for eight years with no advice on his rights (he was assumed to have none), no advice from a lawyer of his choice nor any opportunity to hear the evidence against him in court and make a defence. This was to deprive him of habeas corpus rights, that is, the right to challenge his detention. This is essentially the individual’s right to protection against arbitrary or unjust imprisonment by the state. It is the most important and fundamental protection of individual freedom.

Mohammed was deprived of all protection by the law not for a short period but for approximately eight years. This was not due to error or force of circumstances but by United States government intent, authorized by the president. President Bush himself announced that Mohammed and others were being held in secret prisons, evidently in other countries. Mohammed eventually came to be held in the Guantanamo Bay prison which was established by the US government with the express intention of keeping its prisoners outside international and domestic US law. It invented the new category of “enemy combatant” to evade the application of law to these persons. Enemy combatants were essentially persons who were suspected of resisting the US invasions in the Middle East or of participating in attacks on the US itself.

Contrary to all established law, Guantanamo secret trials were held in which the accused were not permitted to know what the evidence against them was. Evidence of innocence was in some cases known but concealed. Evidence and confessions had often been obtained by torture of the accused or others. In the United States, those arrested have “Miranda” rights, that is, they are by law required to be informed that they have a right to remain silent and to have a lawyer present during their questioning. There were no such rights extended to Mohammed or other Guantanamo prisoners.

It is now established that no valid evidence whatsoever could be produced against many persons, perhaps the majority, imprisoned for very long periods, generally of six years or more in Guantanamo Bay Prison. Such imprisonment was possible because the US government had intentionally deprived these persons of the rights under law available to US and European citizens and of public scrutiny of its actions. A US court would consider that if one if its citizens had been treated in this manner, his basic rights had been grievously violated. There would be a good case for demanding his immediate release and dismissal of charges against him.

It is now clear that both the Bush and Obama administrations consider that the principles of US law do not apply to US government actions against foreigners, even on US-controlled territory. Nor do the basic rights that in civilized countries permit those arrested by the state to demand a public hearing and sight of the evidence against them.

Khalid Shaikh Mohammed’s torture

It is known that many if not all Guantanamo prisoners were tortured; however Mohammed was singled out for extreme torture, termed “harsh interrogation” by the Bush administration, which included extreme physical and psychological abuse. The most serious of these known to date is the “waterboarding” technique that was approved personally by Condoleezza Rice, former Secretary of State, for CIA use.

Waterboarding is partial drowning administered to a tied or shackled victim in which the victim’s lungs and stomach partially fill with water. Unconsciousness might result and medical assistance might be necessary to revive the victim. A video of a volunteer being carefully waterboarded and his description of the experience can be seen here. It is said that the choking and suffocation sensations, together with the feeling of helplessness, are appalling. This is undoubtedly torture of the worst possible kind.

Leaving aside other instances of abuse, Mohammed was waterboarded on 183 occasions.

Mohammed has confessed to a large number of crimes; however, it is not clear which of these were elicited under torture. Waterboarding is so cruel that it will cause anyone to confess to anything. It appears, however, that Mohammed resisted waterboarding to a great extent, showing extraordinary resilience on his part as well as extraordinary cruelty on the part of his torturers.

Torture is outlawed by international law and domestic law in all countries claiming civilized standards of law, including the US. It is now well established that the United States government tortured and waterboarded Khalid Shaikh Mohammed among others, outside all international and domestic law as well as all standards of humanitarian and civilized behaviour.

The position of the United States in this case

The United States government is taking no action to identify those persons involved in the torture of Mohammed (or others). The CIA has destroyed video and other evidence of torture, a crime in itself, but the government is taking no action against those responsible. It is clear from information in the public domain that President Bush, Vice-President Cheney and Secretary of State Condoleezza Rice approved the waterboarding of prisoners. These persons are criminals by all standards of law and humanity.

There can be no doubt that if any ordinary person were to torture anyone else within the United States as Mohammed has been tortured, the perpetrator would be imprisoned for life and widely reviled. It is not clear, therefore, how those responsible for approving torture and actually torturing Mohammed can be immune from prosecution.

The US government now proposes to put Mohammed on trial for his alleged role in the 9/11 World Trade Centre attack with the proviso that evidence gained from torture will be excluded. It is probable that the death penalty will be sought. This proposal is apparently widely supported by US citizens but is deeply troubling to many persons in other countries and to those concerned with the rule of law.

General implications of Khalid Shaikh Mohammed’s position

1. Mohammed’s part in the WTC attack (if proven) was retaliatory against the USA, which is wrong. It might nevertheless be just, however, given the USA’s illegal and unjust objectives and actions in the Middle East.
2. Mohammed’s imprisonment outside law and the US government’s evasion and flouting of international and its own legal standards in denying him habeas corpus rights discards a thousand years of progress in the foundations of law. Consequently, he has a grave and important grievance.
3. Mohammed’s torture by the government of the USA constitutes revival of one of the most abhorrent state practices of past ages. In this, Mohammed’s grievance is as serious as it is possible to be.

These factors might well be of no interest to the government and citizens of the USA but they are of intense interest to the rest of the world.

Khalid Shaikh Mohammed viewed by the world

The USA’s treatment of Mohammed demonstrates how the United States and its citizens view themselves in relation to the rest of the world. The rest of the world sees that the United States will do as it wishes outside its borders. It will attack and invade other countries, foment coups, bribe, assassinate, kill, kidnap and torture anyone it wishes and ignore all laws – international, foreign and domestic. The world observes US objectives to be the theft of others’ resources and the economic exploitation and control of other countries by any means. US behaviour in Iraq, Afghanistan, Pakistan and past and present actions against Iran demonstrate this most perfectly.

In particular, the treatment of Khalid Shaikh Mohammed is evidence that the United States has abandoned law. Any citizen of any country in the world who resists the United States’ aggression might now be treated as he has been, with extreme, barbaric cruelty. Alternatively, one is liable to be assassinated on suspicion as is occurring overtly at this moment in Afghanistan and Pakistan but also occurs covertly.

It is a valid principle that if a government can abuse one man outside law it can abuse anyone in the same way.

The USA’s debt to Khalid Shaikh Mohammed

The USA’s actions in this case now concern not only Mohammed, but since the US both aspired to and has become the dominant power in the world, it concerns everyone in the world.

Assuming that Mohammed has indeed committed retaliatory and murderous acts against the USA, the USA has also committed stunningly outrageous acts against him personally. No government can commit acts of torture and imprisonment without trial while retaining its credibility. Similarly, no government can permit those who carried out such acts to escape punishment without implicitly condoning them, yet the Bush administration carried out these crimes against Mohammed, the present Obama administration is concealing them and will take no action against the perpetrators.

Where wrong has been committed, justice demands recompense. Whatever he has or has not done, Mohammed is due recompense from the government of the USA. To merely claim that it has ceased torture and other illegal practices is not good enough. To claim that international or US domestic law did not apply to this man is merely disgusting. It is only by giving Mohammed recompense for its crimes against him that the world can begin to regain confidence in the integrity of the US government. The US needs to convince the world that although it has committed crimes, it regrets them and will not repeat the offences. Otherwise, citizens of all other countries may be confident only that the USA will repeat its crimes. The government of the USA cannot proceed to try Mohammed for crimes that he has allegedly committed while ignoring the crimes that it has committed against him. If it does, no-one is safe from imprisonment without trial and torture by the US government.

What recompense may be given to Mohammed? The only coin of value to him is his life and his freedom.

The need for a resolution

If the US government were to put George W. Bush, Richard Cheney and Condoleezza Rice on trial for the torture and illegal imprisonment of Khalid Shaikh Mohammed (and others), it would be seen to be even-handed and conceivably gain the right to try Khalid Shaikh Mohammed for terrorism. That is unlikely to occur.

The crimes against Mohammed are so egregious that they have undermined both the foundations of Western law and fundamental humanitarian principles; they have regressed the relationship of the individual to the state by half a millennium; they have demonstrated that the USA regards foreigners as outside law and unworthy of humanitarian treatment. Mohammed has been subjected to crimes of incredible gravity by the American state.

If the perpetrators of these grave crimes will not be prosecuted, the American state cannot with justice prosecute Mohammed. Even if Messrs Bush, Cheney and Ms Rice were to be prosecuted, it is arguable that as they acted with the authority of the state, Mohammed is nevertheless due appropriate recompense from the state.

Recompense can therefore only take the form of Mohammed’s release. The state has irrepairably prejudiced its right to try him. In terms of punishment, he has already been savagely and illegally abused for eight years. He may well be a dangerous man who might commit future crimes but other dangerous men have been released because of procedural irregularities, if Mohammed’s treatment can be called that. The only meaningful recompense that he can be given is in terms of his life and his freedom.

This suggestion will doubtless outrage Americans and their supporters; however, the USA has itself created the geo-political context in which it is alleged that Mohammed carried out his crimes and has itself committed the appalling breaches of law and savagely cruel acts to which Mohammed has been subjected. The world has more to fear from the actions of the United States government’s rejection of law than it has from those persons who resist the US’s armed aggression. The proof is the scale of death and destruction caused by the US in Afghanistan, Pakistan and Yemen, its occupation of Iraq and theft of its oil, its history of and present aggression against Iran which has never threatened the USA. The world now knows that the USA has invaded the Middle East not for humanitarian reasons but to control its oilfields. The pretence is over. The USA has itself created Khalid Shaikh Mohammed in the same way as it laid the foundations of the Iranian Islamic revolution. A show trial and his execution will invite further reaction.

As I have mentioned above, in the hypothetical reverse situation, assuming the US to be under foreign occupation and Mohammed a US citizen who carries out the same attack against the occupying country, he would be considered a US hero. As matters stand, the United States will be remembered for centuries as the country that imprisoned on suspicion 680 foreigners for up to eight years without trial on Cuba for the purpose of torturing them – as state policy. And with European collusion. America’s government and citizens may have whatever opinions they wish about Mohammed and their own role in the world. The world is forming its independent opinions about America that disregard that country’s lies and propaganda.

Khalid Shaikh Mohammed may be seen as a test case for every person who might wish to resist US occupation and control of his country and its resources – including those of Europe. The politicians of Europe consider that support for US aggression and hosting US bases in Europe is to their advantage, although whether to their personal fortunes or their countries is not clear. It is never advantageous to support action outside law. That is the very definition of criminality. The US must decide whether to conform to law and justice or to continue to destroy the fabric of international law and law itself, that has painstakingly been woven over centuries and millennia.

How the US deals with Khalid Shaikh Mohammed will profoundly influence the way in which it is perceived by the rest of the world.

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