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DOJ: Iraq Had No Al Qaeda Affiliates (Working Thread on KSM Indictment)

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As Eric Holder said, he had the December 14, 2009 indictment of KSM and the other 9/11 defendants unsealed. Here is the indictment.

Page 3: Note in their description of why al Qaeda targeted the US, they make no mention of Palestinians, even though they were mentioned explicitly in the Fatwa?

Page 3: Note the list of al Qaeda affiliates in paragraph 4. Note what’s missing? Iraq.

Page 4: The indictment says Muhammad Atef was “responsible for supervising the terrorist training of al Qaeda members.” I take this as an implicit admission they were lying about Abu Zubaydah for all those years (though on page 5, they do list Khalden and Derunta as campes which al Qaeda “sponsored, managed, and financially supported”).

Page 4: The indictment lists KSM, Walid Bin Attash, and Mustafa al-Hawsawi as members of the media committee.

Page 5: Note the reference to “assorted training manuals.” We’ve always seen discussion of one manual, the Manchester manual. I find the reference particularly interesting given that Bruce Jessen and James Mitchell justified their torture based on what they read in an unspecified manual.

Page 6: The description of the manuals includes this, which served as justification for torture:

Al Qaeda provided counter-interrogation training to its personnel, which, among other things, required captured operatives to lie to authorities to prevent detection of an ongoing plot.

Page 8: Note how they reference Moussaoui:

In 2001, Zacarias Moussaoui, a co-conspirator not named as a defendant herein, traveled to the United States and took pilot and jet-simulator training in Oklahoma and Minnesota.

Page 9: They make no mention of Mohammed al-Qahtani among the list of hijackers, intended or not.

Page 14: KSM trained hijackers to use short-bladed knives by killing sheep and camels.

Page 15: The indictment describes which flights Walid bin Attash tested cockpit safety (in Asia). The sourcing on this is rather interesting–for example, how did they learn that Attash had a Leatherman on his January 2000 Malaysian flight? The question is particularly interesting given that we should expect they would not use anything that came from the defendants here, so as to avoid any torture taint.

Page 16: It’s actually really helpful that they list what flight each hijacker eventually ended up on–it really helps you to see how the Hamburg cell ended up on the planes. I wish the 9/11 Report had done that!

Pages 18-19: Some of the details on overseas financing are quite interesting (particularly given my discussion about SWIFT this morning).

Page 20: Again, the level of detail for KSM’s actions raise interesting questions about source. Also, note that KSM’s order to send $$ to the hijackers post-dates (April 2001) the list of transfers on the previous pages.

Page 20: I’m particularly curious about this mention.

In or about mid-April 2001, KHALID SHEIKH MOHAMMED expressed frustration to RAMZI BIN AL-SHIBH that a hijacker was not traveling to the United States sooner.

Particularly given the detail, I wonder whether the hijacker in question was al-Qahtani (who tried to enter the country on August 3, 2001).

Page 23, 24: Note the list of precisely how many calls the hijackers made to al-Hawsawi and bin al-Shibh, but not what was said.

Page 25: Did we know KSM applied for an entry visa on July 23, 2001?

Page 25: Note they include payments to Moussaoui.

Page 26: Ah, we finally get reference to al-Qahtani, named as “Co-Conspirator 1” in the indictment.

Page 27: Note the stupid, gratuitous reference to “Reagan National Airport” but not to “McCarren International Airport” in Las Vegas.

Page 27: They describe the knife Moussaoui had when he was arrested (a Leatherman).

Page 27: Paragraph 145 doesn’t provide the date or the method by which the hijackers told KSM of the date of the attack, even though it has been reported. This seems an unnecessary exclusion of legally collected NSA information.

Page 29: They seem not to know precise details of how bin al-Shibh got from Spain on September 5 to Dubai on September 9, 2001.

Page 32: Note the reference to a post-9/11 meeting between bin al-Shibh, al-Hawsawi, and Osama bin Laden that was taped. Have we seen this tape?

Page 36-37: Count 4, Violence on and Destruction of Aircraft, applies only to Flights 11 and 175 (the two WTC flights). Anyone know why?

Page 37: Count 5, Conspiracy to Commit Aircraft Piracy, continues through March 1, 2003, when they captured KSM. (Now that I check, so does Count 3.)

Page 40: Counts 7 and 8 are murder charges tied to unnamed Federal Officers who were at WTC. Given the number of first responders who died, these two officers could be anyone. But remember that CIA’s office got destroyed in the WTC attack, though none of their personnel were reported to have died. [Update: Ron Brynaert has suggested these two are probably FBI Special Agent Lennie Hatton and Secret Service Master Special Officer Craig Miller, who ran into the towers to help with rescues. Both are listed among the rest of the victims in the WTC list.]

Page 41: The indictment alleges that the accused continued in their conspiracy to kill Americans up to the filing of the indictment.

Page 43: There’s a weird hodge podge of acts included in Count 10 to substantiate the conspiracy to kill Americans. Notably, it includes KSM and Ali Abdul Aziz conspiring in November and December 2001 to attack planes with shoe bombs (Richard Reid made his attempt on December 22, 2001). But they don’t allege anything with regards to Jose Padilla. Nor wrt Iyman Faris or Majid Khan, both plots KSM allegedly reported.

Pages 45-80 have the list of all the victims of the attack (along with the two anonymous officers listed in Counts 7 and 8). I think that’s the most impressive part of the indictment, seeing the list of names like that.

Eric Holder: Moving KSM Trial to Gitmo Wrong Decision, But We’re Doing It Anyway

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There was something I appreciated about the Holder press conference capitulating on trying the 9/11 defendants in civilian trials.

He didn’t try to spin it as a good idea.

Not only did he reiterate his judgment that trying KSM in a civilian trial was the right decision, he also noted that it’s not clear whether military commissions can impose the death penalty on someone who pleads guilty.

And then he ended the presser quickly, as if he had to rush upstairs to his office to vacate it so some General could move in.

That said, it’s clear that Holder lost an important battle, one he believed in. Here’s what Jane Mayer reports on the work SDNY’s prosecutors have already done on the trial.

Holder and some of the smartest prosecutors in the country had prepared what they believed was the strongest case possible against K.S.M. Lawyers involved in the effort told me they had spent years on it, and had files filled with killer evidence, just waiting for trial. Careers had been devoted to compiling an impeccable case. By using the civilian justice system, Holder had wanted to send several important messages, among them that terrorists are criminals, not some new breed of super warrior; and that the U.S. legal system is the strongest, fairest, and most credible system in the world. A guilty verdict arrived at in front of the world, in a public trial, with ordinary citizens sitting in judgment of K.S.M., would be internationally accepted as legitimate, in a way that no military tribunal ever will be. Or so the thinking went.

Of course, if Holder cared that much about these principles–and I believe he does–it would sure be nice to see him resign rather than preside over the continued decline of our commitment to the rule of law.

(Holder’s full statement–with my emphasis on select points–is below the line.)

Update: Here’s the indictment from 2009 unsealed today. It lists all the known victims of 9/11.

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This Presidential Campaign Brought to You by a Massive Capitulation on Civilian Law

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Reports are trickling out that Eric Holder will announce an epic cave this afternoon on his earlier decision to try the 9/11 defendants in civilian courts.

Attorney General Eric Holder today will announce that self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammad will be tried in a military commission, CBS News has learned. A source says the commission will be held at the Guantanamo Bay prison.

As Adam Serwer and MadDog have pointed out, how pathetic that this announcement comes on the same day that Obama launches his reelection campaign with a note that says, in part,

So even though I’m focused on the job you elected me to do, and the race may not reach full speed for a year or more, the work of laying the foundation for our campaign must start today.

We’ve always known that lasting change wouldn’t come quickly or easily. It never does. But as my administration and folks across the country fight to protect the progress we’ve made — and make more — we also need to begin mobilizing for 2012, long before the time comes for me to begin campaigning in earnest.

[snip]

We’ll start by doing something unprecedented: coordinating millions of one-on-one conversations between supporters across every single state, reconnecting old friends, inspiring new ones to join the cause, and readying ourselves for next year’s fight.

Because nothing says “laying the foundation” of a Presidential campaign and “inspiring new” supporters like caving to fearmongering.

8 Years Ago Today, KSM Was Probably Being Waterboarded for the 179th Time

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I don’t really know precisely what days in March 2003 the CIA’s contractors waterboarded Khalid Sheikh Mohammed a total of 183 times.

But I thought about the rough timing when Dafna Linzer tweeted about this Steven Aftergood post, noting the report in the Senate Intelligence Committee’s review of what they did last Congress said they still weren’t done with their torture review.

It is nearly a decade since the Central Intelligence Agency embarked on its controversial post-9/11 program of prisoner detention and interrogation, which included “enhanced” procedures that would later be repudiated and that were widely regarded as torture.  But even now, an accurate and complete account of that episode remains unavailable.

It is more than two years since the Senate Intelligence Committee belatedly began “a study of the CIA’s detention and interrogation program.”  The Committee reported (pdf) this month that “the CIA has made available to the Committee over 4 million pages of CIA records relating to its detention and interrogation program.”

Yet the Committee said that its two year old review of the nearly decade-old program is still not complete:  “The review has continued toward the goal of presenting to the Committee, in the [current] 112th Congress, the results of the review of the extensive documentary record that has been provided to the Committee.”  There was no mention of presenting the results of the review to the public.

It seems to me we’re never going to see that report until after the 8 year statute of limitations on torture expire for everything described in the report that clearly exceeded John Yoo’s expansive interpretation of what constitutes torture. And we’re sure as hell not going to get a report on the death threats they illegally used with Abd al Rahim al-Nashiri just as DOD is about to charge him in a military commission.

But they might have to “keep working” on it for a couple more years: I’m betting the government used water “dousing” in 2004 in an illegal manner, too.

It’s a brand new kind of job security for government workers, the kind of “work” they have to do to make sure the statutes of limitation expire on the crimes they’re investigating while they’re investigating them.

How to Ensure You’ll Always Have War Powers to Fight Eastasia

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As we’ve known for years, the May 6, 2004 OLC opinion authorizing the warrantless wiretap program shifted the claimed basis for the program from inherent Article II power to a claim the Afghanistan AUMF trumped FISA.

But one problem with that argument (hard to fathom now that Afghanistan has once again become our main forever war) is to sustain the claim that we were still at war in 2004, given that so many of the troops had been redeployed to Iraq. And to sustain the claim that the threat to the US from al Qaeda was sufficiently serious to justify eviscerating the Fourth Amendment.

So, they used politicized intelligence and (accidentally) propaganda to support it.

Use of the Pat Tillman Propaganda to Support Case of Ongoing War

As I’ve noted, Jack Goldsmith made the unfortunate choice to use an article reporting Pat Tillman’s death as his evidence that the war in Afghanistan was still going on.

Acting under his constitutional authority as Commander in Chief, and with the support of Congress, the President dispatched forces to Afghanistan and, with the cooperation of the Northern Alliance, toppled the Taliban regime from power. Military operations to seek out resurgent elements of the Taliban regime and al Qaeda fighters continue in Afghanistan to this day. See e.g., Mike Wise and Josh White, Ex-NFL Player Tillman Killed in Combat, Wash. Post, Apr. 24, 2004, at A1 (noting that “there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda”).

That article was not really about the ongoing war in Afghanistan; rather, it told a lie, the lie that war hero Pat Tillman had died in combat, rather than in a friendly fire incident.

Pat Tillman, the Arizona Cardinals safety who forfeited a multimillion dollar contract and the celebrity of the National Football League to become a U.S. Army Ranger, was killed in Afghanistan during a firefight near the Pakistan border on Thursday, U.S. officials said yesterday.

Tillman, 27, was killed when the combat patrol unit he was serving in was ambushed by militia forces near the village of Spera, about 90 miles south of Kabul, the Afghan capital. Tillman was hit when his unit returned fire, according to officials at the Pentagon. He was medically evacuated from the scene and pronounced dead by U.S. officials at approximately 11:45 a.m. Thursday. Two other U.S. soldiers were injured and one Afghan solider fighting alongside the U.S. troops was killed.

The death of Tillman, the first prominent U.S. athlete to be killed in combat since Vietnam, cast a spotlight on a war that has receded in the American public consciousness. As Iraq has come into the foreground with daily casualty updates, the military campaign in Afghanistan has not garnered the same attention, though there are still more than 10,000 U.S. troops in the country and fighting continues against remnants of the Taliban and al Qaeda.

Now, I say the choice was unfortunate because, in spite of the fact that Tillman’s commanding officers knew within 24 hours of his death on April 22 that it was a friendly fire incident, in spite of the fact that General Stanley McChrystal sent an urgent memo within DOD on April 29 that the death was probably friendly fire, and in spite of the fact that the White House learned enough about the real circumstances of Tillman’s death by May 1 to make no claims about how he died in a Bush speech, there’s no reason to believe that Jack Goldsmith would have learned how Tillman died until it was publicly announced on May 29, 2004.

In other words, it was just bad luck that Goldsmith happened to use what ultimately became an ugly propaganda stunt as his evidence that the Afghan war was still a going concern.

Producing Scary Memos to Justify Domestic Surveillance

I’m less impressed with the description of the role of threat assessments that we’re beginning to get.

Goldsmith’s memo includes an odd redaction in its description of the threat assessment process.

As the period of each reauthorization nears an end, the Director of Central Intelligence (DCI) prepares a memorandum for the President outlining selected current information concerning the continuing threat that al Qaeda poses for conducting attacks in the United States, as well as information describing the broader context of al Qaeda plans to attack U.S. interests around the world. Both the DCI and the [redacted] review that memorandum and sign a recommendation that the President should reauthorize [redacted name of program] based on the continuing threat posed by potential terrorist attacks within the United States. That recommendation is then reviewed by this Office. Based upon the information provided in the recommendation, and also taking into account information available to the President from all sources, this Office assess whether there is a sufficient factual basis demonstrating a threat of terrorist attacks in the United States for it to continue to be reasonable under the standards of the Fourth Amendment for the President to authorize the warrantless involved in [redacted, probably name of program]. [my emphasis]

Now, there are any number of possibilities for the person who, in addition to the DCI, reviewed the threat assessment: John Brennan and others who oversaw the threat assessment are one possibility, David Addington or Dick Cheney are another.

But the IG Report provides another possibility or two that makes this whole passage that much more interesting:

The CIA initially prepared the threat assessment memoranda that were used to support the Presidential Authorization and periodic reauthorizations of the PSP. The memoranda documented intelligence assessments of the terrorist threats to the United States and to U.S. interests abroad from al Qaeda and affiliated terrorist organizations. These assessments were prepared approximately every 45 days to correspond with the President’s Authorizations of the PSP.

The Director of the Central Intelligence’s (DCI) Chief of Staff was the initial focus point for preparing the threat assessment memoranda. According to the former DCI Chief of Staff, he directed CIA terrorism analysts to prepare objective appraisals of the current terrorist threat, focusing primarily on threats to the U.S. homeland, and to document those appraisals in a memorandum. Initially, the analysts who prepared the threat assessments were not read into the PSP and did not know how the threat assessments would be used. CIA’s terrorism analysts drew upon all sources of intelligence in preparing these threat assessments.

After the terrorism analysts completed their portion of the memoranda, the DCI Chief of Staff added a paragraph at the end of the memoranda stating that the individuals and organizations involved in global terrorism (and discussed in the memoranda) possessed the capability and intention to undertake further attacks within the United States. The DCI Chief of Staff recalled that the paragraph was provided to him initially by a senior White House official. The paragraph included the DCI’s recommendation to the President that he authorize the NSA to conduct surveillance activities under the PSP. CIA Office of General Counsel (OGC) attorneys reviewed the draft threat assessment memoranda to determine whether they contained sufficient threat information and a compelling case for reauthorization of the PSP. If either was lacking, an OGC attorney would request that the analysts provide additional threat information or make revisions to the draft memoranda.

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The Secrets Military Commissions Keep that Civilian Courts Don’t

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As I mentioned in my earlier post on the new Gitmo protective order, DOD is reportedly preparing to charge Abd al Rahim al-Nashiri for his role in the Cole bombing for trial in a military commission. That’s worth keeping in mind because the Gitmo order is largely based on the protective order the DC District Court uses for habeas cases. The Gitmo order chose not to simply adopt the DC District order, though, suggesting the differences may have been crafted for people like al-Nashiri.

While some of the changes are just procedural, others are more telling. A central difference is the assertion that everything a High Value Detainee says will be presumptively treated as Top Secret/SCI (an update to the DC District order, issued before Abu Zubaydah’s lawyers got materials in his habeas case, includes treatment of TS/SCI information). So anything al-Nashiri tells his attorney about the torture he suffered–including the torture still allegedly being investigated by DOJ–will be considered TS/SCI.

In a similar vein, the prohibition on sharing detainee statements in classified documents I mentioned earlier is an addition to the DC District order.

Statements of the detainee that detainee’s counsel acquires from classified documents cannot be shared with the detainee absent authorization from the appropriate government agency authorized to declassify the classified information.

Curiously, the Gitmo order includes an extra requirement before attorneys get access to classified information: that the attorney,

provid[e] to the Chief Defense Counsel detailed verifiable information regarding past employment, including a list of prior case assignments, to ensure against any conflicts of interest with the case to which detainee’s counsel is currently assigned.

I’m very interested in what “conflicts of interest” they have in mind. Particularly as it relates to al-Nashiri, remember that there was a JAG investigation into whether Kirk Lippold acted improperly in the USS Cole attack (the investigation was designed not to look at larger questions about rules of engagement because they would reflect badly on our allies in Yemen). In addition, one of the CIA’s first uses of a drone to kill someone–with the supposed “accidental” killing of US citizen Kamal Derwish at the same time–was in the killing of Abu Ali al-Harithi. I would imagine the government would want to make sure al-Nashiri’s attorneys are completely ignorant about certain details of both of these events. That said, the restriction may well be about making sure attorneys don’t know too much about other detainees. In any case, they seem to be using “conflict of interest” where they really want to deprive attorneys who “know too much” of serving as counsel.

The Gitmo order also eliminates a caveat included in the DC order. In the rule prohibiting attorneys from sharing certain information with their clients,

Written and oral communications with a detainee, including all incoming legal mail, shall not include information relating to any ongoing or completed military, intelligence, security, or law enforcement operations, investigations, or arrests, or the results of such activities, by any nation or agency or current political events in any country that are not directly related to counsel’s representation of that detainee; or security procedures at GTMO, including names of U.S. Government personnel and the layout of camp facilities, or the status of other detainees, not directly related to counsel’s representation. [my emphasis]

… the Gitmo order eliminates the exception in cases where this information relates to the lawyers representation of the detainee. I’m particularly interested in this given that Khalid Sheikh Mohammed named detainees whom he had implicated under torture, insisting they were innocent. Preventing any discussion of the status of other detainees would prevent such public revelations at a military commission.

The Gitmo order also includes a prohibition on sharing of information between detainees.

No materials, either Legal Mail or non-Legal Mail, are permitted to be exchanged directly between detainees unless authorized by the JTF-GTMO Commander or, after referral, the military judge. If a detainee in a military commission is authorized to proceed pro se, the military judge may authorize special procedures to facilitate the exchange of information necessary for a pro se detainee to prepare a defense. However, all written materials provided to a pro se detainee must be first reviewed by the Privilege Team under the same standards applicable to detainees represented by counsel.

Much of this order–and this restriction in particular–seems to be a response to the John Adams project, which collected photos of detainees torturers and in some case had them exchanging photos among themselves.

Finally, while the DC order ensured that the content both face-to-face and phone conversations between an attorneys and their client could not be monitored, the Gitmo order explicitly permits the recording of phone calls between lawyers and their clients.

Any telephonic access by detainee’s counsel is subject to appropriate security procedures, including contemporaneous monitoring and recording. Any telephonic access between detainee’s counsel and a detainee over either secure or non-secure systems may be subject to appropriate security procedures, including contemporaneous monitoring and recording by the Privilege Team. [my emphasis]

Mind you, as CCR’s suit about the wiretapping of attorney-client conversations shows, they’ve been doing this all along anyway. But now they’re making it explicit.

Report Concludes Khalid Sheikh Mohammed Personally Killed WSJ Reporter Danny Pearl

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A long-term report on the murder of Danny Pearl has just been released. The WaPo describes the report this way.

A recently completed investigation of the killing of Daniel Pearl in Pakistan nine years ago makes public new evidence that a senior al-Qaeda operative executed the Wall Street Journal reporter.

Khalid Sheik Mohammed — the self-described mastermind of the Sept. 11, 2001, attacks, who is being held at the U.S. detention center at Guantanamo Bay, Cuba — said at a military hearing in 2007 that he killed Pearl. But there have been lingering doubts about his involvement, and the United States has not charged him with the crime.

According to the new report, which was prepared by faculty members and students at Georgetown University, U.S. officials have concluded that vascular technology, or vein matching, shows that the hand of the unseen man who killed Pearl on video is that of Mohammed. The report also says Mohammed told the FBI that a senior al-Qaeda operative advised him to take control of Pearl from his original kidnappers.

The 31,000-word report, published in conjunction with the Center for Public Integrity at www.publicintegrity.org, is among the most complete and graphic accounts of Pearl’s death. The 3 1/2-year investigation, called the Pearl Project, was led by Asra Q. Nomani, a former colleague of Pearl’s at the Journal, and Barbara Feinman Todd, director of the journalism program at Georgetown.

I’ll have more to say about the report in a bit–consider this a working thread in the mean time.

But I did want to point out the final conclusion of the report:

Pearl’s actual murderers will likely not stand trial for their crime. Federal officials decided in the summer of 2006 not to add the Pearl murder to charges against KSM in military tribunals because they concluded that would complicate plans to prosecute him and four alleged accomplices in the 9/11 attacks. KSM’s suspected accomplices aren’t expected to be charged, either. One nephew is being tried for the 9/11 attacks, and the whereabouts of the older nephew aren’t publicly known.

Gul Rahman: Another Case Where Torture (and Homicide) Failed to Elicit the Location of Extremist Leaders

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The US government has a long history of refusing to turn over evidence on its torture program, most recently when DOJ refused to cooperate with a Polish inquiry into the black site at which Khalid Sheikh Mohammed was waterboarded 183 times.

So it’s no surprise that they are refusing to turn over the remains of Gul Rahman–the detainee whom the CIA killed in the Salt Pit in 2002–to his family. (h/t Mary) The FBI is also refusing to turn over the autopsy report on Rahman’s death to the AP on account of the probably “pretend” investigation they’re conducting on it.

Assholes.

In addition to reporting that news, the AP reports the excuse the CIA is now giving for having killed Rahman in the first place.

Former CIA officials say Rahman was acting as a conduit between Hekmatyar and al-Qaida. Hekmatyar’s insurgent group is believed to be allied to al-Qaida. The former officials said the CIA had been tracking Rahman’s cell phone at the time of his capture and were hoping the suspected militant would provide information about Hekmatyar’s whereabouts.

But Rahman never cracked under questioning, refusing to help the CIA find Hekmatyar. Former CIA officials described him as one of the toughest detainees to pass through the CIA’s network of secret prisons.

Note the logic of this argument? For some reason, they couldn’t find Hekmatyar by tracking Rahman’s cell phone (Rahman was picked up long before Afghans got more aggressive about hiding their cell phone locations).

But if they couldn’t find Hekmatyar by tracking Rahman’s calls to him, then why were they so sure he knew where Hekmatyar was?

So now they’ve got to explain away his death because he was “one of the toughest detainees to pass through the CIA’s network of secret prisons,” and not because maybe he didn’t know the answer to the question they were asking, the location of Hekmatyar himself.

Of course, there’s a history of using the worst kinds of torture on detainees who don’t know or wouldn’t reveal the whereabouts of others, too. The location of Osama bin Laden, after all, is one of the things that KSM has said he lied about in response to his brutal torture.

And while we’re on the subject of lying, let’s return to what KSM has said he lied about while being tortured during his 2007 Combatant Status Review Tribunal.

… I make up stories just location UBL. Where is he? I don’t know. Then he torture me. Then I said yes, he is in this area of this is al Qaida which I don’t him.

Mind you, in KSM’s case, at least, Ali Soufan believes KSM could have been persuaded to reveal OBL’s location if only real interrogators had interviewed him.

KSM should consider himself lucky, I guess, that the government’s brutal torture in hopes of learning the location of top extremist leaders got slightly safer between the time they killed Rahman and wateboarded him a mere 183 times.

More Cheney Get Out of Jail Free Costs: Mitchell and Jessen’s $5 Million Indemnity Agreement

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The AP has a story on Mitchell and Jessen’s torture defense. The lead of the story describes how CIA protected the torturers both by paying all of their defense costs–up to $5 million–as well as paying it directly out of CIA funds.

But there’s an interesting sub-narrative. The piece describes how, in addition to just waterboarding Rahim al-Nashiri twice (even Dick Cheney has implicitly admitted that waterboarding did not work), Mitchell and Jessen also successfully argued against waterboarding Ramzi bin al-Shibh.

Mitchell and Jessen successfully argued against waterboarding admitted terrorist Ramzi Binalshibh (RAM’-zee bin-al-SHEEB’) in Poland, the official said.

And then when it came time to waterboard Khalid Sheikh Mohammed 183 times, Mitchell and Jessen played a somewhat different role.

The role of Mitchell and Jessen in the interrogation of confessed Sept. 11 mastermind Khalid Sheikh Mohammed is a bit murkier.

At least one other interrogator was involved in those sessions, with the company providing support, a former official said. Mohammed was waterboarded 183 times in Poland in 2003, according to documents and former intelligence officials.

Remember, too, that authority over the torture program within the CIA also shifted around this time, and that after al-Nashiri was deemed compliant originally, analysts came in and used the kind of death threat that even John Yoo said was torture. And of course, over the period, the CIA decided it was probably a good idea not to film their torture sessions.

All of which suggests there was some regret or recognition that the torture program wasn’t such a good idea.

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Khalid Sheikh Mohammed and the Forever War

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There are a lot of things wrong with Obama’s apparently imminent decision to just let Khalid Sheikh Mohammed rot in jail without a formal trial.

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

Obviously, it’s a further spineless capitulation on Obama’s part. It’s a concession, too, that all you have to do to eliminate the rule of law in this country is squawk in Congress and on Fox News.

It also serves as a guarantee that the 2001 AUMF declaring war against the now-50 al Qaeda members who had something to do with 9/11 will last forever–or at least for the rest of Khalid Sheikh Mohammed’s life.

Mind you, the government has been planning on making this a forever war since 2001, precisely so it could hold people like KSM forever.

Now, with the decision to just let KSM rot, it seems to me, that plan gains a new anchor (and none too soon! given that only a handful of al Qaeda members remain in Afghanistan, that justification was getting rather dicey). After all, the very decision not to try KSM in a military commission is an admission that it would not work for him–it might rule out the death penalty for him in any case, but a military commission judge actually has leeway to adjust any sentence on account of the extreme torture KSM underwent, meaning our torture of KSM might become a central issue in a military commission.

But any further delay in charging KSM in civilian court make it less likely they’ll be able to charge him in the future, because this current delay almost certainly violates any interpretation of speedy trial rights. You can’t just wait to charge someone until such a time as the political winds make it easier to do.

Mind you, I agree that KSM is precisely the kind of person you do need to hold for the safety of the country (unlike many of the other detainees slotted for indefinite detention).

And that’s why this decision almost guarantees that the AUMF just became a forever war–at least one lasting the next twenty to forty years of KSM’s life. Because the government has apparently decided to hold KSM with no more solid legal justification than the war, which judges have interpreted to be the AUMF. Which means the government is going to have to sustain some claim that that AUMF remains in effect, even if we go broke and withdraw from Afghanistan as a result (that seems to be the only thing that will make us withdraw, in spite of the fact that we’re not going to do any good there).

Nine years ago, a British Embassy employee wrote,

As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.

The decision to hold KSM indefinitely has now flipped that equation: so long as the only justification for holding KSM is the claim we’re at war, we’ll have to remain at war.

And all those bonus powers a President gets with the claim that we’re at war? They’re all wrapped up now, in the necessity to hold KSM forever.