9/11 accused was tortured in Guantanamo, judge to decide if he can be tried

A military medical panel has concluded that one of the five 9/11 defendants held at the Guantanamo Bay naval base has been rendered delusional and psychotic by the torture he underwent years ago while in CIA custody.

The findings heighten uncertainty over whether Ramzi bin al Shibh, who has long complained he was under attack by invisible rays at Guantanamo, will stand trial.

A military judge, Col. Matthew McCall, is expected to rule as soon as Thursday whether al Shibh’s mental issues render him incompetent to take part in the proceedings against him.

Defence lawyers argue that the best hope of al Shibh, a Yemeni accused of organising one cell of the 9/11 hijackers, regaining competency to stand trial is a step that some Americans are likely to find distasteful: for him to be provided with post-torture trauma care and no longer subject to solitary confinement.

Al Shibh's newly disclosed diagnosis — post-traumatic stress disorder with secondary psychotic features — is the latest development to show how the George W. Bush administration's approval of abusive interrogation of alleged al Qaida attackers is complicating US efforts to try the men more than two decades later.

On Wednesday, al Shibh’s lead attorney, David Bruck, told the courtroom that the diagnosis is creating “a moment of truth" and an opportunity for the country to take into account the harm that was done by allowing torture.

Negotiations on possible deal

On Sept. 6, the White House said President Joe Biden had declined to approve or deny demands presented by defence lawyers in plea negotiations to settle the case.

They were seeking guarantees that all five men would get care for the physical and mental damage of their torture, and would be spared solitary confinement going forward.

Biden was unsettled about accepting terms for the plea from those responsible for the deadliest assault on the United States since Pearl Harbour, a White House National Security Council official said.

The official spoke on condition of anonymity because he was not authorised to speak publicly. Defence and prosecution attorneys had been negotiating a possible deal that would have the defendants plead guilty in exchange for being spared the death penalty.

Some family members of 9/11 victims objected to the plea negotiations. Conservatives faulted the Biden administration for allowing the negotiations.

No trial has been set

Al Shibh's mental issues meant he was not included in the plea negotiations.

Any future plea negotiations are on hold at least until the military commission gets a new presiding military official next month, lawyers said. No trial date has been set for the five defendants after more than a decade of proceedings.

Logistical challenges and legal questions have slowed the commission at Guantanamo. That includes the question of how much evidence has been rendered inadmissible by torture while they were in CIA custody.

The case has had a succession of military judges, with the fourth announcing on Wednesday that he will retire in April. The charges accuse alleged lead conspirator Khalid Sheikh Mohammed and the other four of helping orchestrate the killings of 2,976 people on Sept. 11, 2001.

Al Qaeda terror group's members commandeered commercial aircraft and flew them into the World Trade Center, the Pentagon and, when passengers thwarted one attack, a field in Pennsylvania.

'His PTSD has to be treated'

Al Shibh is currently being held in disciplinary solitary confinement at Guantanamo, after staging a protest in his cell about the invisible attacks, Bruck said.

The defence lawyer said the event did not injure others but gave no details. Prosecutors are fighting a designation of incompetency for the defendant.

While al Shibh is delusional, “he has the capacity to participate” with his lawyers “and it's really just a choice,” Trivett argued. Trivett said prosecutors would seek to separate him from the case against his four co-defendants if the judge does deem him incompetent.

For al Shibh ever to improve, defense lawyer Bruck told the court, “his PTSD has to be treated. It's not going to get any better until it is.”

The Bush administration after 9/11 cited the threat of future attacks in authorising abusive interrogation by the CIA and military. It instituted a secret CIA detention program for hundreds of suspects, many of whom were later cleared.

The five 9/11 defendants were variously subjected to repeated waterboarding, beatings, violent repeated searches of their rectal cavities, sleep deprivation and other abuse.

Crimes against humanity

A Senate investigation concluded what the administration called “enhanced interrogation” was ineffective at obtaining information.

The CIA's detention and interrogation program ended in 2009. The agency declined comment Wednesday.

This June, the first UN independent investigator allowed to meet with detainees at Guantanamo said even though the 2001 attacks were “crimes against humanity,” the treatment of the detainees was unjustified.

She noted that most of the more than 700 men brought to Guantanamo over the years were detained without cause and had no role in terror attacks. She said all still suffered from physical and psychological trauma and urged torture rehabilitation.

The Biden administration, which has said it wants to close the Guantanamo facility, said in a statement attached to the report that “the United States disagrees in significant respects w ith many factual and legal assertions” but it will carefully review her recommendations.