‘20th hijacker’ Qahtani’s transfer from Gitmo presses vexing questions for which answers are way overdue.
‘20th hijacker’ Qahtani’s transfer from Gitmo presses vexing questions for which answers are way overdue.
M ohammed al-Qahtani was repatriated to Saudi Arabia earlier this week after spending over two decades in American custody at the Guantanamo Bay naval base in Cuba. Though never charged in connection with al-Qaeda’s suicide-hijacking attacks that killed nearly 3,000 Americans on September 11, 2001, Qahtani is believed to have been the absent “20th hijacker.”
Like 15 of the 19 hijackers who did carry out the 9/11 atrocities, Qahtani is a Saudi national. On August 4, 2001, he attempted to enter the U.S. in Orlando, Fla., where he had arrived on a flight from London. Qahtani had no return ticket and no hotel reservation, but Mohamed Atta, one of the 9/11 ringleaders, was there to meet him.
In a sole success out of the congeries of dismal government failures to detect and prevent the attacks, an alert immigration inspector and Army veteran, Jose Melendez-Perez, became deeply suspicious of Qahtani — his bearing, his threatening manner, the fact that he appeared to have military training and knowledge of interview techniques, and his lack of straight answers to simple questions about the purposes and destinations of his trip. Melendez-Perez thought Qahtani might be a hit man for hire and denied him entry. As has often been noted, of the four planes hijacked on 9/11, all had five-man jihadist teams except Flight 93. Without Qahtani, it was the only jet that did not strike its target — its four-man team overcome by the heroic passengers and crew, who perished when the plane crash-landed in a field near Shanksville, Pa.
Qahtani was undeniably subjected to physical abuses and humiliation while in American custody. Long before that, though, his apologists claim he suffered a traumatic brain injury as a child. In fact, to hear the tale told by the lawyer-Left that mobilized against the Bush administration’s post-9/11 law-of-war approach to counterterrorism, Qahtani’s mental defects may have been so profound that he was incapable of knowing involvement in the 9/11 plot. Of course, that was not the impression that Inspector Melendez-Perez got. After being turned away in Orlando, moreover, Qahtani was deft enough to make his way to al-Qaeda’s haunts in Afghanistan in time for the post-9/11 U.S. invasion. In late 2001, he was captured with other jihadists fighting along the Pakistani border. He was soon shipped to Gitmo and had been there ever since, until his repatriation this week.
Notwithstanding the strident, years-long national debate about detaining enemy combatants at Gitmo, the reaction to Qahtani’s transfer to Saudi Arabia has been muted. The Biden administration was required to give lawmakers 30 days’ notice before shipping Qahtani out, under a law enacted by a then-Republican-controlled Congress to derail the Obama–Biden administration’s effort to shutter Gitmo. Three Republican senators — James Inhofe (Okla.), Jim Risch (Idaho), and Marco Rubio (Fla.) — objected in a letter to Biden, expressing the obvious concern that Qahtani would resume terrorist activities. Congressman Mike Rogers (R., Ala.), ranking member on the House Armed Services Committee, inveighed that Qahtani’s transfer would be “an appalling capitulation to the far left.”
These protests did not gain much traction, however, nor move administration officials. The only minor drama surrounding the transfer — indicative of the hash that President Biden has made of relations with Saudi Arabia (which has been on display in various ways this week) — was that the Saudi government refused to retrieve Qahtani, which would be the normal process. It did, however, accept him after our government airlifted him out of Gitmo on Sunday.
Clearly, Qahtani’s release did not cause a stir because of (a) embarrassment about the inhumane treatment to which he was subjected in the early months of his detention, undermining any hope of prosecuting him for his role in the 9/11 conspiracy, and (b) the enduring lack of a plan to deal with the vexing challenge of jihadist detainees who cannot be tried but have been assessed too dangerous to be released.
In a normal prosecution, Qahtani would have been a defendant in the 9/11 conspiracy. Whether he could have been included in the military commission prosecution of the 9/11 terrorists (still plodding interminably along after all these years) is an interesting question, given both the lingering controversy over whether conspiracy is prosecutable as a war crime and Qahtani’s lack of hands-on participation as a “muscle hijacker” — the role he was to have played. But all of that is academic at this point. It is entirely possible that Qahtani’s mental-health problems have been exaggerated. Still, concerns about his mental state, coupled with his harsh treatment — described as “torture” not only by the media-Democrat complex, but also by other government officials — made the notion of prosecuting him untenable. As the New York Times reported last month:
Hour-by-hour logs leaked to Time magazine showed military interrogators placed Mr. Qahtani in solitary confinement, stripped him naked, forcibly shaved him, and subjected him to prolonged sleep deprivation, dehydration, exposure to cold, and various psychological and sexual humiliations like making him bark like a dog, dance with a man and wear women’s underwear on his head. They extracted a confession, which he later recanted.
Qahtani’s treatment led Susan Crawford, the Bush-appointed military convening authority for the commission trials, to decline prosecution in 2008. Crawford later told the Washington Post:
We tortured Qahtani. His treatment met the legal definition of torture. And that’s why I did not refer the case [for prosecution]. . . . The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge.
I do not intend to revisit the years of debate over whether what the Bush administration gingerly described as “enhanced interrogation” amounted in several instances to the abomination of torture, as the Left maintains. For purposes of the criminal law, what really matters is whether a detainee has been coerced — i.e., whether his will was overborne. Coercion need not be close to torture to make any resulting confession inadmissible.
In Qahtani’s case, assuming that prosecutors must have known there was no chance of introducing any statements he’d made under interrogation, there remained even more fundamental problems: First, whether he was mentally fit to stand trial (I do not take seriously the claim that he may have been too mentally incapacitated to conspire); second, assuming for argument’s sake that he was fit, whether it would have been appropriate to charge him — an exercise of discretion that must consider not only what fairness calls for but also whether, as a practical matter, a fact finder would convict him under the circumstances.
On that score, Qahtani’s mental health was the subject of several analyses over the years, some proffered by his defense lawyers, others ordered by courts and other officials. In addition to the alleged traumatic injury in childhood, one examining psychiatrist concluded, from scrutinizing Saudi records, that he’d been found to be schizophrenic, leading to what the Times described as an “acute psychotic break.” These findings were later endorsed by a Navy doctor (although that doctor is an anesthesiologist, and though he specializes in trauma and critical care, his expertise regarding psychiatric conditions is not clear to me). Meanwhile, the Times reports that, according to court documents, Qahtani “has refused psychotropic medication and in recent years repeatedly tried to kill himself, including by hanging, cutting and swallowing broken glass.”
We may realistically assume that the claims about Qahtani’s deteriorating mental health may be inflated. Presumably, that is why, even in approving his transfer, the multiagency government panel that reviews cases of uncharged Gitmo detainees acknowledged that Qahtani continues to present “some level of threat in light of his past activities and associations.” And I am highly skeptical about programs that purport to wean jihadists off their beliefs and violent proclivities, whether run by the Saudi government or others. All that said, though, the record in Qahtani’s case indicates that the decision that he should not, and probably could not, be charged was not lightly made and was amply supported
That brings us to a challenge more pressing than Qahtani’s individual case. The laws of war were invoked following 9/11 for sound reasons, not as a pretext for avoiding the civilian justice system. But the laws of war are just that, laws. They are supposed to be honored. They hold that, while enemy combatants may be detained until the conclusion of hostilities, they must be either released or charged with crimes — whether war crimes or civilian penal offenses — once the war is over. There is no law that authorizes our government to hold a person ad infinitum because he is believed to be dangerous — even very dangerous.
So, is the war over? Sure sounds like it when President Biden addresses the subject. As unconscionably reckless as his withdrawal of our last forces from Kabul was, Biden insists the debacle was worth it because it marked “the End of the War in Afghanistan” — as he described it in his speech at the time. This echoed President Obama, who similarly pulled American military personnel out of Iraq, and who often insisted that the war was over — or at least fading into irrelevance — once U.S. forces killed al-Qaeda leader Osama bin Laden in 2011.
Yet, to hear government officials tell it, the war is over . . . except when it’s not. They are still relying on arguably obsolete congressional authorizations of military force, not merely to detain terrorists who have not been charged, but to conduct combat operations against active terrorists — even in countries against which the U.S. is not at war, and even if the terrorists are attached to jihadist factions that did not exist when the post-9/11 congressional authorizations went into effect.
There are still over three dozen jihadists detained at Gitmo. They are still being held at this point only because there are well-founded concerns that they could return to anti-American terrorist activities if released. Half of them are nationals of countries, such as Yemen and Somalia, that are so unstable that it would be irrational to believe repatriated jihadists would be effectively monitored. At least seven remaining detainees will never be charged, and the way the highly erratic military commissions have gone, who knows how many of those who have been charged will ever actually be prosecuted to conclusion? And what happens to any jihadists who end up being acquitted — do we just let them go?
Qahtani’s repatriation returns tough questions to the fore: Is the war over? If it is, what are we going to do about detainees who cannot be tried? And if it isn’t, when are we going to address outdated congressional authorizations of the use of military force so that the government’s power to wage war is tailored to the war as it currently exists? We need answers. It’s been over 20 years, and these questions are not going away.