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.
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 Harbor, 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.
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 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 2976 people on September 11, 2001. Al-Qaida attackers commandeered commercial aircraft and flew them into the World Trade Center, the Pentagon and, when passengers thwarted one attack, a field in Pennsylvania
The Associated Press monitored the military commission’s hearings in Cuba via a relay provided by the Pentagon.
The five defendants are being prosecuted jointly. Wednesday was the first time in more than a year the men were in the Guantanamo commission room together.
Bruck pointed to what he said was al-Shibh’s solitary confinement over four years in detention at CIA black sites, and torture that included his being forced to stand sleepless for as long as three days at a time, naked except for a diaper and doused with cold water in air-conditioned rooms, for the man’s lasting belief that guards at Guantanamo were subjecting him to unseen attacks to deprive him of sleep.
Prosecutor Clayton Trivett and the judge acknowledged what they said were the man’s persistent demands for an end to the invisible attacks over the years. Bruck estimated that al-Shibh’s defence team spent as much as 90 per cent of its time dealing with al-Shibh’s mental challenges and trying to show him it was taking his complaints of invisible attacks seriously.
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, defence 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 programme 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.
A Senate investigation concluded what the administration called “enhanced interrogation” was ineffective at obtaining information. The CIA had stopped the abusive program by 2007, the investigation found.
A CIA spokeswoman did not immediately respond to a request for comment about the 9/11 defendant’s diagnosis.
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 with many factual and legal assertions” but it will carefully review her recommendations.
