CIA abuse rendered 9/11 defendant unfit for trial: US military judge

A United States military judge at Guantanamo Bay has ruled one of the defendants in a case about the 9/11 attacks is unfit for trial, after a military medical panel found that sustained abuse had rendered him lastingly psychotic.

The judge, Colonel Matthew McCall, said the incompetency finding for Ramzi bin al-Shibh meant that the prosecution of his four co-defendants would continue without him. Al-Shibh remains in custody.

McCall issued his ruling late on Thursday. Pre-trial hearings for the remaining defendants resumed Friday in a military courtroom at Guantanamo, the US naval base in Cuba. No trial date has been set for the case, which has been slowed by logistical problems, high turnover and legal challenges.

Originally from Yemen, al-Shibh is accused of organising one cell of the 19 hijackers who commandeered four commercial planes to carry out attacks on September 11, 2001, killing nearly 3,000 people in New York, Washington and Pennsylvania. The attacks were the deadliest of their kind on US soil.

Brett Eagleson, whose father Bruce Eagleson was killed when one of the hijacked planes destroyed the south tower of the World Trade Center, called the events that forced the sidelining of al-Shibh’s prosecution “another example of the lack of justice that the 9/11 community has received at the hands of our own government”.

“They wrongfully tortured these individuals. We don’t stand for torture. Because of that, we’re denied a trial. We’re denied true justice,” said Eagleson, who leads a group of victims’ families pushing the US to release more documents about its investigations into the attacks.

The attacks, and the US response to them, altered the course of history and the lives of countless people around the world.

They led the administration of then-US President George W Bush to take extraordinary steps in what it called a “war on terror”: invading Afghanistan and Iraq, setting up a programme of interrogation and detention through the Central Intelligence Agency (CIA), and creating the special prison and military commission at Guantanamo.

A military medical panel last month diagnosed al-Shibh as having post-traumatic stress disorder (PTSD) with secondary psychosis, and linked it to his torture and solitary confinement during his four years in CIA custody immediately after his 2002 arrest.

Al-Shibh has complained for years since his transfer to the US naval base at Guantanamo Bay that his guards were attacking him, including through invisible rays, so as to deprive him of sleep and cause him pain. McCall’s ruling noted that psychological reports dating back at least to 2004 documented al-Shibh’s mental issues.

Defence lawyer David Bruck told McCall in a hearing on Tuesday that al-Shibh’s overwhelming focus on trying to stop the invisible attacks — and his insistence that his lawyers do the same — rendered him incapable of meaningfully taking part in his defence.

Bruck pointed to what he said was torture that included being forced to stand sleepless for as long as three days at a time while being naked, except for a diaper, and doused with cold water in air-conditioned rooms.

Those conditions, Bruck alleged, led to al-Shibh’s lasting belief that guards were still conspiring to deprive him of sleep.

Bruck indicated in Tuesday’s hearing that al-Shibh would be expected to remain in custody while court officials waited for him to become mentally competent again — if that ever happens.

Defence attorneys and a United Nations-appointed investigator have argued that the five 9/11 co-defendants should be given physical and psychological care for the lasting effects of the torture they underwent while in CIA custody.

Bruck told Judge McCall in Tuesday’s hearing that PTSD treatment would offer the best hope for al-Shibh ever regaining competency to stand trial.

He said the incompetency ruling would be “an opportunity for the country to come to account on the harm” done by what he called the CIA’s “programme of human experimentation”.

Reached by phone on Friday, Bruck said the judge’s ruling was the first time the US government had acknowledged that “the CIA torture programme did profound and prolonged psychological harm to one of the people subjected to it”.

The five 9/11 defendants were variously subjected to repeated waterboarding, beatings, violent repeated searches of their rectal cavities, sleep deprivation and other abuse while at so-called CIA black sites.

The CIA says it stopped its detention and interrogation programme in 2009. A Senate investigation concluded the abuse had been ineffective in obtaining useful information.

US President Joe Biden this month declined to approve post-trauma care when defence lawyers presented it as a condition in plea negotiations. The administration said the president was unsettled by the thought of providing care and ruling out solitary confinement for the 9/11 defendants, given the historic scale of the attacks.

“Of course, it’s not popular” among Americans, Bruck said Friday. “Enforcing human rights, the most fundamental human rights, is often not popular. But we should do it.”