Can the ‘20th hijacker’ of Sept. 11 stand trial?

Here the law enforcement agents had their only internal disagreement. Col. Mallow, the commander, initially took the position that they could watch the intelligence interrogations, to collect information, and perhaps to deter abuses. After all, the secretary of defense had authorized these tactics. Fallon, his deputy and chief investigator, said he would resign from the law enforcement task force — and the Navy if necessary.

"You’re talking illegal acts here," Fallon said. "The secretary of defense can’t change the law. One of the things that we told all our personnel was the fact that during Nuremberg, Nazi war criminals were actually tried for acts that were perpetrated by them under orders of their superiors."

Col. Mallow said Fallon quickly persuaded him and, on Dec. 16, the colonel ordered his agents to disengage from any inhumane interrogation, to document what they saw, and to report it.

Gen. Miller was displeased, Col. Mallow recalls, saying, "You either are with us or you and your guys are out."

The general does not deny saying this. He said he inherited a situation where the two teams of interrogators "weren’t even speaking to one another, and it was unproductive," with two teams duplicating each other.

Still the investigators were unwilling to observe the aggressive interrogations. David L. Brant, the boss of Fallon and Gelles as the director of the Naval Criminal Investigative Service, said he told the Army, "if there's anything that's beyond the boards, we'll just pull our people out." Air Force cops on the task force, from the Office of Special Investigations, said they would go along with a Navy walkout. Finally everyone agreed that the law enforcement investigators would not be forced to watch the intelligence interrogations.

Although they had built a wall separating themselves from the intelligence side, the law enforcement agents knew they had failed to persuade the Pentagon that rapport-building would be more effective than abusive interrogations.

'Put on the same uniform'

They turned back to the Navy for help. On Dec. 17, director Brant from the Naval Criminal Investigative service took the concerns to Alberto J. Mora, the chief lawyer for the Navy.

U.S. Navy Alberto J. Mora, former general counsel of the U.S. Navy, opposed the abusive interrogations.

Mora, whose family had escaped Cuba under Castro, says the interrogation tactics shocked him, reminding him of the internment of Japanese citizens during World War II. While he worked on Pentagon lawyers, he recommended that the investigators take one more shot at persuading the leadership at Guantanamo.

So Fallon, the cop, and Gelles, the psychologist, flew down to see Gen. Miller. They took along a Secret Service expert on threat assessment. In Miller's office, the three cops described the rapport-building approach, how it had worked in terrorism cases, the USS Cole bombing, the embassy bombings in East Africa, even in preventing assassination attempts. The general was unmoved.

"If you want to be on the team," Fallon and Gelles said Gen. Miller told them, "you’ve got to put on the same uniform." The general says that’s a fair description of his reply.

Back in Washington, Mora, the Navy lawyer, resorted to an ultimatum. On Jan. 15, 2003, he prepared a draft memorandum opposing the techniques as clearly illegal, addressed to his boss, general counsel Haynes, as well as to the legal adviser to the Joint Chiefs of Staff. Mora said he would be signing the memo at the end of the day. Before he could sign,  Haynes told him that Rumsfeld would stop the aggressive interrogations.

It was true, to a point. Rumsfeld rescinded his blanket approval of the harshest techniques. Rumsfeld then asked a group of lawyers at Justice and the Pentagon to come up with new limits. According to Mora, this group relied heavily on a Justice Department memo, later withdrawn, justifying cruel, inhuman and degrading treatment. In March 2003, Rumsfeld secretly re-authorized 24 techniques, mostly confined to those in the Army Field Manual but also allowing isolation, "environmental manipulation," "sleep adjustment," and threats to send the detainee to a country allowing torture. The new policy required "humane treatment," but did not define it.

'Unanswered questions'

Mora, now the vice president and general counsel for international operations for Wal-Mart, found out about Rumsfeld’s reauthorization a year later, watching a congressional hearing on C-SPAN about Abu Ghraib.

"We may have stopped some abuse on the Department of Defense side," Mora said, "but it's clear we had no effect on the national policy, meaning the White House policy, to inflict cruelty on some individuals."

Although the Pentagon has looked at specific allegations made by FBI agents of abusive interrogations, no investigation has untangled how the policy of aggressive interrogation was set, or who influenced it.

"The unanswered questions," Mora said, "are, how much of this was actually applied, what the level of abuse was, who the victims were, and who is responsible for the application of abuse, the cruel treatment? I think the historical record will indicate shifting responsibility for these abuses. … You've got some abuse that was inflicted as a result of authorizations by the command authority, some from a lack of leadership, suggesting that unlawful combatants could be treated more harshly than POWs, and some from rogue soldiers who have sadistic streaks."

The Bush administration has said that there was no policy to abuse detainees, although some detainees were abused in individual cases, and that those responsible have been held accountable.

"What took place at Guantanamo," Rumsfeld said in January, "is a matter of public record today, and the investigations turned up nothing that suggested that there was any policy in the department other than humane treatment. And it is also clear, by the very fact that some 250 people have been punished in one way or another, that there was behavior that was inappropriate."

'An honest mistake'

The Army’s internal Furlow-Schmidt investigation of FBI allegations of detainee mistreatment found in April 2005 that Gen. Miller failed to monitor the interrogation of al-Qahtani, whose interrogation "resulted in degrading and abusive treatment but did not rise to the level of being inhumane treatment."

Pool / Reuters After the Abu Ghraib scandal broke, Secretary of Defense Donald H. Rumsfeld is briefed by Ma. Gen. Geoffrey D. Miller in Iraq.

The general told Army investigators that he was unaware of the extent of the techniques used on al-Qahtani, but they found that statement "inconsistent" with a letter he sent to his superiors on Jan. 21, 2003, saying that he approved the interrogation plan and that it was followed "relentlessly." "It is clear," the Army found, that the al-Qahtani intelligence interrogation team "believed they were acting within existing guidance."

In that letter, later unclassified in part, Miller wrote that the new techniques approved by Rumsfeld "are within the spirit and intent of humane detention. ... These techniques are not intended to cause gratuitous, severe physical pain or suffering or prolonged mental harm, but are instead intended to induce cooperation over a period of time by weakening the detainee's mental and physical ability to resist."

Beyond al-Qahtani, the investigators found that intelligence interrogators at Guantanamo had impersonated FBI agents and State Department investigators; played loud music with strobe lights (Metallica, Britney Spears and rap were often used); moved the detainees every few hours to disrupt sleep (called the "frequent flyer program"); wrapped a detainee’s head in duct tape to stop him from chanting passages from the Koran; and a female interrogator rubbed red ink on a detainee, and said, "By the way, I am menstruating." ("The detainee threw himself on the floor and started banging his head.")

Gen. Miller was recommended for administrative "admonishment" for failing to supervise the al-Qahtani investigation, but the Pentagon declined to impose the penalty. He was allowed to retire. As a condition of that retirement, he agreed to testify before the Senate Armed Services Committee, which is investigating the interrogations, but he has not yet been called.

"There were mistakes made," Miller told MSNBC.com. "I’ll be honest with you."

He said that many of the odd tactics tried on al-Qahtani were "authorized within the guidance" from Rumsfeld of Dec. 2, "but not within the plan" of specifics laid out by his staff at Guantanamo. In other words, individual interrogators were using techniques that he had not anticipated.

"One young, very young interrogator who put ladies’ panties on al-Qahtani’s head, that wasn’t authorized," Gen. Miller said. "We relieved that kid the next morning. It was a youngster who made an honest mistake."

'Unprosecutable'

Will Mohammed al-Qahtani, the suspected 20th hijacker, ever face trial?

The cops who directed the investigation, Col. Mallow and Fallon, said they were told several times by prosecutors in the Pentagon’s Office of Military Commissions, as the military trials are known, not to keep bringing forward a case against al-Qahtani, that there would be no case.

"The techniques made some detainees unprosecutable," Fallon said. "It would provide the defense counsel a tremendous advantage at trial to sway the presiding officer and members, as well as it would have disclosed those techniques to the public."

A Pentagon spokesman last week dismissed this as "speculation," but wouldn't say whether al-Qahtani would face a military trial, known as a commission. "The detainee you reference," Cmdr. Gordon said, "is not among those 10 already referred to military commissions." (See sidebar, In limbo: Cases are few against Gitmo detainees.)

Under the Military Commissions Act signed last week by President Bush, statements made under torture would not be admissible in a military trial.

But the law says a military judge could accept statements made under coercion. A court may have to decide which category, torture or coercion, encompasses such techniques as a fake trip to Egypt, sleep deprivation, and being forced to do dog tricks. The new law also extends legal protection from prosecution for war crimes to any U.S. personnel who used coercive tactics, if they believed in good faith that what they were doing was lawful.

Al-Qahtani's lawyer says she believes he'll never face trial, that eventually the government will have to transfer him back to Saudi Arabia.

"They can't just leave him in Guantanamo to rot and die," Gutierrez said.

******

In February 2004, just before the Abu Ghraib photos were released, Mark Fallon saw Gen. Geoff Miller one last time, on the tarmac at the Guantanamo airfield. Miller would soon go to Iraq full time, and Fallon was returning to the Naval Criminal Investigative service, where he directs the training academy.

The Washington Post A hooded Iraqi detainee at Abu Ghraib prison appears to be cuffed by the ankle to a door handle and made to balance on two boxes.

"I frankly was rather surprised because General Miller gave me a hug," Fallon said. "It was the first hug that I received from General Miller.

"And he actually had told me that we were right."

That’s true, Miller says.

"To be frank with you," the general says, "I got down there and saw that the rapport-building was more effective. We made significant progress as we moved along. I found the law enforcement techniques to be an effective way to go about doing business.

"But not the only way."

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