Despite 9/11 Accused Being Mentally “Unfit To Stand Trial,” Biden Refuses Plea Deal That Would Provide Mental Health Care, As Required By International Law

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By Andy Worthington, September 25, 2023

In startling news from Guantánamo three days ago, Air Force Col. Matthew McCall, the judge in the military commission case against the five men accused of involvement in the terrorist attacks of September 11, 2001, ruled that one of the men, Ramzi bin al-Shibh, is, as the Associated Press described it, "unfit for trial" after a medical panel found that "torture left him psychotic" — or "lastingly psychotic," as the article’s opening line stated.

Bin al-Shibh, 51, a Yemeni, was 30 years old when he was seized in a house raid in Karachi, Pakistan on September 11, 2002, the first anniversary of the 9/11 attacks. He was subsequently held for four years in CIA "black sites" around the world — including Morocco, Poland, Romania and a "black site" that existed in Guantánamo in 2003-04 — before his final transfer to Guantánamo in September 2006, with 13 other "high-value detainees," including the other four men accused of involvement in the 9/11 attacks.

After an abortive attempt, in 2008, to prosecute the five men in the military commissions under President Bush, and a subsequent commitment, in November 2009, to prosecute them in a federal court in New York, which was abandoned after a Republican backlash, the five were charged in a revived military commission system in May 2011.

From the beginning, bin al-Shibh's lawyers argued that he may have been "unfit to stand trial," as Human Rights Watch explained in a briefing at the time, adding that the lawyers had "asked that the proceedings against him and his four co-accused be stayed until his mental state [was] determined," noting that he had been "prescribed psychotropic drugs of the sort that are used to treat schizophrenia."

Nevertheless, the men were arraigned in May 2012, and pre-trial hearings began in October 2012, although they have been caught up ever since in a kind of "Groundhog Day" of thwarted justice, as the defense teams — correctly — have been struggling to establish the full details of the torture to which their clients were subjected, while prosecutors have been working assiduously to keep it hidden.

The Sanity Board’s report about bin al-Shibh’s mental incompetence to stand trial

Shamefully, it took until April this year for the latest judge in the 9/11 pre-trial hearings — Air Force Col. Matthew McCall, who took the job in July 2019 — to accept bin al-Shibh’s defense team’s arguments about the need for his mental competence to be evaluated. On April 14, he ordered an Inquiry into the Mental Capacity of the Accused Under RMC 706, Rule 706 of the Manual for Military Commissions, which was established as part of the Military Commissions Act of 2009.

RMC 706 states that, "If it appears to any convening authority who considers the disposition of charges, or to any trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the authority authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule."

Col. McCall’s order was subsequently approved by the military commissions’ Convening Authority on May 3, and an RMC 706 Sanity Board subsequently convened on June 6, to inquire into bin al-Shibh’s "mental capacity to stand trial."

On August 24, the Sanity Board, which is part of the DoD’s Defense Health Agency Center for Forensic Behavioral Sciences, based in Bethesda, Maryland, reached the following findings.

In response to the question, "Is Mr. bin al Shibh presently suffering from a mental disease or defect?," they stated, "Yes," and in response to the question, "What is the clinical psychiatric diagnosis?," they stated that "[t]he clinical psychiatric diagnosis most accurately reflecting the accused's presentation" is "Posttraumatic Stress Disorder (PTSD), with Secondary Psychotic Features," while "[t]he clinical psychiatric diagnosis strictly conforming to the Diagnostic and Statistical Manual of Mental Disorders, accounting for the accused's symptoms," is "Posttraumatic Stress Disorder (PTSD)" with "Delusional Disorder, Persecutory Type."

In response to a third question, "Is Mr. bin al Shibh presently suffering from a mental disease or defect rendering him unable to understand the nature of the proceedings against him or cooperate intelligently in his defense?," they also stated, "Yes."

Responding to the ruling, David Bruck, bin al-Shibh's lead defense attorney, told reporters that the decision marked "the first time that the United States has formally acknowledged that the CIA torture program produced profound and prolonged psychological harm," adding that this was "exactly what the CIA promised would not happen."

As the AP report stated, bin al-Shibh has complained since his transfer to Guantánamo "that his guards were attacking him, including by invisible rays, so as to deprive him of sleep and cause him pain." In my analysis above, I noted the complaints from his lawyers about his mental health from the moment he was first charged in May 2011, but it is also noticeable that, in his ruling, Col. McCall noted that "psychological reports dating back at least to 2004 had documented al-Shibh’s mental issues."

As David Bruck told Col. McCall at a hearing before he delivered his ruling, his client’s "overwhelming focus on trying to stop the invisible attacks, and his insistence that his defense lawyers do the same, rendered him incapable of meaningfully taking part in his defense."

Bruck also told the judge that bin 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" had led to his "lasting belief that his American guards were still conspiring to deprive him of sleep."

As a result of the ruling, bin al-Shibh’s case has now been severed from that of the other four men, leaving him in what the academic Lisa Hajjar, on X (formerly Twitter), called "uncharted territory" in terms of his treatment.

At last week’s hearing, as the AP described it, David Bruck "indicated … 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." He added that "PTSD treatment would offer the best hope of al-Shibh ever regaining competency to stand trial," also pointing out that "the forced sidelining of the U.S. case against [him] would be 'an opportunity for the country to come to account on the harm' done by what he called the CIA’s 'program of human experimentation.'"

Unfortunately, although Bruck is undoubtedly correct to indicate that treatment for PTSD might help bin al-Shibh, it is also noticeable that, for 17 years, since his arrival at Guantánamo, the U.S. government has conspicuously failed to provide him with adequate mental health treatment, despite its internationally recognized obligation to do so, which, by any objective measure, has either significantly contributed to, or is entirely responsible for his mental incompetency, as found by the DoD’s own Sanity Board.

The significance of the U.N. Special Rapporteur’s devastating report about Guantánamo

In February, Fionnuala Ní Aoláin, the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, became the first U.N. Rapporteur to visit Guantánamo in February, and in her subsequent devastating report, issued in June, she specifically noted that "the U.S. Government’s failure to provide torture rehabilitation squarely contravenes its obligations under the Convention against Torture."

In a long and damning paragraph about the specific details of the U.S. government’s failures, she stated that she was "gravely concerned by the failure of the U.S. Government to provide torture rehabilitation programs," and was particularly scathing about the "specialist care and facilities" that "are not adequate to meet the complex and urgent mental and physical health issues of detainees, including permanent disabilities, traumatic brain injuries, chronic pain including headaches and chest, stomach, back, rectal, and joint pains, gastrointestinal and urinary issues, complex and untreated post-traumatic stress disorder, and other current physical and psychological manifestations of torture and rendition after 9/11, as well as the cumulative and intersectional harms arising from continued detention, deep psychological distress, deprivation of physical, social, and emotional support from family and community while living in a detention environment without trial for some and without charge for others for 21 years, hunger striking and force-feeding, self-harm and suicidal ideation, and accelerated aging."

While the Special Rapporteur’s damning conclusion was that numerous factors, including the failure to "provide any torture rehabilitation to detainees," meant that the current situation at Guantánamo "amounts to ongoing cruel, inhuman, and degrading treatment," and "may also meet the legal threshold for torture," the Biden administration’s only reply was a curt and insulting one-page response, in which, amongst other claims dismissing the findings, Michèle Taylor, the U.S.’s Permanent Representative to the U.N. Human Rights Council, alleged that the men still held at Guantánamo "receive specialized medical and psychiatric care."

The case for plea deals, and President Biden’s shameful rejection of the conditions requested

In fact, both Taylor and the Biden administration have failed to take on board a recognition by prosecutors in the 9/11 case that the use of torture has so severely impacted the credibility of the commissions that the only way forward involves plea deals, in which, in exchange for guilty pleas, the death penalty is taken off the table, and the 9/11 co-accused have been able to put forward their own requirements for a deal that they find acceptable.

The trigger for the prosecutors’ belated recognition of the irredeemably broken nature of the trials was, apparently, the statement that Majid Khan, who accepted a plea deal in 2012, relating to his role as a courier for Al-Qaeda, was allowed to make in October 2021 (see here and here), in which, while apologizing profusely and unconditionally for his involvement in terrorism, he also described the torture to which he was subjected, in such harrowing detail that seven of the eight military jurors submitted a hand-written letter calling for clemency, describing his torture as "a stain on the moral fiber of America," and comparing it to the types of torture "performed by the most abusive regimes in modern history."

In March 2022, prosecutors in the 9/11 case began negotiations regarding a possible plea deal, in which, as the New York Times explained three weeks ago, the five co-accused "sought a civilian-run program to treat sleep disorders, brain injuries, gastrointestinal damage or other health problems" associated with their torture, and "assurances they would not serve their sentences in solitary confinement and could instead continue to eat and pray communally — as they do now."

Unfortunately, as the Times report also explained, two administration officials, speaking anonymously, told the newspaper that, on the eve of the 22nd anniversary of the 9/11 attacks, President Biden had rejected the "list of proposed conditions," referred to in court filings as the "joint policy principles."

According to the officials, President Biden "adopted a recommendation by the defense secretary, Lloyd J. Austin III" not to accept the "joint policy principles," with one official stating that the president "did not believe the proposals, as a basis for a plea deal, would be appropriate," while the other "cited the egregious nature of the attacks."

As the Times added, although a plea deal "remains on the table," the president’s "decision to reject additional conditions lessens the likelihood of reaching such a deal."

This is profoundly disappointing, because, although it was obviously always going to be a hard sell persuading numerous Americans that a negotiation preventing the men from being held in solitary confinement was an acceptable part of a plea deal, the refusal to accept the "joint policy principles" also means that the U.S. government continues to deprive the men of the torture rehabilitation that the government is required to provide under the U.N. Convention against Torture, the "specialized medical and psychiatric care" that Michèle Taylor claimed they receive, but which the Special Rapporteur found to be non-existent.

Unless the government implements an appropriate program of care, it seems likely that the U.N.’s Special Mandates will be required to continue issuing damning reports and opinions about their failures, while lawyers for other men charged in the 9/11 case will step up their entirely justifiable efforts to have their clients excluded from any trial proceedings, because of the egregious effects of torture that they also experienced — in particular, Ammar al-Baluchi, who experienced brain damage, and Mustafa al-Hawsawi, who is physically disabled because of the anal rape to which he was subjected.

President Biden’s decision also confounds the hard work undertaken by prosecutors over the last year and a half, whereby the chief prosecutor, Rear Adm. Aaron C. Rugh, and his team, have been meeting with family members of 9/11 victims to explain, as the Times described it, that "a guilty plea achieves 'judicial finality,' or 'judicial certainty' because a prisoner who pleads guilty gives up the right to appeal, among other things, the legitimacy of the court or the conviction."

As the Times added, "Prosecutors had been explaining the mechanics of admitting guilt in court proceedings in exchange for life sentences in meetings with small groups of family members in New York, Boston and Florida since at least May." They also "sent out a two-page letter to reach a wider group last month," in which they wrote that "[i]t cannot be overstated that a guilty plea is conclusive evidence of guilt."

In conclusion, then, it is, to be blunt, profoundly dispiriting that all of the above now looks to be derailed as the result of an inability by Republicans and the right-wing media to accept that a successful trial is impossible because of the CIA’s use of torture, and also because the Biden administration cannot accept that the men in question must be allowed any kind of useful leverage for themselves.

Apart from anything else, Biden’s capitulation fails to recognize that a plea deal via the "joint policy principles" is particularly convenient for the CIA, because it removes any kind of judicial reckoning for the torture program.

Has the CIA, I wonder, weighed in on this, or is their position still what those of us watching closely have presumed for many years: that, to prevent disclosure of the details of the torture program, it is better from the CIA’s perspective if trials never proceed, and those accused simply wither away and die at Guantánamo, whenever that occurs, without anything resembling justice ever having been delivered.

President Biden should think again about his options. Trials are clearly impossible, but consigning men to a slow death at Guantánamo without even providing them with the medical and psychiatric care they need is also untenable. Some boldness is clearly required, which involves more than recklessly kicking the case into the long grass and hoping for the best.

POSTSCRIPT: The Special Rapporteur’s report about Guantánamo, and the ruling by Col. McCall, following the Sanity Board’s findings about Ramzi bin al-Shibh’s mental health, are not the only devastating opinions and rulings that, this year, have thoroughly undermined any efforts on the part of the Biden administration to shore up the shattered legitimacy of the military commissions.

In May, the U.N. Working Group on Arbitrary Detention condemned the U.S. government for the arbitrary detention, over the last 20 years, of Abd al-Rahim al-Nashiri, who is also caught up in endless pre-trial hearings regarding his alleged involvement in the bombing of the USS Cole in 2000. The Working Group noted a medical expert’s assessment of him as "one of the most severely traumatized individuals I have ever seen," called for his release, and, in addition, stated that, "Under certain circumstances, widespread or systematic imprisonment or other severe deprivation of liberty, in violation of international law, may constitute crimes against humanity."

Then at the end of August, al-Nashiri’s trial judge, Col. Lanny Acosta, Jr., dealt a huge blow to the viability of his case by ruling that self-incriminating statements that he made after his arrival at Guantánamo from the CIA "black sites" to a so-called "clean team" of non-CIA interrogators were inadmissible because it was impossible for him not to have still been suffering from the effects of torture, and of the "conditioning" that accompanied it. As the men accused of involvement with the 9/11 attacks were also subjected to "clean team" interrogations, the judge’s ruling in al-Nashiri’s case, wiping out what was apparently a key element in the case against him, may also have dealt a major blow to the 9/11 case.

And finally, at the end of March, a number of Rapporteurs and Working Groups condemned the U.S. government for its treatment of Abd al-Hadi al-Iraqi, another "high-value detainee," who agreed to a plea deal last year. Al-Iraqi, who has a degenerative spinal condition, is Guantánamo’s most physically disabled prisoner, but, as the experts noted, the healthcare services at Guantánamo have been, and remain entirely inadequate for dealing with his complex and critical needs.

All of the above, of course, only highlights how necessary it is for the Biden administration to provide the men still held at Guantánamo with the "specialized medical and psychiatric care" that they need, and which, in the plea negotiations, was specifically requested by the 9/11 co-accused.