A September 11 Stand-in

By JOANNE MARINER

Monday, Mar. 27, 2006

The government has rested its case against Zacarias Moussaoui, accused of responsibility in the September 11 terrorist attacks. As family members of September 11 victims watched, some via closed circuit television at federal courthouses in New York, Boston, Newark, and elsewhere, prosecutors last Friday presented the final pieces of the evidence that they say justifies sentencing Moussaoui to death.

Moussaoui is the only person charged by the U.S. for the attacks that killed nearly 3,000 people. The September 11 families view his sentencing hearing as perhaps their only chance to obtain justice.

Yet Moussaoui did not participate in the attacks nor -- even by the government's version of events -- did he organize, plan or fund them. A bit player at most, he was already in U.S. custody on immigration charges by September 11.

While the 9/11 families are left with this rather pale facsimile of justice, others far more implicated in the September 11 attacks have been kept away from any court. Khalid Sheikh Mohammed, whom the 9/11 Commission called "the principal architect of the 9/11 attacks," is being held in secret CIA detention, as is Ramzi bin al-Shibh, accused of being the operation's paymaster.

The scandal of the Moussaoui prosecution is that it is the September 11 trial by default. The men who truly merit prosecution for the 9/11 attacks, if the accusations against them are true, are escaping justice.

Conspiracy, Arrest, Detention

It was sometime in mid-1996 that Mohammed, who holds Pakistani citizenship, is believed to have outlined the plan that would eventually develop into the September 11 attacks. He has also been linked to the 2000 bombing of the USS Cole; Richard Reid's failed 2001 attempt to blow up an aircraft; and the 2002 bombings of a synagogue in Djerba, Tunisia.

Bin al-Shibh, from Yemen, was allegedly to be a pilot in the September 11 attacks, but he was unable to obtain a U.S. visa. Barred from direct participation in the operation, Bin al-Shibh is believed to have taken on the role of coordinating communications and funding.

On the one-year anniversary of the attacks, Bin al-Shibh was reportedly captured in Karachi, Pakistan. Mohammed was reportedly captured the next March in a raid in Rawalpindi, Pakistan. Both men were transferred into U.S. custody without extradition proceedings, and imprisoned, without trial, in secret locations abroad.

Leaked accounts of the two men's treatment tell of torture and other abuse. Information is scanty, since the two are being held incommunicado, but Mohammed, in particular, has reportedly been subject to water-boarding. That notorious torture technique, a variation on methods used by Latin American dictatorships in the past, involves making a person believe he is drowning.

A secret August 1, 2002, Justice Department memorandum provides some insight into the men's treatment. Drafted in response to a CIA request for guidance, the memo says that torturing al-Qaeda detainees in captivity abroad "may be justified," and that international prohibitions on torture may be unconstitutional if applied to interrogations in the war on terrorism. The administration only disavowed this view in June 2004, after the memo came to light.

Besides likely being subject to torture, the two men have also been effectively "disappeared." With no trials, no access to lawyers, and, indeed, no legal process at all, the men are being held in a legal black hole.

Their only attenuated connection to the justice system has been via the Moussaoui trial. Although Moussaoui acknowledges al Qaeda membership, he denies any responsibility for September 11. He claims, as well, that both Mohammed and al-Shibh could attest to his lack of involvement.

It is for this reason that the September 11 families will soon have the bizarre experience of hearing the two detainees' words without ever seeing their faces. Mohammed and bin al-Shibh will not themselves appear in court, but Moussaoui's defense lawyers are planning to have people recite testimony purportedly given by the two during their time in detention.

Evading Justice

A fair and public trial of Mohammed and bin al-Shibh would have been a powerful counterpoint to the lawlessness of the September 11 attacks. The trial would have promoted justice, reaffirmed America's reputation as a country of laws, and given comfort to the 9/11 families.

But having wrongly subjected them to "disappearance" and by credible accounts torture, the government is now unwilling to bring them before a judge. This does a great disservice to those seeking justice for the victims of 9/11.


Joanne Mariner is a human rights attorney based in New York. Her previous columns on the "war on terror," the Moussaoui case, and the indefinite detention of terrorist suspects are available in FindLaw's archive.