In relation to US President Barack Obama’s new preventative detention proposal, the Washington Post today ran a story which claimed that al-Qaeda leader Khallad bin Attash could not be tried in a US court and must therefore be kept in preventative detention. Quote:
Tawfiq bin Attash, who is accused of involvement in the bombing of the USS Cole in 2000 and who was held at a secret CIA prison, could be among those subject to long-term detention, according to one senior official.
Little information on bin Attash’s case has been made public, but officials who have reviewed his file said the Justice Department has concluded that none of the three witnesses against him can be brought to testify in court. One witness, who was jailed in Yemen, escaped several years ago. A second witness remains incarcerated, but the government of Yemen will not allow him to testify.
The Booman Tribune took at shot at debunking this, but, while it makes a lot of good points, missed some things out and mistakenly claimed the al-Qaeda communications hub in Yemen only fell under surveillance in 1998 (actually, 1996).
I know there is a mountain of evidence linking bin Attash to al-Qaeda in general and the Cole bombing in particular, so I will try to list it here. Evidence linking bin Attash to al-Qaeda is marked with a letter, evidence linking him to the Cole bombing is numbered. Evidence that can only be sourced to detainee interrogations possibly using torture is omitted.
(a) Bin Attash made a martyrdom video with one of the embassy bombers, Mohamed al-Owhali, before the attack. This is captured in an FBI 302 of an interview with al-Owhali, and could be testified to by al-Owhali, who is in Colorado, or one of the relevant FBI agents, such as Stephen Gaudin, who testified at the embassy bombing trial.
(1) A cryptic redacted passage in the 9/11 Congressional Inquiry report indicates that bin Attash called al-Qaeda’s operations center in Yemen, which played an integral role in the Cole bombing, in the summer of 1999. The Cole bombing was preceded by the failed bombing of the USS The Sullivans in Aden in January 2000.
(2) Five days before the attack on The Sullivans, bin Attash called al-Qaeda’s operations hub in Yemen. He arranged to meet Almihdhar and Nawaf Alhazmi in Malaysia 2 days after the scheduled attack. This call was intercepted by the NSA and the US intelligence community mobilised to monitor the summit attendees. There must be NSA reports about this call, as well as a transcript and a recording.
(c) Bin Attash then took casing flights in Asia to check out airline security (when the cockpit doors open in flight, etc.). We only know about this because of his tortured confessions, but his presence on the flights should be confirmable through airline information.
(4) Bin Attash then attended al-Qaeda’s Malaysia summit, where he and other al-Qaeda leaders were monitored by Malaysian intelligence, and the results passed to the CIA. The summit was also attended by al-Qaeda leaders Hambali, Abd al-Rahim al-Nashiri and alleged 9/11 mastermind KSM, who are in US custody, as well as Yazid Sufaat, a Malaysian who is now reportedly free. Bin Attash was photographed and maybe videotaped at the meeting. We don’t know what was discussed at the meeting, but the likelihood the failed attack on The Sullivans was on the agenda is high.
(5) While at the meeting, bin Attash was monitored making a call from a payphone in Kuala Lumpur to a hotel in Bangkok, Thailand, where two of the Cole bombers (including Fahad al-Quso, who was subsequently interviewed by the FBI in Yemen) were staying. There was also a call between al-Quso’s home in Yemen and the hotel in Bangkok.
(6) Bin Attash then flew with Almihdhar and Nawaf Alhazmi to Bangkok under an alias and checked in at the same hotel as the two Cole bombers. This can be proved from the hotel records and the FBI documentation of its interviews of al-Quso in 2000 and 2001.
(7) Al-Quso was arrested in Yemen after the bombing and confessed to meeting bin Attash in Southeast Asia to the Yemenis.
(8) Another of the bombers, Jamal al-Badawi, was also detained and said bin Attash helped purchase the boat involved in the suicide attack.
(d) The Yemenis came up with a photo of bin Attash in November 2000. The FBI passed it on to an informer inside al-Qaeda, and the informer said that, yes, this was bin Laden’s errand boy bin Attash.
(9) The FBI interviewed al-Quso itself in late 2000, and he confirmed he had met bin Attash in Malaysia and gave him some money.
(-) The informer was later shown two pictures of the Malaysia meeting and identified bin Attash in one of them, the Cole investigators documented this identification in February 2001 in order to use in a prosecution of bin Attash. It subsequently emerged that the informer had confused bin Attash with a similar-looking al-Qaeda operative (Nawaf Alhazmi), although there is no reason why he could not re-identify a photo of bin Attash or testify in court, as he was used by the FBI for criminal matters.
In addition, according to the unclassified evidence provided at bin Attash’s Combatant Status Review Tribunal hearing in the spring of 2008:
Stamps utilized on a forged Yemeni merchant’s registration card, which was utilized by the detainee, were forged by a suspect of the USS Cole bombing.
A notebook that was seized during the capture of a senior al/Qaeda operative contained a phone number that was also found in the stored memory of a phone belonging to the detainee.
The detainee’s University of Islamic Studies identification card was found at an alleged al-Qaeda residence in Karachi, Pakistan.
The detainee was implicated in a notebook containing account ledgers for payments made to various al-Qaeda operatives which was found during a raid of an al-Qaeda safe house.
Now let’s turn to the three witnesses the WaPo mentioned. Two of them must be al-Quso and al-Badawi. The Post indicates one is free, having escaped, and the other is in jail. AFAIK this is wrong, both al-Quso and al-Badawi escaped and were subsequently recaptured and then released. They may be free, but the Yemeni authorities know where they are and could go get them if they wanted.
I think the issue here is that if al-Quso and al-Badawi came to the US to testify, the Yemenis are worried they would be arrested and put on trial for the Cole bombing as well and this would anger conservative supporters of the Yemeni government. Therefore, the Yemeni government won’t do it. This can be circumvented by having them testify by video (which was done at the Moussaoui trial for an associate held in Singapore), or by coming to some agreement enabling the two men to travel to the US without being arrested.
I am not a trial lawyer and I don’t know for sure whether this evidence would be sufficient for a conviction of bin Attash, although his repeated contacts with the other Cole bombers and calls to al-Qaeda’s operations center would certainly give jurors pause for thought.
Finally, there is the small matter that bin Attash admitted his involvement in the Cole bombing at the spring 2008 hearing. His oral statement read by his personal representative said:
Generally speaking, the detainee responded that it was hard to dispute the evidence but that the evidence was there in the unclassified summary. Detainee stated the facts on the operations were mixed up, but the facts are the facts. Facts of the operations are correct and his involvements are correct, but the details are not correct. Detainee did not wish to correct the details.
Obviously, one can have reservations about the veracity of statements made by a person incarcerated in Guantanamo, even when he is no longer being tortured. However, in the unlikely event bin Attash did not plead guilty to the Cole bombing, he may have a hard time explaining what he told the CSRT.