Khalid Sheikh Mohammed Case: The 9/11 Nightmare

From the 9/11 mass coverage to the 2009 failed attack of Umar Farouk Abdulmutallab, the U.S military machine has adopted several mechanisms to curb the emerging menace of international terrorism. Inter-American conventions have been ratified to fight against terrorism as well as national norms providing the military judge the power and discretion over issues related to international and national security.

The phenomenal case to be examine in relation to international and national norm is that of Islamist militant Khalid Sheikh Mohammed, al-Qaeda’s brainbox and architect of the September 11 attacks on the World Trade Center and the Pentagon in 2001. Khalid Sheikh Mohammed is a Pakistani of Kuwait birth, who have been retained by the United States at the Guantanamo Bay detention camp under terrorism-related charges after his arrest in Pakistan. The 9/11 Commission Report place a red banner on Sheikh Mohammed due to affiliation to Osama bin Laden’s al-Qaeda organization, leading al-Qaeda’s propaganda operations from around 1999 until late 2001. However, human rights organizations are increasingly limiting certain prerogative in relation to terrorism; extraction of evidence, interrogation of suspected terrorist or those engaged in activities crucial to national security and even custody.

Focusing on the case of Khalid Sheikh Mohammed, captured on March 1, 2003, in the Pakistani city of Rawalpindi by a combined operation of the US Central Intelligence Agency (CIA) and Pakistan’s Inter-Services Intelligence (ISI), and extradited to secret CIA prison sites in Afghanistan, then Poland, where he was interrogated by U.S. Legal prescription such as; U.S Code, Title 10. ARMED FORCES, Subtitle A. General Military Law, Part II. PERSONNEL, Chapter 47A. MILITARY COMISSIONS, Subchapter VIII. PUNITIVE MATTERS, Section 950t (Crimes triable by military commissions) and INTER-AMERICAN CONVENTION AGAINST TERRORISM; Article 2, Applicable international instruments and Article 10, Transfer of persons in custody. Despite legal provisions, Mohammed, along with four other 9/11 planners, charges were dropped in 2010, after proceedings at the United States Military Commission in 2008. Though the case has been scheduled for 2021, the failure to transfer the five co-defendants to New York to stand trial before a civilian federal court in February 2011, is strategic for security experts to examine the timing and location for future trial. 

Below are legislations which can be used in prosecuting Khalid Sheikh Mohammed & co for the 9/11 coordinated attacks:

The legislative norms and Khalid Sheikh Mohammed case

INTER-AMERICAN CONVENTION AGAINST TERRORISM

Article 2

Applicable international instruments 

1.For the purposes of this Convention, “offenses” means the offenses established in the international instruments listed below:  

a. Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970. 

b. Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971. 

c. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973. 

d. International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979. 

e. Convention on the Physical Protection of Nuclear Material, signed at Vienna on March 3, 1980. 

f. Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988. 

g. Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988. 

h. Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988. 

i. International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997. 

j. International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999. 

2.Upon depositing its instrument of ratification to this Convention, a state party that is not a party to one or more of the international instruments listed in paragraph 1 of this article may declare that, in application of this Convention to such state party, that particular instrument shall be deemed not to be included in that paragraph.  The declaration shall cease to have effect as soon as that instrument enters into force for that state party, which shall notify the depositary of this fact. 

3.When a state party ceases to be a party to one of the international instruments listed in paragraph 1 of this article, it may make a declaration, as provided in paragraph 2 of this article, with respect to that instrument.

Article 10

Transfer of persons in custody 

1.A person who is being detained or is serving a sentence in the territory of one state party and whose presence in another state party is requested for purposes of identification, testimony, or otherwise providing assistance in obtaining evidence for the investigation or prosecution of offenses established in the international instruments listed in Article 2 may be transferred if the following conditions are met: 

a. The person freely gives his or her informed consent; and 

b. Both states agree, subject to such conditions as those states may deem appropriate. 

2.For the purposes of this article:  

a. The state to which the person is transferred shall have the authority and obligation to keep the person transferred in custody, unless otherwise requested or authorized by the state from which the person was transferred.

b. The state to which the person is transferred shall without delay implement its obligation to return the person to the custody of the state from which the person was transferred as agreed beforehand, or as otherwise agreed, by the competent authorities of both states.  

c. The state to which the person is transferred shall not require the state from which the person was transferred to initiate extradition proceedings for the return of the person.  

d. The person transferred shall receive, for time spent in the custody of the state to which he or she was transferred, credit toward service of the sentence being served in the state from which he or she was transferred.  

3.Unless the state party from which a person is to be transferred in accordance with the present article so agrees, that person, whatever his or her nationality, shall not be prosecuted or detained or subjected to any other restriction of his or her personal liberty in the territory of the state to which that person is transferred in respect of acts or convictions prior to his or her departure from the territory of the state from which said person was transferred.

U.S Code, Title 10. ARMED FORCES, Subtitle A. General Military Law, Part II. PERSONNEL, Chapter 47A. MILITARY COMISSIONS, Subchapter VIII. PUNITIVE MATTERS, Section 950t 

Crimes triable by military commissions

The following offenses shall be triable by military commission under this chapter at any time without limitation:

(1) Murder of protected persons.

Any person subject to this chapter who intentionally kills one or more protected persons shall be punished by death or such other punishment as a military commission under this chapter may direct.

(2) Attacking civilians.

Any person subject to this chapter who intentionally engages in an attack upon a civilian population as such, or individual civilians not taking active part in hostilities, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(3) Attacking civilian objects.

Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.

(4) Attacking protected property.

Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.

(5) Pillaging.

Any person subject to this chapter who intentionally and in the absence of military necessity appropriates or seizes property for private or personal use, without the consent of a person with authority to permit such appropriation or seizure, shall be punished as a military commission under this chapter may direct.

(6) Denying quarter.

Any person subject to this chapter who, with effective command or control over subordinate groups, declares, orders, or otherwise indicates to those groups that there shall be no survivors or surrender accepted, with the intent to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted, shall be punished as a military commission under this chapter may direct.

(7) Taking hostages.

Any person subject to this chapter who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(8) Employing poison or similar weapons.

Any person subject to this chapter who intentionally, as a method of warfare, employs a substance or weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(9) Using protected persons as a shield.

Any person subject to this chapter who positions, or otherwise takes advantage of, a protected person with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(10) Using protected property as a shield.

Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.

(11) Torture.

(A) Offense.

Any person subject to this chapter who commits an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(B) Severe mental pain or suffering defined.

In this paragraph, the term “severe mental pain or suffering” has the meaning given that term in section 2340(2) of title 18.

(12) Cruel or inhuman treatment.

Any person subject to this chapter who subjects another person in their custody or under their physical control, regardless of nationality or physical location, to cruel or inhuman treatment that constitutes a grave breach of common Article 3 of the Geneva Conventions shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.

(13) Intentionally causing serious bodily injury.

(A) Offense.

Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including privileged belligerents, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(B) Serious bodily injury defined. In this paragraph, the term “serious bodily injury” means bodily injury which involves

(i) a substantial risk of death;

(ii) extreme physical pain;

(iii) protracted and obvious disfigurement; or

(iv) protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

(14) Mutilating or maiming.

Any person subject to this chapter who intentionally injures one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(15) Murder in violation of the law of war.

16) Destruction of property in violation of the law of war.

Any person subject to this chapter who intentionally destroys property belonging to another person in violation of the law of war shall be punished as a military commission under this chapter may direct.

(17) Using treachery or perfidy.

Any person subject to this chapter who, after inviting the confidence or belief of one or more persons that they were entitled to, or obliged to accord, protection under the law of war, intentionally makes use of that confidence or belief in killing, injuring, or capturing such person or persons shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(18) Improperly using a flag of truce.

Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.

(19) Improperly using a distinctive emblem.

Any person subject to this chapter who intentionally uses a distinctive emblem recognized by the law of war for combatant purposes in a manner prohibited by the law of war shall be punished as a military commission under this chapter may direct.

(20) Intentionally mistreating a dead body.

Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessary, shall be punished as a military commission under this chapter may direct.

(21) Rape.

Any person subject to this chapter who forcibly or with coercion or threat of force wrongfully invades the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object, shall be punished as a military commission under this chapter may direct.

(22) Sexual assault or abuse.

Any person subject to this chapter who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one or more persons to engage in sexual contact, shall be punished as a military commission under this chapter may direct.

(23) Hijacking or hazarding a vessel or aircraft.

Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(24) Terrorism.

Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected persons, or intentionally engages in an act that evinces a wanton disregard for human life, in a manner calculated to influence or affect the conduct of government or civilian population by intimidation or coercion, or to retaliate against government conduct, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(25) Providing material support for terrorism.

(A) Offense.

Any person subject to this chapter who provides material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, an act of terrorism (as set forth in paragraph (24) of this section), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as so set forth), shall be punished as a military commission under this chapter may direct.

(B) Material support or resources defined.

In this paragraph, the term “material support or resources” has the meaning given that term in section 2339A(b) of title 18.

(26) Wrongfully aiding the enemy.

Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.

(27) Spying.

Any person subject to this chapter who, in violation of the law of war and with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct.

(28) Attempts.

(A) In general.

Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a military commission under this chapter may direct.

(B) Scope of offense.

An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense.

(C) Effect of consummation.

Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

(29) Conspiracy.

Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

(30) Solicitation.

Any person subject to this chapter who solicits or advises another or others to commit one or more substantive offenses triable by military commission under this chapter shall, if the offense solicited or advised is attempted or committed, be punished with the punishment provided for the commission of the offense, but, if the offense solicited or advised is not committed or attempted, shall be punished as a military commission under this chapter may direct.

(31) Contempt.

A military commission under this chapter may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder.

(32) Perjury and obstruction of justice.

A military commission under this chapter may try offenses and impose such punishment as the military commission may direct for perjury, false testimony, or obstruction of justice related to the military commission.

The exist legislations for prosecuting terrorists or those involve in global terrorism and jihadist tendencies, but the controversy between the C.I.A and F.B.I can be another challenge following defendants claim of being tortured in C.I.A. prisons. Defense lawyers appeal for the drop of charges by federal court and program to stop the proceedings as the trial start date pronounce and might raise the issue for magnetic resonance imaging scans of the five defendants to see if they suffered brain or other physical damage from torture which can delay proceedings and men’s executions.

The formidable question is the war crimes trial by military commissions be able to limit the image and aspiration of terrorist? Or will human rights organizations support defense lawyers? The case of Shamima Begum can be instrumental in contemporary times, following the protein-alliance (Anglo-American alliance) strategy in combating terrorism. Though a national security case, will judge, Col. W. Shane Cohen of the Air Force, set January 11, 2021, date be respected? Or is the death penalty necessary for those that lunge American in dark cloud? Legislation remains a strategic tool in policing and implementing the rule of law on arrested terrorists or aspirants.

This work adheres with Criminal Investigation Task Force 2011, related charges of conspiracy to commit terrorism, terrorism, attacking civilians and civilian objects, intentionally causing serious bodily injury, war crimes and hijacking an aircraft for their involvement in the 9/11 attacks on the United States on Khalid and the other four.

Reference:

Jennifer K. Elsea, 2014. The Military Commissions Act of 2009 (MCA 2009): Overview and Legal Issues. https://fas.org/sgp/crs/natsec/R41163.pdf

AG/RES. 1840 (XXXII-O/02), INTER-AMERICAN CONVENTION AGAINST TERRORISM. http://www.oas.org/xxxiiga/english/docs_en/docs_items/AGres1840_02.html

https://www.law.cornell.edu/uscode/text/10/950t

(The Author is the Editor of crimeandmoreworld.com)

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