Back in 2003, when U.S. forces first took custody of the notorious al-Qaida mastermind Khalid Sheikh Mohammed, there was much speculation about what his capture might signify. Some thought he might possess “ticking time bomb” information about other planned operations, some predicted his loss would fatally damage al-Qaida, some guessed his arrest would lead to others. Other observers, among them Harvard law professor Alan Dershowitz, used the capture to float their interesting theories about torture: when and how it might legitimately be used, for example, given a candidate who might seem so clearly deserving of it.
Here is one thing nobody predicted back in 2003: that when the notorious KSM eventually stood before a Guantanamo Bay military tribunal and admitted responsibility not only for Sept. 11, the deadliest crime ever carried out on U.S. soil, but also for the horrific death of journalist Daniel Pearl, among some two dozen other operations, that confession would be greeted around the world with skepticism.
The Daily Telegraph, normally the most pro-American newspaper in Britain, wrote that it hardly mattered whether he was guilty, since whatever the conclusion of the military tribunal that will try him, “the world will condemn the procedures by which the verdicts were reached.” Germany’s Frankfurter Allgemeine Zeitung concluded that “the Bush administration has nobody but itself to blame for the fact that the actions and motives of the perpetrator are now playing second fiddle to the practices used by the Americans in fighting terrorism.” In many places, the confession, which took place more than a week ago, has hardly attracted attention.
A small part of this international indifference perhaps derives from the transcript of the confession itself, which seems boastful and exaggerated. (What else will he confess to? The murder of JFK?) Most of it, though, surely comes from the widespread, indeed practically universal assumption that KSM was tortured, not in theory but in practice.
Certainly, during his hearing at Guantanamo Bay, there are references to “certain treatment [he] claimed to have received,” though the relevant parts of the official transcript remain classified. But in truth, the assumption that he was tortured comes from the fact that, as we all now know, the White House, the Pentagon, and the Justice Department were also debating the merits of torture round about the time of KSM’s capture, along with Harvard professors. Alberto Gonzales, then the White House counsel, now better known for his disastrous performance as attorney general, had as early as 2002 advised the president that torture might under certain circumstances be permissible. And all of us have seen the pictures from Abu Ghraib.
It is true that the administration has now stated clearly that torture, at least by its own definition, was not used in KSM’s interrogation. (“We don’t do torture” is how the White House press secretary cavalierly put it.) But even if we were to give the administration the benefit of the doubt, which hardly anyone will, the circumstances of KSM’s detention have been unacceptable, at least by American standards. Even if he was not tortured, then certainly he was held in secret, extralegal, and completely unregulated conditions, possibly in Eastern Europe or the Middle East, certainly under nothing resembling what we in the United States normally consider the rule of law, either international or domestic. The mystery surrounding his interrogation—when it was carried out, how, and by whom—renders any confession he makes completely null, either in a court of law or in the court of international public opinion.
This is concrete proof, as if more were needed, that it is not merely immoral to operate outside the rule of law, it is also profoundly counterproductive. Who could have imagined, in September 2001, that one of the masterminds of the attacks on the World Trade Center and the Pentagon would make his confession and the world would hear it with indifference?
