This 9/11 suspect and ‘torture prop’ has spent 20 years in Guantánamo. Is he nearing a deal with the US?
Warning: this article contains graphic images and descriptions of torture
On 29 April 2003, 25-year-old Ammar al-Baluchi was snatched off the streets of Karachi by Pakistani authorities and handed over to the CIA.
While in CIA custody, he endured extreme forms of cruelty. He was denied sleep for days and became a human experiment for interrogators who practiced brutal methods on him to gain “official” certification in using “enhanced interrogation techniques”. Over the next three years, he was secretly shuttled between six different black sites around the world. Then, in September 2006, he was transferred to Guantánamo Bay, where he still sits in a cell. Though never convicted of a crime, he hasn’t seen a day of freedom since he was first disappeared.
According to the US government, Baluchi is one of five co-conspirators responsible for the 9/11 attacks, which killed close to 3,000 people, and he is facing charges that carry the death penalty.
Though his name and horrific experiences of torture provided the basis for a character in the 2012 film Zero Dark Thirty, no journalist has been able to talk directly to Baluchi for the last 20 years. The US government imposes strict rules on communications between him and the outside world. Journalists may not ask him questions via his lawyers, for example. But by talking to his defense team and legal experts, digging deep into the trial record, examining legions of declassified documents and partially redacted transcripts, and comparing his own written accounts of his ordeal with recently declassified CIA documents of his treatment, it is possible to assemble what might be the fullest picture yet of who Ammar al-Baluchi is, how his captors saw him, and what he has endured.
Understanding Baluchi and his torture is crucial beyond mere human interest or political curiosity. The torture he and his co-defendants endured and the long-term consequences of that abuse, including the possibility of post-torture therapy treatments, have all become part of plea negotiations, which began after the prosecution approached the defense teams in March 2022.
These talks could fail and, if they do, the 9/11 case will probably continue without any resolution for many years to come. But if the talks succeed and a plea agreement is reached, a judgment will finally be entered in one of the biggest legal cases in American history.
And the United States will also be one step closer to closing the most infamous site of indefinite detention amid the “war on terror”.
But why has the prosecution even proposed a plea deal? And how likely is it to happen?
Twenty years of detention
Baluchi, who also goes by the name Ali Abdul Aziz Ali, is facing capital charges but, after 20 years of detention, the United States has yet to bring him to trial. Charges against him and his four co-defendants were filed for the second time in 2012, but since then the case has been stuck in endless pre-trial hearings.
Over a decade of hearings with no sign of a trial doesn’t seem like normal jurisprudence, but nothing is normal at Guantánamo. The case is being heard by military commission, a new and separate legal system established by the Military Commissions Act of 2006 and modified in 2009. It’s taking place in a courtroom far from the US mainland, behind soundproof glass, and on a 40-second audio delay for those – press, family and NGO observers – allowed to watch its “public” proceedings.
Most of the charges Baluchi faces in his military tribunal concern conspiracy, but conspiracy is generally not recognized by international law as a war crime and its status as such under US law remains unsettled.
The specter of torture, a crime under both international law and US statute, has haunted these proceedings from the beginning. That this torture was state policy is a dangerous fact for the US government, and from the beginning prosecutors have tried to suppress any mention of it (hence the 40-second delay) while seeking to admit statements made under torture into the record. It hasn’t been that simple.
“Administration after administration has assumed the 9/11 case is open and shut, that a jury will convict these guys, give them death sentences, and we’ll be good,” explained Lisa Hajjar, author of The War in Court: Inside the Long Fight Against Torture, a book about torture and the American judicial system in the “war on terror”. “But you cannot have anything that passes the sniff test for justice when people were tortured and disappeared for years.”
From the 2014 Senate select committee on intelligence’s “Torture Report” (which references Baluchi over 100 times) to years of litigation from lawyers, journalists and activists, the gruesome details of torture have been emerging, sometimes in drips, other times in waves. Also emerging has been the degree of coordination between the CIA and FBI in holding and questioning men.
Prosecutors have long relied on the idea of separation between the CIA and FBI, arguing that statements made to the FBI were not coerced and are therefore admissible in court. Yet court transcripts in 2021 revealed that at least nine FBI agents were temporarily assigned as CIA agents at black sites, complicating the picture.
We can’t ask Baluchi what happened to him and, like the rest of his co-defendants, he hasn’t had the opportunity to testify about it in open court. Until December 2013, in Guantánamo’s military commissions, a defendant’s own memories of his torture were considered classified, and, to this day, any statement a defendant makes about the CIA still undergoes classification review.
But in 2021, another man, Majid Khan, openly recounted for the first time the torture he endured at the hands of the United States. This statement was part of Khan’s plea deal from years earlier. Khan, who was a courier for al-Qaida, described to a military jury the harrowing treatment he received in CIA custody. In grisly detail, he explained how he was shackled, hooded, and kept naked for days on end. He talked about being force-fed with “a plunger to force the food quickly” into his stomach and how a puree of “hummus, pasta with sauce, nuts and raisins” was shoved up his rectum.
His eyeglasses were broken early in his confinement, and he was not given a new pair for three years, he said. He was repeatedly beaten and waterboarded. He was sexually assaulted and forcibly submerged in ice water, and much more. All this happened before he arrived at Guantánamo Bay, a place he described as “death by a thousand cuts”. During his statement, he also spoke of his remorse for his actions with alQaida. “There is not a day that goes by that I am not sorry for what I have done,” Khan said.
Seven of eight senior officers on his military jury were moved enough by his words to recommend clemency for the 41-year-old. “The treatment of Mr Khan in the hands of US personnel should be a source of shame for the US government,” they wrote. Khan completed his 10-year sentence at Guantánamo, which started with his guilty plea in 2012, and he has since been resettled in Belize.
While observing developments in the Khan case, the 9/11 trial prosecutors began to see more details about questionable CIA and FBI activity emerge. According to Hajjar, who follows the military commissions closely, the prosecutors soon realized that “they [could not] achieve what they had sought to achieve”. Unanimous death sentences that would withstand appeal seemed ever more unlikely, so “plea bargaining, from the government’s point of view, became necessary”, she said.
In March 2022, the government approached defense teams in the 9/11 trial for plea negotiations. While details haven’t been made public, the broad outlines have been reported. The men would plead guilty and the government, in exchange, would no longer seek the death penalty. Since Congress passed a law forbidding the transfer of any Guantánamo detainee to the US mainland, sentences would probably be served at Guantánamo Bay. The length of sentence would be worked out individually for each of the five.
Parts of the deal proposed by the defense must be decided by policymakers, so they have been labeled “policy principles”, according to court filings. What’s known about these policy principles is that they concern conditions of confinement, rehabilitation from torture, and adequate medical care. The policy principles have been sent to Caroline Krass, general counsel of the Department of Defense,
who, perhaps problematically, also served as general counsel for the CIA between 2014 and 2017. And since these plea negotiations began, the military commission on the 9/11 case has been sitting in limbo, waiting for over a year for a response.
‘Enhanced measures on Ammar’
Ammar al-Baluchi is the nephew of Khalid Sheikh Mohammed, the man often called the “mastermind of 9/11”. (Alongside Mohammed and Baluchi, the three other men facing charges for the 9/11 attacks are Mustafa al-Hawsawi, Ramzi bin al-Shibh and Walid bin Attash.)Baluchi was born in Kuwait, but his roots are from Baluchistan, an area that covers parts of Iran, Pakistan and Afghanistan, and Baluchi spent most of his teenage years in Iran and Pakistan. He then moved to Dubai, where he worked in computers before relocating to Pakistan in September 2001, after his Dubai visa expired. He speaks Arabic, Farsi, Urdu, Baluchi and English.
The government alleges that, at his uncle’s behest, Baluchi wired over $100,000 in several transactions to some of the 9/11 hijackers. It’s said he kept the money in a laundry bag. He’s also alleged to have helped some of the hijackers in the United Arab Emirates before they traveled to the US. According to trial transcripts of government witnesses, Baluchi says he didn’t know for certain what the men he had wired money to were planning.
In April 2003, he was arrested with Walid bin Attash in Pakistan because of an “unrelated criminal lead”, according to the CIA. Reports at the time of his arrest say the men were seized with 300lb of explosives with them. First questioned by the Pakistanis (with the CIA watching a live video feed), Baluchi was described as forthcoming, even “chatty”. But the CIA wanted him, and days after his arrest he entered their custody.
Before the Pakistanis turned Baluchi over to the US, the decision had “probably” been made to use “enhanced measures on Ammar”, according to CIA documents. The US was convinced he held “perishable information” on