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MADELEINE BRAND, host:

This is Day to Day, I'm Madeleine Brand.

ALEX CHADWICK, host:

I'm Alex Chadwick. Coming up, rising oil prices means good times for Texas.

BRAND: First, though, to Guantanamo Bay. Charges against the September 11th 20th hijacker have been dropped. Mohammed al-Qahtani was one of six men charged with murder and war crimes in the 9/11 attacks. And here to tell us more is Dahlia Lithwick. She's Day to Day's regular legal analyst. She's also the legal analyst for Slate.com. And Dahlia, tell us more about Mohammed al-Qahtani, the 20th hijacker.

DAHLIA LITHWICK: Right. The new 20th hijacker. You might remember, Madeleine, there was a long time that Zacarias Moussaoui, who went on trail and was sent to jail, was the 20th hijacker. So we've had a couple of those. Qahtani is known as Gitmo detainee number 063. The reason there's a pretty compelling case against him as the real 20th hijacker is that he tried to enter the U.S. in August of 2001, right before the September attacks.

Apparently Mohamed Atta, who was the leader of the whole team that landed up attacking the twin towers, was waiting outside for him at the Florida airport, and apparently, a vigilant immigration guard was bothered by the fact that he had no return ticket, 2800 dollars in cash in his pocket and couldn't identify the friend who was picking him up at the airport. So he was turned away, deported, and later picked up in Afghanistan, and then he's been held at Guantanamo ever since.

BRAND: Right. And he's one of the six charged, the so-called worst of the worst. One of those six is also Khalid Sheikh Mohammed, the alleged mastermind. So why were the charges dropped?

LITHWICK: Well, we've been hearing reports from as long ago as 2006 that the charges were almost going to have to be dropped against al-Qahtani because of the way he'd been treated. Apparently, he was subject to all sorts of abusive if not torture interrogation, including being forced to urinate on himself, being subject to stress positions, sleep deprivation, extreme temperature differentials, inappropriate and harassing touching by female guards, forced to wear women's underwear.

So he recanted his own confession in 2006, saying he'd confessed only under those kinds of conditions. It's been very, very unclear ever since then that based on that kind of evidence whether they could in fact make a case against him.

BRAND: Did prosecutors say why they dropped the charges? Or is this conjecturing on the part of the defense?

LITHWICK: They haven't said why they haven't dropped charges, and in fact, this was done without prejudice, as it's said, so they can certainly bring charges against him again. But certainly, something must have happened to make them believe that they could not go to trial against al-Qahtani.

BRAND: Meanwhile, there's another case going on, involving Osama bin Laden's former driver, Salim Hamdan. And there's a development in this case which is interesting. A top Pentagon official, actually the legal advisor to the office of military commissions, Brigadier General Thomas Hartmann, has been found to have exerted improper influence over this case. What's going on over there?

LITHWICK: That's right, Madeleine. On Friday, military judge at Guantanamo Captain Keith Allred issued a ruling that said, in effect, that Hartmann so blurred the roles of prosecution, defense, and judges that he could no longer be involved in Hamdan's case. In effect, the judge said that Hartmann's oversight over what's known as the "convening authority" had just pushed too far on small details.

The judge called it "nano-management" of the case, pushing the prosecutors to bring cases that were, quote, "sexy," rather than cases that could win on their merits. And also, the implication is, I think, that he was pressing prosecutors to use evidence that they'd already deemed unreliable. Hartmann had tried to steamroll over that. And the judge just had a problem with it, and said Hartmann can no longer be involved in Hamdan's case.

BRAND: So, Dahlia, taking both of these developments, and they both seem to point to the fact that using coercive techniques or torture really is a problem in terms of prosecuting these cases. What does this mean for the general prosecution of these prisoners?

LITHWICK: I think it really highlights a problem that we've talked about on and off for a couple of years, which is the government needed to make a decision immediately after 9/11 about whether it wanted to extract information, whether this was, in fact, a ticking-time-bomb situation, and the most critical thing was to torture people if you needed to but get information from them, or if they wanted to really highlight how the rule of law and due process worked in the West.

They made a decision to try to both, and it's coming clear that you cannot do both. If you're going to try to get information out of people, you can't turn around and try them using that information. And the most interesting thing I think it signals is that this is almost a rebellion that is happening from the ground up. Individual prosecutors from individual judges, from people who are saying, look, I'm a military person. I believe that these people are guilty. I believe in these tribunals, but I still can't go forward under these circumstances. This is not real evidence.

BRAND: Thank you, Dahlia.

LITHWICK: My pleasure, Madeleine.

BRAND: That's Dahlia Lithwick, legal analyst at Slate.com.

(Soundbite of music)

BRAND: There's more coming up on Day to Day from NPR News.

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