The alleged 9/11 mastermind Khalid Sheikh Mohammed and four others will be tried in a civilian court near Ground Zero.

The move is part of President Barack Obama’s efforts to close the prison, which he pledged to do by January 22.

There is one man, however, who was left off the list and won’t be transferred from the prison on Cuba. Abu Zubaydah “was the top-ranking terrorist when he was picked up in March 2002 by American forces in Pakistan,” said Daily Beast investigative journalist Gerald Posner.

“He was waterboarded 83 times,” he said. This technique makes victims believe they are drowning and is widely condemned as torture.

Also, Posner said, “the Americans did a ‘fake flag’ operation on him after they caught him in which they pretended to be Saudi interrogators and they got him to disclose information that was critical about the Saudis and the Pakistanis.” Zubaydah was wounded and they denied pain medication to him to increase the pain so that he would talk.

“It’s not clear that any of the things that he disclosed could be admitted in court because of ‘enhanced interrogation tactics,’” he said.

The man “who… is one of the most interesting” is not going to have a civil trial, Posner said, asking why.

Attorney Eric Montalvo, who has defended Guantanamo detainees before, believes that the five suspects who are to face trial “made it their mission to participate in the attacks.”

“In terms of fairness, the issue is really going to be in terms of mitigation,” he told RT. The question is what to do “with the idea that we have tortured them.”

“It’s not really whether or not they can be properly convicted of what they have done. It’s more about how do we account for what we did to them in the process,” Montalvo concluded.