The second attempt to prosecute Khalid Sheikh Mohammed on charges he orchestrated the Sept. 11 attacks got off to a slow start as defense assaults on the tribunal’s integrity and the judge’s competence may foreshadow a years-long legal slog aimed at justice for almost 3,000 victims.
The arraignment yesterday at a naval base in Guantanamo Bay, Cuba, of Mohammed and four codefendants stretched from morning to late night as the five men deferred entering pleas while delaying proceedings through prayer, silence, outbursts and an attempt to display injuries allegedly suffered in custody. Their lawyers repeatedly sought to argue about the legality of the military commission and its implementation.
Several of them asked for trial to begin in May 2013, while military prosecutors said they would be ready by Aug. 1 of this year. The judge scheduled the next hearing, on preliminary motions, for mid-June.
The government is seeking to convict the five men for their roles in a conspiracy that used hijacked passenger planes to destroy the World Trade Center in Manhattan and damage the Pentagon. Mohammed, with a long reddish beard and wearing a white tunic and turban, looked down and away when the judge spoke to him. He refused to answer questions during the court appearance, his first since 2008.
“He’s deeply concerned about the fairness of the proceeding,” Mohammed’s lawyer, David Nevin, told the judge, U.S. Army Colonel James Pohl. “If the court addresses him and he declines to communicate with the court, it reflects a choice on his part.”
‘Frustrate the Commission’
Pohl said he wouldn’t allow Mohammed “to frustrate the commission going forward” and threatened to enter pleas to the charges on the defendants’ behalf. Eventually, the five men deferred entering their pleas. In doing so, they preserved the right to file subsequent legal motions otherwise barred under military rules.
Lawyer James Connell said today at a press conference in Cuba that the defense team planned to use the legal proceedings to elicit a “full airing of the torture years.” The defense intends to wage “peaceful resistance to an unjust system.”
The defense plans “to assert every single right,” Walter Ruiz, another lawyer for the defendants, said at the press conference. The obligation of the defense “is to hold our government’s feet to the fire.”
Fight Any Attempt
Prosecutors said today they will fight any attempt to focus the proceedings on torture or what the defense said was interference with their right to defend their clients.
“That’s not justice,” if the defendants go free for a crime that killed thousands because of their subsequent treatment, Army Brigadier General Mark Martins, the chief prosecutor, said. He predicted the case will be a long road.
“I’m getting ready for hundreds of motions,” he said. “We’ve got to do this methodically and patiently.”
Mohammed, who has claimed that he organized the Sept. 11 attacks and was the operations chief for the terrorist group al-Qaeda under Osama bin Laden, previously attempted to plead guilty in 2008. Earlier charges against him were withdrawn after President Barack Obama sought to move the case to U.S. District Court in New York. The administration returned the matter to the military in 2011.
During the hearing’s morning session, the judge brought a translator into the courtroom in response to the defendants’ refusal to follow the proceedings through headphones.
While Pohl was going through the formality of asking the lawyers to detail their qualifications, defendant Ramzi bin al Shibh stood up, pointed to the judge and said “the right time is now” to address the defendants’ concerns, “not tomorrow.”
Bin al Shibh said he wanted to talk about death threats the defendants had allegedly received at the camp. In fractured English, he sought to equate the Guantanamo prison camp to Libya under its late dictator, Muammar Qaddafi.
At one point, another defendant, Walid bin Attash, stood and kneeled as if in prayer. Mohammed and Ali Abdul Aziz Ali, also charged in the case, did so also, with Mohammed later reading from what appeared to be a prayer book.
Pohl asked the defendants if they understood their rights to have lawyers and that they could seek different attorneys.
“The accused refused to answer,” Pohl said, memorializing their silence for the record.
Responding to the frequent interjections from defense lawyers asking to discuss the treatment of their clients, Pohl said he would consider “appropriate” issues after dealing with required preliminary matters. Attorneys for the defendants protested that they aren’t permitted confidential consultations with their clients.
Dress More Modestly
Defense lawyer Cheryl Borman said during the hearing that women on the prosecution team should dress more modestly so the defendants could look in their direction without “fear of committing a sin under their faith.” Borman was wearing Muslim attire, including a black hijab.
Martins, the chief prosecutor, defended his team’s professionalism. Most of the women were in military uniforms that had skirts.
Much of the afternoon session was spent with defense lawyers questioning Pohl as to whether he should be disqualified.
Mohammed watched closely as his lawyer peppered the judge with questions. With a slight grin, he turned his head from left to right as Nevin asked Pohl about his beliefs, experience, background, judicial philosophy and whether he thought a military judge should be presiding over the case.
Challenging the Judge
The judge said he recently read, “The Black Banners: The Inside Story of 9/11 and the War Against al-Qaeda,” a book by an ex-Federal Bureau of Investigation agent who questioned the effectiveness of so-called enhanced interrogation techniques. Nevin asked Pohl if he had opinions on the issue, which will probably come up at trial. Pohl said that was “irrelevant.”
“I will apply the law as I believe it is, regardless of personal beliefs of what I think it should be,” said Pohl
Borman, who represents Bin Attash, directly suggested Pohl was unqualified. She asked him whether he ever presided over a case with more than one defendant or ever litigated a case with more than 20,000 documents.
“I’m asking about your qualifications to handle complex litigation,” she told Pohl. He declined to answer, saying he didn’t consider the question relevant.
Mohammed, born in the Baluchistan region of Pakistan along the Iran border, grew up in Kuwait. He is accused of proposing what became the Sept. 11 operation to bin Laden in 1996 and training hijackers to hide knives in carry-on bags before boarding the planes.
Under his direction, the hijackers learned how to slit the throats of passengers by practicing on sheep, goats and camels, the government claimed.
A U.S. charging document said codefendant bin al Shibh wired $2,708 to one hijacker, and in late August 2001 sent a message to Mohammed that the hijackers’ leader, Mohammed Atta, had chosen Sept. 11 for the date of the attacks.
Mohammed, who was captured in a 2003 raid in Pakistan, is charged with Bin Attash, Aziz Ali, Bin al Shibh and Mustafa Ahmed Adam al-Hawsawi for planning the attacks that used three jetliners on targets in New York and Washington, and a fourth, United Airlines Flight 93, which crashed in Shanksville, Pennsylvania, after passengers fought back against the hijackers.
The five are charged with conspiring to finance, train and direct the 19 hijackers who seized the planes. The charges include terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war and attacking civilians.
The men may face execution if convicted.
Mohammed was held by the Central Intelligence Agency until 2006, and then sent to Camp Delta, the detention facility at Guantanamo Bay that now holds 169 suspected terrorists.
The CIA has acknowledged that he was one of three al-Qaeda operatives who were “waterboarded.” He underwent the procedure, which simulates drowning, 183 times, according to government documents. The U.S. has since banned the practice, which critics such as Human Rights Watch call a form of torture.
By early evening at yesterday’s hearing, Bin Attash tried to show the judge alleged injuries suffered while in custody.
Pohl rejected his attempt, telling him, “You will put your shirt on or you’ll be escorted.”
The accused men delayed proceedings until late in the night by insisting that 87 pages of charges be read aloud, a step that is usually bypassed. The need for a translation of the charges into Arabic made the process even longer.
“In my 12 years of being a judge, this is the first time I’ve had the charges read,” Pohl said.
At the end of the proceeding, Bin al Shibh noticed two relatives of Sept. 11 victims staring at him from the visitors’ booth. He turned toward them, smiled and nodded, and gave them a thumbs-up. One of them quietly cursed in reply.
William Hennessey, a lawyer for Bin Attash, disputed accounts that Bin al Shibh gave a thumbs-up to the relatives. Instead, he said today it was a thumbs-up and smile to his translator, who was sitting near the gallery.