Sept. 11 Trial Defense Defiance Signals Long Game Plan

Defendant Khalid Sheik Mohammed
In this courtroom drawing, Khalid Sheik Mohammed, right, consults defense attorney civilian David Nevin during a break at Mohammed's military commission hearing at the US Naval Base in Guantanamo Bay, Cuba. Sketch artist: Janet Hamlin/AFP/Pool

Lawyers for Khalid Sheikh Mohammed and four other men accused of planning the Sept. 11 terror attacks pledged to be as zealous in the defense of their clients as the defendants were defiant before a military judge.

Adopting what one lawyer called “peaceful resistance to an unjust system,” they proclaimed their strategy at a press conference at Guantanamo Bay, Cuba, yesterday, one day after a 13-hour arraignment. They said they will “assert every single right” and elicit a “full airing of the torture years.” Walter Ruiz, a lawyer for defendant Mustafa al Hawsawi, said the defense must “hold our government’s feet to the fire.”

At the May 5 hearing, the defendants and their lawyers gave the government a taste of that strategy. While their clients refused to answer questions, stood and began praying as the judge spoke and demanded a 2 1/2 hour reading of the charges, the lawyers sought to undercut the legitimacy of the court. They tried to protest the alleged lack of access to clients or translators, the use of evidence derived from torture, and questioned the competence of the judge, U.S. Army Colonel James Pohl.

‘Long Game’

Such a robust defense effort may be aimed less at achieving an acquittal in the deaths of almost 3,000 Americans and more at success on appeal. Defense lawyers are probably playing the “long game,” one that sets “the stage for a constitutional attack in the U.S. Supreme Court,” said Eugene Fidell, a former president of the National Institute of Military Justice who teaches at Yale University. They will “make things as painful as possible” for the government in arguing that classified information must be discussed at trial and that their clients were tortured.

“Improperly obtained evidence,” Fidell said, “is going to be a major issue.”

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.

Mohammed’s lawyer, David Nevin, said yesterday that the government is seeking to execute Mohammed in order “to extinguish the last eyewitness to his torture.”

Military Tribunal

Prosecutors defended the military tribunal, saying they’re intent on providing the five men a fair trial. Army Brigadier General Mark Martins, the chief prosecutor, said at a press conference yesterday that the government is prepared to field hundreds of legal motions by the defense.

The arraignment of the five men was starkly different from the last time Mohammed and his codefendants appeared in court.

During their prosecution in 2008 under an earlier round of charges -- later dropped by the government -- Mohammed said he wanted to confess and be martyred.

In court two days ago, neither he nor most other defendants spoke or cooperated with the judge. Through their lawyers, they deferred entering a plea. In so doing, they retained the right to file legal motions attacking the government’s case.

Refused Headphones

During the hearing’s morning session, the pace of proceedings slowed after the defendants refused to follow the arraignment through headphones. Instead, the judge was forced to ask the translators to provide translation to the entire court.

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 their concerns, “not tomorrow.”

Bin al Shibh said he wanted to talk about death threats the defendants allegedly received at the camp. The judge said he will hear arguments on defense motions at the next hearing in mid-June.

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.

At one point during the arraignment, defendant Walid bin Attash stood and kneeled as if in prayer. Mohammed and defendant Ali Abdul Aziz Ali then did so as well, with Mohammed later reading from what appeared to be a prayer book.

Injury Display

Later, Bin Attash tried to show the judge an alleged injury he suffered while in custody. Pohl rejected his attempt to display his back.

Responding to the frequent interjections from defense lawyers asking to discuss treatment of their clients, Pohl said he would consider “appropriate” issues after dealing with required preliminary matters. Attorneys for the defendants protested they aren’t permitted confidential consultations with their clients.

Much of the arraignment’s afternoon session was spent with defense lawyers questioning Pohl as to whether he should be disqualified. Nevin asked Pohl about his beliefs, experience, background, judicial philosophy and whether he thought a military judge should be presiding over the case.

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.

‘Irrelevant’ Opinion

Nevin asked Pohl if he had opinions on the issue, which will probably come up at trial. Pohl said that was “irrelevant.”

Attorney Cheryl Borman, who represents Bin Attash, said yesterday Pohl was unqualified. In court, 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 as part of the standard pre-trial questioning of judges in military proceedings. He declined to answer, saying he didn’t consider the question relevant.

Morris Davis, a chief prosecutor for the military commission at Guantanamo Bay from 2005 to 2007, said the defense strategy appears to be an attack on the tribunal’s legitimacy.

‘Second-Rate Process’

“They’re trying to capitalize on how flimsy this second-rate process is,” said Davis, who now teaches at Howard University School of Law in Washington. He said he wants the Sept. 11 cases heard in civilian courts. President Barack Obama withdrew an attempt to try the cases in federal court in the face of strong congressional opposition.

“They turned an arraignment which normally takes about one hour in the federal court system into a 13-hour circus. The federal court or court-martial systems have well-established rules and decades of precedent where the government develops a case to fit the confines of the rules,” he said.

“Here, they’re doing it” backward, Davis said. “They created a set of bad facts by abusing these guys and rather than trying to adapt the case to the court system, they’re trying to adapt a court system to fit the case.”

Several of the defense lawyers asked for trial to begin in May 2013, while military prosecutors said they would be ready by Aug. 1 of this year. Lawyers later said that date was only a “control” date and that the trial may be years away.

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.

Law of War

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 has claimed that he organized the attacks and was the operations chief for the terrorist group al-Qaeda under Osama bin Laden, who was killed last year by U.S. troops. Born in the Baluchistan region of Pakistan along the Iran border, he is accused of proposing what became the Sept. 11 attacks to bin Laden in 1996 and training hijackers to hide knives in carry-on bags before boarding the planes. He was captured in a 2003 raid in Pakistan.

Mohammed, with a long reddish beard and wearing a white tunic and turban, refused to answer questions during his court appearance, turning away when the judge asked him questions.

Pohl said at the hearing that he wouldn’t allow Mohammed “to frustrate the commission going forward.”

Supreme Court

Fidell said Mohammed and the other defendants, if convicted, have an easier road to the U.S. Supreme Court than U.S. soldiers found guilty in a court-martial. In that system, non-death sentence cases can generally be appealed to the U.S. Supreme Court only if the U.S. Court of Appeals for the Armed Forces allows it.

In this case, the judgment can be appealed to the U.S. Court of Military Commission Review, then the U.S. Court of Appeals in Washington, and then the Supreme Court, he said.

“These guys are going to have better access to the Supreme Court than G.I.’s,” he said.

Charles Dunlap, a retired Air Force Major General and former deputy judge advocate general, said the defense strategy may be seeking to push prosecutors into reversible error.

“It may be that the defense thinks a carefully orchestrated strategy of extended noncompliance with the trial process will so frustrate and exhaust the commission participants that the judge or the prosecution will be lured into some error,” said Dunlap, a visiting professor at the Duke University School of Law.

Appeal ‘Problems’

Such an error, “if not leading to acquittal, may cause problems on the appeal,” said Dunlap.

He said the defense attorneys may be seeking to guarantee a sentence of life in prison, should the defendants be convicted, which “is better for their clients than a session in Fort Leavenworth’s death chamber.”

Dunlap added, however, that “appellate courts are not usually disposed to this kind of defense.”

Prosecutors said they will fight any defense strategy that seeks to focus the proceedings on alleged interference with representation of the defendants, or torture.

If the defendants go free because of their subsequent treatment, “that’s not justice,” Martins, the chief prosecutor, said yesterday.

Interpreters Rejected

In response to Ruiz’s claim that he wasn’t provided an interpreter to speak with his client, al Hawsawi, Martins said the defense rejected several interpreters offered to them.

The prosecutor dismissed a defense claim that lawyers were unable to speak with their clients. He defended a military tribunal system that defense lawyers have said is unfair and denies their clients fundamental rights, including the ability to discuss torture allegations with their clients.

Martins said the system ensures justice while protecting “lawful sources and methods” used to guard against future attacks.

“Our nation’s secrets are not going to be an open book,” Martins said. “But we are also committed to justice.”

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