Messy Legal Rules and Procedures Make Khalid Sheikh Mohammed Trial Doubtful
The arraignment of the 9/11 mastermind and others bogged down over the defendants’ treatment, the judge’s ‘process,’ and silly classification rules—and suggested proceedings may never advance to an actual trial.
05.08.12 1:45 AM ET
Why are we making this so hard?
We have the crime of the century, willing defendants, mountains of evidence, uncoerced confessions. And still I came away from the weekend’s Guantánamo Bay arraignment of the self-proclaimed mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed, wondering if there would ever be a trial. I doubt it.
I think it more likely Mohammed, known within American intelligence circles as KSM, will sit in a solitary jail cell until his carefully tended, henna-red beard turns snow white, he shrivels into old age, and passes on to whatever afterlife awaits him.
The reasons have nothing to do with the crimes committed or even with the viability of the military commission system under which he is intended to be tried. The hard issues in this case arise solely from what has happened after KSM and his four codefendants were caught. This began with their capture and torture, but doesn’t nearly come to an end there.
The difficulties are all the fruit of the same poisoned tree. No, that’s not right. It’s not a tree, but a poisoned plantation, and it’s still growing.
The arraignment at Guantánamo’s Legal Expeditionary Complex Saturday lasted from 9 a.m. until 10:30 p.m., and the only time the actual alleged crimes were raised was at the formal reading of the charges at day’s end. The entire rest of the time—indeed, most of the decade since he and his fellows were captured—was devoted to attempts to discuss how well or poorly the defendants have been treated, both in the black sites and at Guantánamo. I say “attempts” because no substantive discussions were permitted by Col. James Pohl, the judge.
The commission system could probably work if it were ever given a chance. That’s not to say the trials shouldn’t be in federal court—they should. The federal courts have been trying crimes just like this for a quarter century. A competent, experienced, federal judge, had one been allowed, would have finished this trial years ago. But the Guantánamo commissions are condemned to flawed circumstance, perhaps fatal.
Pohl, who appointed himself to the trial, is having to make up the rules of his court as he goes along. Such fundamental, simple aspects of the proceedings as providing translation to the defendants were being decided on the run Saturday. Lawyers spent 15 minutes arguing about what the defendants would wear to court.
To the irritation of the defense, Pohl is a stickler for what he kept referring to as his process, but the irony of the case is that most of what is going on is beyond his doing or control. Even if one could somehow deal with the elephant in the room—torture—Pohl would still have no control over the terms of his defendants’ treatment outside the courtroom. Trying to hold objective legal proceedings in the middle of an armed camp has so many inherent contradictions as to seem impossible.
The rules by which the defendants are being held, including what access they have to their attorneys and what they can talk about with those attorneys, fall to the man who runs the Guantánamo prison, a Navy admiral who has decided that entire ranges of conversation are so precious to the security of the United States that the lawyers are forbidden to hear them.
This presumptive classification, as it is called, has been interpreted to mean that anything the detainees say that bears on the sources and methods of their capture and captivity is a state secret. This includes, so far, the means by which they were interrogated. This is daft. Forget for a moment that we already know much of this. I know how KSM was captured. I know the name of the old friend who betrayed him for the reward money. KSM surely knows how he was interrogated. In what possible world would further discussion of that knowledge, however embarrassing, be a threat to the U.S.?
I know Bush administration loyalists dismiss this sort of argument as the irrelevant carping of people not brave enough to see the world as they see it—a lonely and dangerous place where the U.S. must act boldly, alone, and outside the law as necessary.
Anyone who believes that has not spent enough time talking to our friends in the Muslim world—not our enemies, our friends—about the effects our actions have. Those who refuse to believe those effects are less than wholesome are worse than foolish; they’re dangerous. The worst public-policy decisions in a generation were taken in thrall to that idea. They have compromised American security rather than protected it.
Many of those actions—the invasion of Iraq, the operation of the black sites, and their accompanying torture regime—are in the past, but the mistakes continue still at Guantánamo. The silly classification rules, the inaccessibility of the defendants to their lawyers, the monitoring of communications, the strip searches—all compromise America’s moral standing and make holding a trial more difficult, not easier.
If they ever get to trial, these guys are going to be convicted. But only if they get there.
We should be bending over backward to give them every tool a robust defense can offer. We should do this not for them but for us. Doing the right thing is not a sign of weakness. It’s a sign of strength. You do it because you can afford to, because you want to, because it speaks to the values of the country.
Inside the Khalid Sheik Mohammed Hearing Circus
A Gitmo hearing for 9/11 mastermind Khalid Sheikh Mohammed turned into a mess when the defendant refused to speak to the court. Terry McDermott reports on the trial’s rough day.
05.05.12 7:14 PM ET
CAMP JUSTICE, GUANTÁNAMO NAVAL AIR STATION, GUANTÁNAMO BAY, CUBA—A slow-motion circus rolled into courtroom 2 of the Expeditionary Legal Complex Saturday morning.
What had been planned as the straightforward arraignment of Khalid Sheikh Mohammed and four codefendants on charges of conspiring to commit the Sept. 11 attacks disintegrated into dark comedy.
Judge James Pohl scolded attorneys for refusing to follow his carefully articulated script for the proceeding; lawyers argued they were not qualified to defend their clients; translators interrupted lawyers to insist they be quiet; defendants refused to answer any questions from the judge or even acknowledge they’d been asked; one interrupted the proceedings first to pray and again to shout out his fears of being attacked by members of the prosecution team; another who started the day shackled to his chair ended it by stripping to the waist to display scars he claims were inflicted by his Guantánamo guards.
Meanwhile, Mohammed, the man at the center of this storm, sat quietly in the front row, leafing through the Quran and sporting a bushy beard, newly dyed henna red. Mohammed frequently turned to converse with his codefendants and at times seemed bemused as the affair unfolded around him. As remarkable, he declined to speak directly to the court at all. He has been a voluble presence in previous hearings, sometimes offering long, twisting lectures on behalf of what he describes as a great revolution.
Mohammed, a 47-year-old Pakistani known as KSM within the American intelligence community, is accused of planning and overseeing the execution of the Sept. 11 attacks, in which 2,753 died. The other four men are accused of assisting him in one way or another. They are:
—Ali Abdul Aziz Ali, 34, Pakistani, KSM’s nephew
—Walid bin Attash, 35, Yemeni, a key KSM aide
—Ramzi bin al-Shibh, 40, Yemeni, KSM’s alleged go-between to the hijackers while they were in the United States
—Mustafa al-Hawsawi, 44, Saudi, an al Qaeda bookkeeper who was captured with KSM in Pakistan in 2003
Given the defendants’ refusal to cooperate on even the simplest matters, the arraignment struggled to get off the ground. The hearing began at 9 a.m. and didn’t end until 10:30 that night with the reading of the charges.
All five men deferred entering pleas, a turnaround from 2008, when they all declared their intent to plead guilty, thereby hurrying to their martyrdom. They seem content now to take their time—and every indication is they will get it.
All five men declined to answer Pohl’s questions regarding the formal appointment of their defense attorneys. Provisional attorneys for the men argued that the defendants could not make any decisions until the court heard arguments about their treatment—that is, about torture—during what is now nearly a decade in captivity.
But Pohl declined to vary from his declared procedures, denying to hear any motions prior to appointment of counsel. After more than two hours of fruitless back-and-forth, Pohl made the provisional attorneys’ appointments permanent without the assent or disagreement of the defendants.
Pohl was prickly at times, but showed remarkable restraint when KSM led the defendants in prayers for nearly half an hour in the early afternoon while Pohl, 20-some attorneys, two dozen Army guards, and about half that many relatives of Sept. 11 victims waited in astonishment. Pohl deflected almost all arguments the defense attempted during the course of the day, saying the time for that would come when they next convene, in mid-June. He indicated he would eventually allow defense lawyers to argue every issue they wanted.
Attash was carried into court shackled to a chair for unexplained reasons. His attorney, Cheryl Borman, told Pohl that Attash has been repeatedly beaten by guards at Guantánamo. Treatment of the detainees was one of several issues over which Pohl has had little or no control, a point he made repeatedly when pressed by defense attorneys. He said he would investigate with the relevant authorities.
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His relative powerlessness over events beyond the courtroom illustrates one of the fundamental contradictions of the military-commission system first initiated under President George W. Bush, then suspended and finally reformed under Barack Obama. The central contradiction is the attempt to conduct trials granting nearly all rights enjoyed in U.S. courts when the defendants are prisoners in one of the most heavily controlled prisons in the world—held, usually in solitary confinement, under extreme security with almost all access to the outside world eliminated.
Their lawyers are thousands of miles away and require special flights just to get to Guantánamo. Even when there, the lawyers are unable to talk with their clients about anything the American military decides is classified. This includes all issues having to do with the prisoners’ treatment. Thus, defense lawyers can’t talk in court about the specifics of their clients’ complaints.
The courtroom itself is surrounded by high cyclone fences, braided with coiled razor wire, and watched by heavily armed guards. The roads and walkways leading to the court complex are a winding obstacle course littered with crash-resistant barriers. Passports are required for entry and exit to the court, even though access to the naval base is tightly controlled and nonmilitary personnel cannot move about without escorts.
Inside the room today, it felt as though the tide had somehow turned. Pohl seemed likely to accept a defense-favored target date for a trial—next year rather than the prosecution’s late-summer proposal. The commissions once seemed a quick if cumbersome solution to the problem of what to do with the Sept. 11 perpetrators. Today it seemed merely cumbersome.