It could all have been so different. Between September 2002 and April 2003, the five defendants in the forthcoming 9/11 trial at Guantánamo — Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali (aka Ammar al-Baluchi) and Walid bin Attash — were seized and transferred to secret CIA prisons, where they were subjected to an array of “enhanced interrogation techniques” including waterboarding. And yet they could, instead, have been questioned by skilled US interrogators for whom torture remains abhorrent, illegal and counter-productive.
From the top: Khalid Sheikh Mohammed (KSM), Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash.
These experts would, no doubt, have spent years building up cases against Mohammed and his alleged accomplices and encouraging them to talk through tried and tested methods. After 9/11, however, the White House and the Pentagon decided that skilled interrogation was somehow soft, and that al-Qaeda operatives were so tough that they had been trained to resist all types of traditional interrogation. But as the New Yorker’s Jane Mayer explained in an article last summer, a former CIA officer with knowledge of the techniques used on the al-Qaeda suspects explained, “A lot of them want to talk. Their egos are unimaginable.”
If the same techniques used before 9/11 had been applied after the attacks, it’s probable that by now Mohammed and his co-defendants would have been tried in a US federal court, and the reputation of the United States — as a country that does not torture, rather than one with a lying administration that claims it does not torture because it has cynically redefined what torture means — would still be intact. A case in point, completely overlooked in the administration’s defense of its “robust” new approach, is Ramzi Yousef — Khalid Sheikh Mohammed’s nephew, and the terrorist behind the first attempt to blow up the World Trade Center in 1993 — who, as Mayer has explained, “gave a voluminous confession after being read his Miranda rights,” following his capture and rendition to the US court system in 1995.
Instead of being condemned as a mass-murdering criminal, however, Khalid Sheikh Mohammed — a man with an “unimaginable” ego, and one, moreover, at the apex of a system of mass imprisonment in which thousands of innocent men and insignificant Taliban foot soldiers have been brutalized, held without charge or trial and deprived of the protections of the Geneva Conventions — has been allowed to portray himself as a “warrior” in an epic “Clash of Civilizations.”
In his tribunal at Guantánamo last year, Mohammed compared himself to George Washington fighting the British, and last week he spent several days in a courtroom at Guantánamo, unrelated to the US courts or the US military’s own judicial processes, in which he was free to bait the judge, Marine Col. Ralph Kohlmann, to play to the world’s media, and to make strategic use of his torture at US hands to score points against the system set up to try him.
The action unfolded slowly. At 9 am on Monday, four of the co-defendants gathered in the courtroom for hearings on a series of pre-trial motions, but one — Ramzi bin al-Shibh — was nowhere to be seen. Doubts had already been raised about the mental health of the Yemeni, and his lawyers — whom he is trying to dismiss, so that he can represent himself, like Mohammed and some of his other co-defendants — were seeking permission to appoint clinical and forensic psychologists to examine him. His lead attorney, Navy Cmdr. Suzanne Lachelier, stated that the defense team has doubts about his mental health, and noted that his medications include “a psychotropic drug prescribed to persons with schizophrenia.” As a report by the American Civil Liberties Union (ACLU) explained, Lachelier “referred to pleadings filed by the bin al-Shibh team that contained considerable additional evidence, which she could not discuss in court, which bolstered the claim that he was mentally ill and might not be competent to stand trial or able to participate in his own defense.”
Ramzi bin al-Shibh at his arraignment in Guantánamo on June 5, 2008. Sketch by courtroom artist Janet Hamlin.
In the end, the rest of the day’s planned discussions were derailed, as the authorities tried to work out what to do about bin al-Shibh’s refusal to appear. Although the military could have brought him to the courtroom against his will, they refused to do so without a formal order from Kohlmann. In the first surreal touch of the hearings, protracted discussions between Kohlmann and the prosecution were only halted when, as the Washington Post described it, Mohammed “raised his hand and offered to meet with bin al-Shibh in an effort to persuade him to come to court,” and was backed up by his co-defendants. Bin Attash explained, “I agree with my brother Sheikh Mohammed. We don’t have to do any fight with Mr. Ramzi. He doesn’t trust anyone in government, but he does trust us. With what has happened to us in this situation — we have all lost faith. But we have faith in each other.” Kohlmann refused to allow a meeting, but he did allow the co-defendants to write letters to bin al-Shibh, which they all signed.
The judge also stated that bin al-Shibh should be given another opportunity to meet with his lawyers, but he refused to let Cmdr. Lachelier meet him in his cell, in the prison’s secretive Camp 7, and explained that he would, instead, have to be “transported, hooded and shackled, in a van with blacked-out windows” to a meeting place. Pointing out that this might only add to her client’s reluctance to meet, Lachelier offered to be hooded herself and taken to Camp 7, but Kohlmann refused. As Denny LeBoeuf of the ACLU explained, it was “a remarkable suggestion that highlights yet again the absurdity of Guantánamo’s secrecy regime.”
As a bizarre spectacle, however, the hearings only really came to life on Tuesday, after bin al-Shibh had responded to the entreaties of his co-defendants, and all five men were in court together for the first time since their arraignment in June. On that occasion, Mohammed’s willingness to be a martyr had dominated the proceedings, but nearly four months later it was apparent that he had decided to take on the US government through the weaknesses in its novel judicial system.
In the voir dire process, in which, as Carol Rosenberg explained in the Miami Herald, “lawyers question a judge on his potential bias at trial,” Mohammed was allowed to grill Kohlmann about his background. “For a while,” as the Los Angeles Times noted, he “turned the tables on his captors and made the military judge justify his competency to preside over the trial.”
“Glaring and poking an occasional finger in the air,” Mohammed told Kohlmann, “The government considers all of us fanatical extremists,” and asked, “How can you, as an officer of the US Marine Corps, stand over me in judgment?” Insisting that he was attempting to work out if Kohlmann was a religious extremist, he continued: “[President] Bush said this is a crusader war and Osama bin Laden said this is a holy war against the crusades. If you were part of Jerry Falwell or Pat Robertson’s group, then you would not be impartial.’”
For his part, Kohlmann attempted to maintain his dignity, explaining that he was “currently unaffiliated with a church ‘because I’ve moved so often.’” He added that he had previously worshiped at “various Lutheran churches and Episcopal churches,” and the sub-text — that he was no religious fanatic — was clear. It was at this point that bin al-Shibh spoke out unexpectedly. “As far as I know your last name is a Jewish name, not a Christian name,” he said, prompting a terse response. “With regard to your observation about my heritage and background,” Kohlmann said, “it’s actually inaccurate. And I’ll leave it at that.”
Khalid Sheikh Mohammed and Walid bin Attash (left) during their arraignment on June 5, 2008, as drawn by Janet Hamlin.
Mohammed proceeded to ask Kohlmann about his views on torture. As part of the background materials supplied to him — or made available to the civilian lawyers who are voluntarily assisting him in his defense — he referred to an ethics seminar that Kohlmann had conducted at his daughter’s high school in 2005, in which the students had been asked to consider their responses to a “Ticking Time Bomb” scenario. Based on a fictional proposition that a bomb is about to go off, and an unwilling captive knows its location but is unwilling to disclose the information, the scenario is widely used by proponents of “enhanced interrogation techniques” to justify the use of torture.
Kohlmann explained that he encouraged the debate as part of “a complex question that might be dealt with differently if someone were specifically trying to save the nation or just looking at it from an ethical sense or just looking at it from a legal sense,” and dismissed a combative question from Mohammed — “It seems that you are supportive of the use of torture for national security?” — by stating, “I have no idea where that would come from.”
As Mohammed continued questioning Kohlmann, in what the Washington Post described as a “sometimes rambling disquisition,” he was “frequently unsatisfied,” as Josh Meyer described it in the Los Angeles Times, “and hit Kohlmann with a barrage of follow-up questions and sarcastic political commentary.” Kohlmann put up with this for some time, but when he was asked if he read books by Billy Graham or Pat Buchanan, and what movies he watched, he said that the questions seemed designed “to develop a personality profile,” and stated, “I decline to provide you with my reading list or my movie list.” Finally, after he had twice scolded Mohammed for failing to stick to the topic in hand, and Mohammed muttered aloud, “You reject to answer,” Kohlmann lost his patience. “You are not going to have free rein,” he exclaimed. “I will not allow you to act in a manner that is disrespectful to this court. Do you understand me clearly?”
Nevertheless, it was Mohammed’s day. Although Ramzi bin al-Shibh piped up at one point, declaring, “I am not mentally incompetent,” but haranguing Cmdr. Lachelier in a manner that did not necessarily justify his own appraisal of his mental state, the rest of the co-defendants seemed content to allow Mohammed to speak for them. Even the defense lawyers’ long list of relevant complaints, which, they insisted, would make it impossible for the men to receive a fair trial, were overshadowed by Mohammed’s grandstanding. At various points throughout the day, as the Los Angeles Times put it, they expressed concerns that “lawyer-client conversations may not be confidential,” complained that they “cannot talk to friends and family of the accused as part of their defense preparation without prosecutors finding out about it, which has scared off potential witnesses on their behalf,” and described the court translators as incompetent, which was proving to be “a severe hindrance for defendants who don’t speak English.”
Explaining how bad the situation was, Major Jon Jackson, the lawyer for Mustafa al-Hawsawi, said at the end of the day that his client “doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation.” But although he and other lawyers “asked for the transcripts of each day’s proceedings to be made available in English and Arabic so that they can go over each day’s events with their clients and make corrections for the record,” as the ACLU explained, the government “strenuously opposed the request,” stating that it was “enough for the defendants to be present and observe the proceedings.” This prompted Major Jackson to complain, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”
While a few commentators noticed these exchanges, however, most eyes were on Mohammed. As the Associated Press pointed out, “During breaks, Mohammed pivoted in his seat at his defense table and chatted amiably in Arabic with his co-defendants, who sat at their own tables arrayed behind him — despite complaints that he used a similar opportunity in June to pressure the others to reject their Pentagon-appointed defense lawyers.”
On the third and final day of this round of pre-trial hearings, as the Washington Post put it, “The loquacious Mohammed, as he does on most days, took the lead in speaking for the other four defendants.” Following up on claims made the previous day that Kohlmann’s background as a Marine prevented him from being impartial, he stated, “I believe that we are part of an inquisition,” adding that Kohlmann was an officer in the US military, “which is “currently occupying our Muslim holy lands. As I address the court now, your government is killing Muslims in Afghanistan and Iraq.” On another occasion, he said, “I don’t believe you respect Muslims. We are your enemy,” adding, with a sly broadside about how he and his co-defendants had been treated for years, “If this is the case, you could have killed us years ago instead of holding us for years under torture.”
The thrust of Mohammed’s remarks, however, focused on an admission by Kohlmann that he was due to retire in April. Asking the judge to disqualify himself from the case, he said, “It is clear you are retiring before [the trial] is completed,” and argued that, as a result, he “might inappropriately rush the proceedings.” Kohlmann replied that Mohammed’s claims were “completely wrong,” and “briskly rejected each argument offered as a basis for disqualification,” but the announcement of his departure was not reassuring. Although Kohlmann is the chief judge at the Commissions, and selected himself for the 9/11 trial, defense lawyers noted that, “with unused leave time,” he “could be gone as early as mid-January.” And that, as bin Attash’s lawyer, Lt. Cmdr. James Hatcher explained, would mean that “a new round of pretrial hearings would be required and the new judge would be forced to reexamine earlier rulings.” “It will,” he said, “make an already complex case even more complex.”
With Mohammed’s attention-grabbing antics out of the way, the rest of the day’s proceedings focused on “defense motions seeking more resources for the defendants and easier access to them for their attorneys, both by person and by phone.” Explaining that the prosecution was seeking “to improve access while maintaining security,” lead prosecutor Col. Robert Swann explained, as the Associated Press put it, that the government was “preparing to issue each defendant a laptop computer loaded with 40,782 pages of documents and more than 50 videos.” He added that “they could not safely be provided with requested printers or other equipment with electrical cords, presumably because of the danger of suicide.” It transpired, after Amanda Lee, one of Ali Abdul Aziz Ali’s attorneys, asked for the men to have “unfettered access to news articles so that they can be prepared to challenge expert witnesses for the prosecution,” that they currently only receive a redacted version of USA Today, and that their lawyers are prohibited from giving them other material when they meet them.
Away from Mohammed and the limelight, it is issues like these — and the other problems raised by the defense lawyers on Tuesday — that will be fought over until the next time the five men appear in a courtroom. As Major Jackson explained, “This is going to be a long, long, long battle before these accused get sentenced.” And while Lt. Cmdr. Brian Mizer, Ali Abdul Aziz Ali’s military lawyer, closed the proceedings by promising, “Torture is at issue in this case. It is going to be at the very center of this case,” my feeling is that it is, above all, Khalid Sheikh Mohammed who will remain at the center of the case, doing all he can to derail a system that is an inadequate substitute for a real trial.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
After this article was published on CounterPunch, I received the following message:
Hello Andy, is the second time I have the opportunity to comment on your article about American justice.
My Grandmother used to say that the law books are full of laws in your favor, but the problem is to find a Judge or an attorney willing to apply it in you favor, but my grandpa used to reply that justice comes from the size of the barrel of your gun or from what you had in your hip pocket.
The Guantanamo prisoners have no pockets nor guns.
Regards Anteo Sergovich
[…] fears are especially true in the cases of two of the men. Lawyers for Ramzi bin al-Shibh have long claimed that they have doubts about his mental health. Noting, during a pre-trial hearing […]
[…] after the men refused to leave their cells, and in the afternoon, Khalid Sheikh Mohammed, the unarguable showman of the group, refused to attend, as did Ramzi bin al-Shibh, even though the hearing was convened to […]
[…] Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark […]
[…] good show of demonstrating that bin al-Shibh is schizophrenic and on serious medication, when they argued throughout 2008 that he was not fit to stand trial, and I have seen no evidence to suggest that bin al-Shibh was in […]
[…] Worthington, Andy (September 29, 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials?, […]
[…] Worthington, Andy (September 29, 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials?, […]
[…] a hearing in September, Kohlmann had admitted that he was due to retire in April 2009, prompting Mohammed to ask him to […]
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