On Saturday, the eyes of the world were on Guantánamo, as Khalid Sheikh Mohammed and four other men accused of planning and facilitating the terrorist attacks of September 11, 2001 — Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi and Walid bin Attash — appeared in a courtroom for the first time since December 2008. All were dressed in white, apparently at the insistence of the authorities at Guantánamo, and most observers made a point of noting that Mohammed’s long gray beard was streaked red with henna.
For the Obama administration and the Pentagon, the five men’s appearance — for their arraignment prior to their planned trial by military commission — was supposed to show that the commissions are a competent and legitimate alternative to the federal court trial that the Obama administration announced for the men in November 2009, but then abandoned after caving in to pressure from Republicans. The five defendants face 2,976 counts of murder — one for each of the victims of the 9/11 attacks — as well as charges of terrorism, hijacking, conspiracy and destruction of property, and the prosecution is seeking the death penalty.
Unfortunately for the administration, the omens were not good. The military commissions have been condemned as an inadequate trial system ever since the Bush administration first resurrected them in November 2001, intending, in the heat of post-9/11 vengeance, to use them to swiftly try and execute those it regarded as terrorists. However, after long delays and chaotic hearings, this first reincarnation of the commissions was struck down as illegal by the Supreme Court in June 2006. The commissions were then revived by Congress a few months later, and were then tweaked and revived by President Obama in the summer of 2009, despite criticism from legal experts.
However, in all these years, just seven cases have been decided. Under Bush, there was a plea deal for the Australian David Hicks; a short sentence for Salim Hamdan, who drove a car for Osama bin Laden; and a life sentence for Ali Hamza al-Bahlul, who made a video for al-Qaeda, and refused to participate in his trial. Since Obama revived the commissions another four cases have been decided by plea deal — those of Ibrahim al-Qosi, a cook; Omar Khadr, a child at the time of his capture; Noor Uthman Muhammed, a training camp instructor; and Majid Khan, an alleged accomplice of Khalid Sheikh Mohammed.
Another case — that of Abd al-Rahim al-Nashiri, the alleged bomber of the USS Cole — is also proceeding to trial, but it is fair to say that the 9/11 trial is the barometer of whether or not the commissions are credible, or whether they are a second-tier judicial system, and the proceedings are little better than show trials.
On that basis, Saturday’s arraignment rather spectacularly failed to fulfil the administration’s hopes. As the Guardian noted, the hearing “descended into chaos,” as the defendants “refused to acknowledge the judge and their lawyers repeatedly challenged the legitimacy of the court.”
At the last appearance of the five men in 2008, Khalid Sheikh Mohammed had tried to plead guilty, and to become a martyr by being executed, but on Saturday he was more in the mood for quiet resistance, undermining the proceedings by refusing to acknowledge the judge. As the Washington Post described it, “The normally loquacious Mohammed refused to speak publicly throughout Saturday’s hearing, a stance that was largely adopted by all the other defendants, who tend to follow his lead.”
Also noteworthy was the behavior of Walid bin Attash, an amputee, who was brought to the courtroom strapped into a restraining chair, after some kind of altercation outside, and only had his restraints removed when he promised to behave, and the behavior of Ramzi bin al-Shibh, whose mental health has long been called into question by his lawyers.
At one point bin al-Shibh and Ali Abd al-Aziz Ali interrupted the proceedings by praying, at at another point bin al-Shibh shouted out, comparing Guantánamo to the prisons of Muammar Gaddafi, the former dictator of Syria. “Era of Gaddafi is over but you have Gaddafi in [Guantánamo] camp,” he said, adding, “Maybe they are going to kill us and say that we are committing suicide.” This was a sign, perhaps, that he had heard of the dubious circumstances in which five prisoners died at Guantánamo: three in June 2006, and two others in 2007 and 2009, and had even, perhaps, heard about the dubious death, in a Libyan prison in May 2009, of Ibn al-Shaykh al-Libi, the emir of a training camp in Afghanistan who had also been held in CIA “black sites,” and had been rendered to Egypt, where, under torture, he had falsely confessed that there were connections between al-Qaeda and Saddam Hussein, which, nevertheless, were used to justify the invasion of Iraq in March 2003.
The arraignment took 13 hours to complete, although that was largely because of the men’s defense lawyers, who persistently attempted to question the credibility of the commissions, and made the most of their opportunity to question the judge’s impartiality, through the process known as voir dire. While this was happening, the defendants were mostly silent, and passed around the latest copy of the Economist, which may or may not have provided a boost to the London-based weekly magazine’s appeal. According to the Washington Post, throughout the hearing Khalid Sheikh Mohammed “whispered messages to his comrades, and they chatted and joked with one another during a short recess.”
By the end of the arraignment, none of the defendants had entered a plea, and the judge, Army Col. James Pohl, adjourned proceedings until June 12, and tentatively set a trial date of May 2013, although, as the Guardian explained, he “acknowledged that there are likely to be more delays.” Throughout the day, he had tried to maintain his composure, but occasionally appeared rattled. When it became clear that the accused were going to refuse to participate in the proceedings, he stated that a plea of not guilty would eventually be entered on their behalf, adding, “One cannot choose not to participate and frustrate the normal course of business,” and at another point he asked in exasperation, “Why is this so hard?”
Leading the defense’s complaints on Saturday, Khalid Sheikh Mohammed’s lawyer, David Nevin, told the court that “the world is watching” the proceedings, and when the accused removed their headphones, through which they were receiving a translation of what Judge Pohl was saying, he explained that, in Mohammed’s case, “The reason he’s not putting the headphones in his ears is because of the torture imposed on him.” Nevin then “asked to be allowed to elaborate,” as the Guardian described it, but Judge Pohl refused.
Nevin’s attempts to raise the question of the men’s torture in secret CIA prisons for up to three and a half years before their transfer to Guantánamo in September 2006 was the most explicit attempt to allow discussion of how the men have been treated, although as was noted in the Daily Beast by Terry McDermott (the author, with Josh Meyer, of The Hunt for KSM: Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed), Judge Pohl deflected almost all the defense’s arguments, telling the lawyers that there would be time for them to raise whatever they thought was important at the next hearing in June. As McDermott explained, “He indicated he would eventually allow defense lawyers to argue every issue they wanted.”
In his perceptive article, McDermott noted that, after Walid bin Attash’s attorney, Cheryl Borman, had told Judge Pohl that her client had been “repeatedly beaten by guards at Guantánamo,” he was obliged to point out that the treatment of the prisoners was something over which he “had little or no control,” although he stated that he “would investigate with the relevant authorities.” For McDermott, his “relative powerlessness over events beyond the courtroom” provided a vivid demonstration of the “central contradiction” of the commissions, which he described as “the attempt to conduct trials granting nearly all rights enjoyed in US 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.”
As McDermott added:
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.
Just before the hearing began, the ACLU submitted a motion (PDF) calling for the judge “to reject the government’s attempts to censor any statements by defendants in the 9/11 military commission proceedings about their detention and treatment in US custody.”
As the ACLU explained:
[T]he government has asked or will ask this Commission to issue a protective order accepting the government’s claim that any statements made by the defendants concerning their “exposure” to the Central Intelligence Agency’s (“CIA”) detention and interrogation program are presumptively classified and must be kept from the public. The government has also asked or will ask the Commission to accept its assertion that defendants’ statements concerning their personal knowledge and experience of their imprisonment and treatment in Department of Defense (“DOD”) custody are classified and must be suppressed.
The ACLU also asked the judge not to accept the government’s insistence that there must be “a 40-second delay in the audio feed the government makes available to the public, media, and representatives of non-governmental organizations who observe the tribunal,” in order to “permit a courtroom security official to cut off the audio feed whenever the defendants describe their detention and interrogation in US custody.”
The 40-second delay was only used briefly on one occasion on Saturday, apparently when Walid bin Attash said something that prosecutors wanted suppressed, but how secrets are dealt with is central to the 9/11 trial and its claim to credibility, and it remains to be seen whether Judge Pohl will genuinely acknowledge the tensions between the absolute secrecy surrounding the Bush administration’s torture program and the need for something that resembles a fair hearing in the men’s trial by military commission.
What is clear, at present, is that, in the five years and eight months since Khalid Sheikh Mohammed, his co-defendants and nine other “high-value detainees” arrived at Guantánamo from the CIA’s secret prisons, the only words that any of them have uttered that have been made available to the public are the words they said at their pre-trial hearings — in the cases of KSM and his co-accused, what they said in June, September and December 2008, and on Saturday. Everything else — every single word that has been exchanged between these 14 men and their lawyers — is presumptively classified.
This not unusual in the sense that every word exchanged between the other prisoners in Guantánamo and their lawyers is also presumptively classified, but in the cases of the other prisoners, at least parts of these exchanges have been unclassified after being reviewed by a team of Pentagon censors known as the privilege review team. In the cases of the “high-value detainees,” however, every single word remains classified.
The only possible reason for this is to prevent any discussion of of the torture to which these men were subjected in CIA “black sites” from leaking out of Guantánamo.
This is something that was noted last week in an article for Salon by the commissions’ former chief prosecutor, Col. Morris Davis, who resigned in October 2007, when he was placed in a chain of command under William J. Haynes II, the Pentagon’s General Counsel, who insisted that information derived through the use of torture would be used in the commissions.
Dismissing the administration’s spurious claims that military commissions are necessary because soldiers on a battlefield cannot spend their time worrying about reading rights to prisoners in wartime, Col. Davis stated:
[T]he reason the apologists want a second-rate military commission option is because of what we did to the detainees, not because of what the detainees did to us. This is not about the exigencies of the battlefield and the problems our soldiers face trying to fight a war; this is about torture, coercion, rendition and a decade or more in confinement without an opportunity to confront the evidence — abuses that would have us up in arms if done to an American citizen by some other country — that make the tarnished military commissions uniquely suited to try and accommodate the small category of cases where we crossed over to the dark side.
And that, in short, is the key problem with the commissions that dare not speak its name, and that Judge Pohl will have to decide whether or not to tackle — whether the search for justice is even possible when those who are supposed to be subjected to it were also the victims of America’s journey to “the dark side.”
Note: The courtroom sketch above is by Janet Hamlin, and is reproduced courtesy of Janet Hamlin Illustration.
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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.
As published exclusively on the website of the Future of Freedom Foundation.
Thank you for this article – the stories here in the US are full of heart-wrenching sadness and over the top anger as displayed by the family members of 9/11. There is rarely a story that is not spun to make the defendants appear not as human beings but only as arrogant, hostile and uncooperative/unresponsive.
Thanks, cosmicsurfer. Trying to even find out anything about who they are is almost impossible when everything remains presumptively classified. That’s very cynical, and although I understand that many people in the US don’t want to know anything about them, and are happy for them to be the bogeymen of legend that has been built up over the last ten years, gagging defendants isn’t really the sort of behavior that enables the US to even claim that it respects the rule of law, and the principle that everyone is innocent until proven guilty, and has the right to be defended in a courtroom where one side doesn’t have their arms tied behind their backs and a metaphorical bag on their head.
The US really needs to look closely at our reputation and our actions. WHY is it that we are so distrusted by so many? THIS is exactly why!
But the behavior of the government is not solely restricted to non-Americans. In Denver, at the trials of Occupy members arrested in protests, the judge would NOT allow anyone in the courtroom other than defendant, prosecution, defense attorney, jury, and court recorder. He, also, refused to allow any recording devises to include paper and pens (even those of the defense attorney).
Good point, cosmicsurfer. And what it shows, I believe, is how the poison of Guantanamo, where every right was initially taken away from the men and boys held there, and everything had to be fought for over the years, bleeds into the domestic judicial system when it is allowed to continue, essentially unchallenged, as it has under Obama.
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You have it exactly correct. The criminalization of the poor (Denver’s mayor is trying to impose a crime for being homeless called “urban camping ban” and has nearly everyone on the City Council approving it) just needs to get 4 more to sign off. The same City Council that gave themselves a raise when the City had to cut jobs and programs, the same city that ranks 6th or 7th in the nation for brutality and has spent more than $4 million in judgments against the police for illegal use of force and brutality over 3 years.
Yes, that’s pretty horrible – and it reminds me of how the shoddy treatment of the poor, and the disturbing enthusiasm for prisons, also fed into Guantanamo at the very beginning, as well as Guantanamo then bleeding back into the conduct of business on the US mainland. It’s all connected, of course.
That is being proven throughout the country – Arizona and their immigrant laws, demanding “papers” to be carried in order to prove citizenship or “green card”/VISA now has spread to 2 or 3 other states, the vigilantes at the southern borders, the defunding of shelters, school programs and food assistance – All examples of a loss of respect for the common man and the destruction of our own constitution as we allow our rights to be removed, our safety to be threatened and our freedom lost….SOMEBODY needs to start a movement – a protest to re-OCCUPY the country, demand our rights and support the common good (How Commie revolutionary of me)
It sounds about right, cosmicsurfer. It certainly sounds more constructive than what passes for important discussions in Washington D.C. and in the mainstream media.
I gave this the wrong heading, I think. My title should have focused on how the US government is obsessed with trying to hide evidence of torture by refusing to unclassify a single word that has been exchanged between the “high-value detainees” – the torture victims – and their lawyers. Every word has been classified since they arrived at Guantanamo in September 2006. Every single word.
On Facebook, Philip Rogers wrote:
Andy, thank you very much for posting this. Your Stirling work is like a beacon of light in all the dark shit that surrounds this nasty business. What is strikingly clear however is that you do ALL this when so many Muslims (with the exeption of a notable few) keep their mouths shut. Your posts, whether on this subject matter or on all the others that you frequently write about are like a breath of fresh air and I for one appreciate them greatly.
Thank you, Philip. I’m very glad of your support.
Ahmad Belal wrote:
Andy, dig out Pakistani dungeon’s. There is possibility of thousands innocents, taken into custody/ Kidnapped from their own houses by US and Pakistani’s adventurists. You know the facts more than me how many been handed to US. NO Trials! No Convictions! No Rules! Looks like living in Jungle. Allah knows best.
Thanks, Ahmad. I wish I did have time to look into it. It is a disgrace, of course, and only a brave few souls have taken it upon themselves to examine it – there’s Amina Masood Janjua, for example. I wrote here about her long struggle to discover the whereabout of “Pakistan’s Disappeared,” including her husband: http://www.andyworthington.co.uk/2011/03/31/amina-masood-janjua-champion-of-pakistans-disappeared-tells-her-story-to-cageprisoners/
And there’s also the dreadful situation in Balochistan, of course, which I covered here, cross-posting an article by Declan Walsh: http://www.andyworthington.co.uk/2011/03/30/torture-and-murder-in-balochistan-declan-walsh-on-pakistans-secret-dirty-war/
cosmicsurfer wrote (in response to my comment at 10, above):
I was thinking about the Gitmo trials article. As we discussed yesterday, the spin in the US is to make out everyone held in that hell to be evil.
Anything expressed differently has a tough haul. KSM is looked at as the 2nd most evil person next to Bin Laden himself, the victims’ families being the representatives of 9/11. We, as a country, refuse to move past the attack on the towers – we grovel in it, we rend and tear and scream; we refuse to let go or to learn from it. Whenever anyone shines a light on the REAL reasons why it happened, they are vilified. Ward Churchill, a professor in CO lost his job and was sued – even the governor got involved to destroy him; Bernie Sanders tried to bring up the treatment of people around the world and he has been attacked; Kucinich, congressman from Ohio – no longer in Congress.
I think you hit a sore spot yesterday – a good thing.
Thanks, cosmicsurfer, for the hopefully astute analysis. I do think I missed a trick with the title, but you’re also right about the prevailing point of view and the compulsion to hold onto the “victim” narrative.
[…] men accused of initiating and being involved in the terrorist attacks on September 11, 2001 was in May this year, and, as is usual, the mainstream media turned out in force. That occasion was the formal […]
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