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 U.S. interrogators for whom torture remains abhorrent, illegal, and counterproductive.
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 U.S. 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 U.S. 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 U.S. courts or the U.S. 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 U.S. hands to score points against the system set up to try him.
The action unfolded slowly. At 9 a.m. 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."
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 codefendants 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 codefendants, 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 U.S. 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 U.S. 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 subtext 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."
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 codefendants 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, Maj. 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 Maj. 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 codefendants, 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 pretrial 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 U.S. 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 codefendants 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 called Mohammed’s claims "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 Maj. 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.