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, that first reincarnation of the commissions was struck down as illegal by the Supreme Court in June 2006. The commissions were revived by Congress a few months later and were then tweaked and revived by Barack Obama in the summer of 2009, despite criticism from legal experts.
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 minor at the time of his capture; Noor Uthman Muhammed, a training-camp instructor; and Majid Khan, an accused accomplice of Khalid Sheikh Mohammed.
Another case — that of Abd al-Rahim al-Nashiri, the accused 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 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 fulfill 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 were the behavior of Ramzi bin al-Shibh, whose mental health has long been called into question by his lawyers, and 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. His restraints were removed only when he promised to behave.
At one point bin al-Shibh and Ali Abd al-Aziz Ali interrupted the proceedings by praying. At another point bin al-Shibh shouted out, comparing Guantánamo to the prisons of Muammar Gaddafi, the former dictator of Libya. “Era of Gaddafi is over, but you have Gaddafi in [Guantánamo] camp,” he said. He added, “Maybe they are going to kill us and say that we are committing suicide.” That was a sign, perhaps, that he had heard of the suspicious circumstances under which five prisoners died at Guantánamo: three in June 2006, one in 2007, and another in 2009. Perhaps he had even heard about the suspicious 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 who had been rendered to Egypt, where, under torture, he had falsely confessed that there were connections between al-Qaeda and Saddam Hussein. Those supposed connections 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 that was happening, the defendants were mostly silent and passed around the latest issue 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; he 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 he 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.” 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. When the accused removed their headphones, through which they were receiving a translation of what Judge Pohl was saying, he explained, 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 were the most explicit attempt to allow discussion of how the men have been treated. 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 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.
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.”
The ACLU explained that
the 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 U.S. custody.”
The 40-second delay was used briefly on only 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. 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 spoke at their pre-trial hearings — in the cases of Mohammed 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.
That is not unusual in the sense that every word exchanged between the other prisoners in Guantánamo and their lawyers is also presumptively classified. In the cases of the other prisoners, at least parts of their 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 that is to prevent any discussion of the torture to which the 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, Colonel Davis stated that
the 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.”