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
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
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
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
In the voir dire process, in which, as Carol Rosenberg explained in
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
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
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
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.