[Ppnews] Is Khalid Sheikh Mohammed Running the 9/11 Trials?

[Political Prisoner News]

http://www.counterpunch.org/worthington09292008.html

September 29, 2008


"Torture is at the Very Center of the Case"


Is Khalid Sheikh Mohammed Running the 9/11 Trials?

By ANDY WORTHINGTON

It could all have been so different. Between 
September 2002 and April 2003, the five 
defendants in the forthcoming 
<http://www.counterpunch.org/worthington02122008.html>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 
<http://www.counterpunch.org/worthington02072008.html>waterboarding. 
And yet they could, instead, have been questioned 
by skilled US interrogators for whom torture 
remains abhorrent, illegal and counter-productive.

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 
<http://www.andyworthington.co.uk/2007/08/10/jane-mayer-on-the-cias-black-sites/>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.


Day One

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.”

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.”


Day Two

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 
<http://www.andyworthington.co.uk/2008/06/06/in-a-legal-otherworld-911-trial-defendants-cry-torture-at-guantanamo/>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.”

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.”


Day Three

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 a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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