[Pnews] Alka Pradhan v. Gitmo - Aside from trying to win a trial that hasn’t yet begun, her job is to remind the tribunals, that her client is human

Prisoner News ppnews at freedomarchives.org
Thu Dec 28 13:57:38 EST 2017


https://www.nytimes.com/2017/12/19/magazine/alka-pradhan-v-gitmo.html?smid=fb-share 



  Alka Pradhan v. Gitmo

By JEFFREY E. STERN- DEC. 19, 2017

------------------------------------------------------------------------

The Galaxy 19 is a communications satellite that orbits over North 
America, beaming free-to-air programming to hundreds of thousands of 
households. It also happens to be the way detainees at Guantánamo Bay 
get their television. The satellite carries a wealth of religious 
programming, from “Bible Explorations” to “God’s Learning Channel” to 
“Global Buddhist Network” — not a lineup well tailored to the particular 
viewing interests of the Gitmo demographic. What detainees tend to be 
most interested in is current events, and among the news channels that 
the satellite carries, RT is one of the most popular. So for lawyers who 
want their Guantánamo clients to see that their interests are being 
represented, RT is probably the best option. For that reason, in 2014, a 
young defense lawyer named Alka Pradhan became a frequent guest on the 
channel. And because Pradhan is technically an employee of the 
Department of Defense, her appearances constitute one of countless 
idiosyncrasies of Gitmo: a contractor for the United States military 
using a Russian propaganda channel while working for Qaeda terror suspects.

That was one way she wound up auditioning, unwittingly, for one of the 
most high-profile detainees still there: Ammar al-Baluchi, the 
39-year-old Pakistani man accused of running money for the Sept. 11 
attacks. In 2015, when Baluchi won approval to add a new lawyer to his 
team, he wanted the woman he’d seen on RT, defending his neighbors with 
so much vigor. He’d studied her media appearances so closely that he 
knew her tics, her tendency to put a hand up and partly block her mouth, 
and by the time they met in person, he felt as if he already knew her. 
Since then, Pradhan’s sole job has been to defend the suspected Qaeda 
moneyman. The government is trying to execute him, along with four 
co-defendants, all charged with organizing the worst terrorist attack in 
the nation’s history.

Pradhan’s title is “human rights counsel.” Aside from trying to win a 
trial that hasn’t yet begun, her job is to remind the tribunals, and as 
much of the world as she can, that her client is human, that he has 
rights and that those rights have been brutally violated. She believes 
Americans don’t like to think about the fact that their country tortured 
people and put them in blindfolds and flew them to an island nation with 
which it had no diplomatic relations. That these men were detained for 
12 years, some of them 15, and even on their release were often dropped 
in countries that they had never been to and sometimes ones they hadn’t 
heard of: Syrians in Uruguay, Tunisians in Slovakia, a Yemeni in 
Estonia, Uighurs in El Salvador, Palau and Bermuda.

What’s more, a law passed in 2011 prevents anyone ever detained at 
Guantánamo Bay from coming to America, even to the supermax facility in 
Colorado that no one has ever escaped from, even if you’re demonstrably 
innocent, as if the place itself taints you. The law also blocked trials 
in America for any Gitmo detainee, even those against whom the United 
States may have had viable terrorism cases. These are the actual 
masterminds, the hardened jihadists — not the ones swept up by 
indiscriminate bounty programs and a credulous intelligence apparatus, 
which was the case for an overwhelming majority of them. The law means 
America can’t try Sept. 11 terror suspects in America. Instead, a $12 
million ultrasecure Expeditionary Legal Complex was set up on an old 
airstrip on the base, and for the last five years, prosecutors and 
defense lawyers have been arguing about how to hold a trial there. No 
one can say for sure when, or even if, trials will begin. The 
proceedings seem stuck in an interminable pretrial phase.

When Pradhan flies down to Gitmo, which she does every month or two, her 
conversations with her client often have less to do with proving his 
innocence than with what has happened to him since his suspected crimes. 
One of the first things she learned about Baluchi, before they met, was 
that the C.I.A. had tortured him, and she has come to believe that 
America has waterboarded away its ability to convict him. It’s an 
international norm that countries don’t execute people they have 
tortured; the Geneva Conventions go as far as to say such prisoners must 
be rehabilitated. If America executes Baluchi, Pradhan believes, it will 
cede whatever eroding toehold it has on a moral high ground. Beyond 
that, what concerns her is that her client is suffering; that he has 
real physical and psychological injuries from his torture that have yet 
to be addressed. The way she sees it, by denying him adequate treatment, 
the government has continued to torture him.

"Everything that comes out of his mouth, and everything that he writes 
on a piece of paper, is presumptively classified. It doesn’t matter if 
he writes down the lyrics to a song by Miley Cyrus. It’s classified."

So on a morning of brutal January weather, two days after Donald Trump’s 
Inauguration, Pradhan, who turned 36 this month, left her husband and 
young daughter at home in Washington and boarded a plane at Andrews Air 
Force Base to fly past tornadoes and put herself between her government 
and a man accused of helping arrange the murder of 2,976 people. On 
board were defense lawyers, prosecutors, the judge, family members of 
Sept. 11 victims, interpreters, paralegals and the press corps. 
Virtually everyone needed to carry out what is arguably the trial of the 
century is airlifted to the Caribbean every month or so, which is always 
inconvenient, but on this trip, it was also terrifying.

Three hours after a harrowing takeoff through heavy winds and horizontal 
rain, the plane dropped below cloud cover toward the southeastern tip of 
Cuba, where the sky was clear but the wind was full. Six-foot swells 
rolled in the bay. High gusts whipped the plane as it moved toward the 
runway, and it yawed too steeply. A wing swung toward the runway; in the 
cabin, arms moved in unison to armrests. Pradhan got nervous. The pilot 
overcorrected, sending the other wing downward. Outside, a young Navy 
man watching the approach turned away to cross himself as the banking 
jet overshot the tire-stains left by previous landings, heading for the 
water. Pradhan was now acutely aware of the plane’s size and the speed 
with which it was running out of runway. She saw a wing nearly scrape 
the ground, and she braced for impact.

Finally, the wheels hit, torsos shifted, the smell of scorched rubber 
and the sound of screeching wheels arrived at the same time. The plane 
taxied and stopped, the forward door opened and an incongruously chipper 
man climbed aboard. “Welcome to sunny Guantánamo Bay!” He was the 
officer in charge of Military Commissions South, but he sounded more 
like a cruise director. “Victim families first!”

*Pradhan was an* intern at the United Nations headquarters in 2003 when, 
7,000 miles away, a team of Pakistani rangers tracked down Ammar 
al-Baluchi in Karachi and apprehended him. Pradhan would later spend 
years trying to find out from the American government exactly what 
happened next. The government has not been forthcoming about these 
details, but by cross-referencing C.I.A. cables, other documents 
obtained by the Senate Select Committee on Intelligence, comments to the 
press by unnamed officials with access to the Senate report’s classified 
source material and a small number of declassified letters that Baluchi 
himself has written, it’s possible to develop a partial picture of what 
Baluchi’s time in custody was like.

>From C.I.A. cables, we know that even in the process of being detained, 
Baluchi was forthcoming. The Pakistanis held him for about a week and 
found him cooperative. One official used the word “chatty.” Even when 
Baluchi was in Pakistan’s custody, the C.I.A. was monitoring his 
interrogation on a video feed, and agents sent cables back to Langley 
saying the interrogation was producing intelligence.

They decided to torture him anyway. The C.I.A. extracted Baluchi from 
Pakistan’s custody and took him to the Salt Pit, a secret black site 
near Kabul, according to officials who spoke to The Washington Post in 
2014. This site was also known as Cobalt, and one interrogator, during 
an internal review, described it as an enhanced-interrogation technique 
in and of itself. Another called it the closest thing he’d seen to a 
dungeon. Detainees there were stripped down, bound with tape and then 
dragged, naked, up and down the halls, while people punched them. 
Baluchi says his head was dunked in a tub of ice water, his face held 
under the surface until he thought he was drowning. His head was shaved, 
then driven against a wall repeatedly, so forcefully and so many times 
that he saw sparks of light exploding in front of his eyes, growing in 
size and intensity until he experienced what felt like a jolt of 
electricity. His vision went dark, and he passed out.

He came to in a different room, perhaps a different building, maybe even 
a different country: We know from media reports that several months 
after the Salt Pit he was taken to a black site in Romania. Impossibly 
loud heavy-metal music played, intermixed with grating noises that felt 
to Baluchi as if they were digging into his ears and pounding his brain. 
He didn’t know how long he’d been unconscious. He was naked. The room 
was cold and dark. He remembers that he was too weak to stand, but that 
his hands were suspended above his head in cuffs attached to the 
ceiling, so as his body slumped, his weight pulled his wrists into the 
metal, which bore into his skin. When he complained, his wrists were 
levered higher.

He was dehydrated, and his head throbbed, and when captors came by, 
banging a rod against the steel door and shining lights in his face, he 
begged for water. Someone came with a cup, showed it to him and poured 
it out. This ritual was repeated.

He was kept awake. When he fell asleep, he was punched. His legs 
throbbed and swelled from standing. Finally, Baluchi saw a doctor 
approach. The doctor measured the swelling and approved Baluchi for more 
abuse. In Baluchi’s account, his hands were kept bound for months, so 
long that when he was finally transferred to yet another black site, his 
captors couldn’t remove the handcuffs because the metal had rusted shut, 
and someone had to find bolt cutters.

We either don’t know or can’t corroborate all of the techniques that 
were used on Baluchi, because so much of the program remains classified, 
withheld even from Pradhan and her co-counsel. (The C.I.A. declined to 
comment specifically on Baluchi’s claims of torture.) And though Baluchi 
has written extensively about what happened to him, only a small portion 
of what he thinks, writes and says makes it through classification 
review. But we know that he was subjected to the C.I.A.’s rendition 
program for nearly three years, between his arrest in Pakistan and his 
arrival at Gitmo. It was a period during which he had no contact with 
his family but knew that they thought he was dead. In a sense, he was. 
He goes by Ammar al Baluchi because that name — an alias he had used — 
was the one the C.I.A. called him during his torture. Baluchi feels his 
birth name, Ali Abdul Aziz Ali, is now foreign to him, that it belongs 
to a different person, someone who died in custody.

We know that all of it — the movement, the music, the creative 
administration of pain — was part of the C.I.A.’s attempt to instill in 
him a sense of “learned helplessness.” We know that “learned 
helplessness” is a theory developed in the 1960s by psychologists who 
gave electrical shocks to dogs. And according to the Senate 
investigation, the program produced no new intelligence from Baluchi or 
anyone else subjected to it.

*While Baluchi was* being escorted through the C.I.A.’s rendition 
program, Pradhan was collecting degrees from America’s finest academic 
institutions. She was raised on stories about her great-grandfather, who 
taught himself law in a remote north Indian village and then spent his 
days defending highway bandits. Her grandfather worked for the United 
Nations, so she saw international relations as glamorous. She hybridized 
the two interests: a bachelor’s degree in international relations and a 
master’s in international law from Johns Hopkins, a law degree from 
Columbia and a master of laws with a focus on human rights from the 
London School of Economics.

After three years at the law firm White & Case in New York, angling to 
get on every foreign assignment she could, she quit and began working 
for a series of nonprofit groups, refocusing on what she figured to be 
the most grievous violation of international law that her country was 
actively carrying out — the detentions at Guantánamo Bay. In 2013, she 
began working for Reprieve, an organization that helped defend detainees 
there. One of her first clients was Emad Hassan, a genial young man with 
an easy sense of humor, held at Gitmo because of a translation error. He 
was born 115 miles from a Yemeni village with the unfortunate name of Al 
Qa’idah, and that’s what he was thinking about when a U.S. serviceman 
asked whether he had “any connection to Al Qaeda.” He said yes.

Even after the mistake was made known, there was no easy way to process 
him out. He spent 13 years in detention. When Pradhan first met him, 
what struck her, more than anything else, was his hair. He had long, 
loopy braids sprouting from his head, which reminded her of the rapper 
Coolio. He explained that it was for video chats with his family. “I’m 
trying to grow a ’fro,” he said, grinning, “because it makes my brothers 
and sisters laugh when they see me. It makes my mother laugh. My mother 
never laughs anymore.”

Then, within seconds, he was crying. He asked why this was happening and 
when it would end. He was all over the place; Pradhan found it 
heartbreaking. It was formative for her, meeting this man with the 
ridiculous story and the ridiculous hair, whose experience was a 
caricature, a symbol of a system at its absurd extreme. But at that 
point Pradhan had a sample size of one. For her, Gitmo was Emad Hassan.

She met six detainees and represented even more Guantánamo clients 
remotely, arguing with anger on behalf of hunger strikers being 
force-fed, trying to persuade foreign countries to take clients cleared 
for release and trying to educate the public, lest they forget about 
Gitmo. And when the team defending one of the suspected Sept. 11 
plotters, by then in his 12th year of United States custody, won 
approval to hire a new lawyer to focus on human rights, he wanted the 
woman who looked as if she could be his sister. He wanted Pradhan.

She was the only woman on the team when she joined, and that helped: 
Baluchi thinks women are more empathetic. And it doesn’t hurt that 
Pradhan and Baluchi have familiar backgrounds. His family is from 
Pakistan, though he wasn’t born there; hers is from India, though she 
wasn’t born there. He likes to speak Urdu, she likes to speak Hindi; 
they are essentially the same language, written differently. They were 
both international, even as children, she born in Canada, living in 
America, spending summers with a grandfather in Geneva; he lived in 
Pakistan, Iran, Dubai and Kuwait and learned a half dozen languages 
before he turned 20. He’s Westernized but rooted in the East; he’s wise, 
quick-witted and surprisingly funny, and these happen to be precisely 
the qualities she values most in friends. So they treat each other like 
friends. When she’s not with him at Gitmo, she sends him three letters a 
week.

Lt. Col. Sterling Thomas, another member of Baluchi’s defense team, sees 
a different reason the detainee has bonded so strongly with Pradhan. 
“One of the things that strikes me most closely, as one of the few 
African-American officers in the JAG corps and in the military 
commissions,” he says, is “Ammar’s understanding of the differences and 
uniqueness of people of color.” Thomas believes Baluchi and Pradhan have 
a genuine, profound connection, and that it derives from the fact that 
“they can look at their similarities of background and say: ‘O.K., look 
I’ve been in situations that are similar to you, where you feel you’re 
the only person of a certain background in a world, where you face that 
additional scrutiny based on being the person who is different. You face 
that additional challenge being the person whose credentials might be 
questioned.’ ” The way Thomas sees the relationship, Pradhan and Baluchi 
connect because Baluchi is a keen observer of American culture and sees 
in Pradhan someone who “understands what it’s like to be otherized, 
dehumanized.”

Because Pradhan wears a head covering in court, you would be forgiven 
for assuming she’s Muslim. (Her family is, in fact, Hindu.) Once, during 
a hearing I watched at Fort Meade via an encrypted satellite feed, I saw 
her get up, begin speaking and then stop midsentence to address 
something that nagged at her. She told the court that everyone had been 
mispronouncing the name of a city in Pakistan, and because it felt to 
her like a way of dehumanizing her client, she commenced a history 
lesson about how the city got its name. It was a striking moment. It 
felt like the world’s most bold cultural-sensitivity training, a brown 
woman in Muslim dress instructing a largely white, largely male and 
largely U.S. government-employed courtroom about how to better respect 
the Sept. 11 defendants.

Pradhan stands out because she feels even more strongly, and is willing 
to make even greater leaps, than even most critics of Gitmo. Where many 
see a country wobbling between its ideals and its security, she sees a 
system that is deliberately and aggressively racist. “This is a legal 
venue that was designed for noncitizen Muslim males, right?” She often 
ends sentences like this — as questions, as if she’s addressing an 
invisible envoy of the United States government who’s always standing by 
and who is so stunted Pradhan needs to stop and make sure he’s following 
along. “If we had white guys from, you know, France being held, I remain 
convinced they would not have been tortured, I don’t think,” she says. 
“I don’t think they would have founded an entirely different legal 
system for them. I don’t care what you think they did.”

The volume and release with which Pradhan speaks compensate for the fact 
that her client’s words, his very thoughts, are classified. “Everything 
that comes out of his mouth,” Pradhan says, “and everything that he 
writes on a piece of paper, is presumptively classified. It doesn’t 
matter if he writes down the lyrics to a song by Miley Cyrus. It’s 
classified. And I have to put it through classification review before I 
can share his exact words with anyone.” Pradhan feels she is speaking 
for a man with no voice, so she does so with little reservation. If she 
makes the prosecution uncomfortable, good. If she makes the victims’ 
family members who are watching uncomfortable, which she knows she 
sometimes does, that’s a shame, and she wishes she didn’t; then again, 
her duty is not to the victims of Sept. 11, but to one of the suspected 
perpetrators.

*The day after *the flight, Pradhan got in the van she had been assigned 
for the trip, to run some errands. The van was new, which was nice, but 
huge, which was strange, because the only other person who would occupy 
any of the 15 passenger seats was me. Driving around the base, dodging 
iguanas and passing tent cities with all the empty bench seats behind 
her, Pradhan looked like the world’s loneliest camp counselor. She made 
a detour to take me up to Camp X-Ray, which housed the first group of 
detainees in 2002. Even though it was only used for a few months, it’s 
Camp X-Ray that most people think of when they think of Gitmo: kneeling 
men in orange suits, outdoors, fenced in like zoo animals. It’s now 
rundown and overgrown. “We thought they’d be here for like a few weeks 
maybe,” she said. “You know, I don’t know what we thought we were going 
to do with them.”

Then, she left to meet with Baluchi at Camp Echo, an arrangement of 
trailers set inside a security fence garlanded by razor wire and draped 
in green sheeting, which together speak to another Gitmo paradox: much 
of the infrastructure is temporary, even though the status of the 
accused feels fixed. They meet here because Baluchi lives in Camp Seven, 
and neither of them knows where that is. It’s a structure whose very 
existence was secret until a few years ago and whose location still is. 
Neither of them knows where Baluchi goes at night; presumably, it’s 
somewhere on base. When they spend time together, it’s in the courtroom 
or at Camp Echo, in a trailer.

I was not allowed to meet Baluchi — he can’t meet anyone besides his 
lawyers — so what I know about Pradhan’s visits with her client comes 
from members of the legal team. They won’t share direct quotes from him, 
because other Gitmo lawyers have had their clearances suspended or 
revoked for sharing too much from their client. (This summer, a military 
judge amended the existing rule to say that no legal mail can be 
released to a third party. “Legal mail” is an expansive term that could 
include notes or even items committed to memory during lawyer-client 
meetings, so the following window into their work together would not be 
possible had Pradhan not shared it before the order was issued.)

On that day, Pradhan had important coming motions to discuss with 
Baluchi about N.S.A. surveillance, about trying to access Red Cross 
records that might shed light on his torture and one about improving the 
conditions of his detention. But when she arrived, she found Baluchi not 
quite ready for legal matters yet. He was thinking about mouth-feel.

At Guantánamo Bay, he is a host, and it’s important to him that Pradhan 
feels welcome. So he prepares her a meal. It’s a challenge, because his 
ingredients are limited and his guest is a particular eater; a 
vegetarian who likes spice and kale. Sometimes the prison meal is 
spaghetti, and Baluchi carefully dissects it, salvaging the part that 
hasn’t touched the meat sauce, and combining it later with oil and 
spices if the team has brought any past the guards. Then, for 
mouth-feel, he’ll dig around for something crunchy. He has learned to 
pay attention to vegetables, because even though military-issue salads 
aren’t necessarily the freshest, raw onions help with texture. (The 
place has a way of bringing out creativity; Pradhan has learned some 
Gitmo culinary tricks as well. She found that the hot cakes from the 
McDonald’s on base are the best cheat foods to bring to hunger strikers, 
whose atrophied jaw muscles and throats sore from feeding tubes can 
handle only soft foods.) Baluchi prefers prayer rugs to chairs, so when 
he’s done assembling the meal and they sit down to eat together, they 
sit on the floor.

Pradhan was preparing a long-shot motion in an effort to persuade the 
judge to remove Baluchi’s designation as a “high-value detainee,” a term 
by which the Department of Defense means a suspected terrorist put 
through the C.I.A.’s rendition program. The “high value” designation is 
cited as a reason for a variety of circumscribed freedoms, from 
detention in a secret location that lawyers can’t visit, to minute and 
seemingly meaningless restrictions like the prohibition on 
noncommercially sealed food items. Baluchi said he thought the language 
that she used was too dry. It needed color, so he asked her to include 
some humanizing detail. What if she reminded the court that when his 
father died in 2012, months passed before he could speak to his family?

Everything about Guantánamo Bay is made opaque, kept obscure to 
outsiders through the restriction of access, the distance from news 
bureaus and the tangle of logistics it takes to get there and back. It’s 
hard to know how it all works. Baluchi understands this. But he figured 
people might relate, emotionally, to being cut off from family after a 
parent dies. Pradhan added the anecdote to the motion.

Another significant part of Pradhan’s job is trying to detail Baluchi’s 
torture and abuse. She and her colleagues expect the prosecution to say 
that Baluchi gave incriminating statements free of coercion. But if he 
made a statement on a given date, a document like a medical report from 
the same date could dispute the notion that he made the statement 
freely. There’s a trove of files that would allow the team to do that 
kind of cross-referencing, but the defense doesn’t have access to it. 
The prosecution does. The defense must settle for “substitution” 
documents: files that prosecutors create themselves, with judicial 
oversight, according to their own sense of what’s relevant to the 
defense. Pradhan is certain she doesn’t know everything that happened to 
Baluchi, which is frustrating both for planning his defense and for 
trying to get him treatment.

This predicament also sets the defense up for occasional surprises, like 
when a member of the team went to see the 2012 movie “Zero Dark Thirty,” 
about the hunt for Osama bin Laden, and realized that one of the main 
characters was very obviously Baluchi. The opening segment of the film 
showed a man held at a black site in an undisclosed location, being 
tortured violently. Baluchi’s first name, Ammar, had not been changed, 
nor had his family details, where he was arrested or what his suspected 
role was in Al Qaeda. While information about Baluchi’s interrogations 
was being withheld from his own defense team, it had apparently been 
shared with the filmmakers Mark Boal and Kathryn Bigelow, who seemed to 
know more about Baluchi’s treatment than his own lawyers did.

*In the case* against Baluchi and his four co-defendants, the United 
States has leveled charges that include conspiracy, terrorism, hijacking 
and 2,976 counts of murder. The government is seeking the death penalty 
for all of them. But more than 16 years have elapsed since the attacks, 
and the actual trial is probably still a long way off. There are years 
of pretrial motions to be argued, because, though this may be the most 
significant trial of our lifetimes, it is also a legal experiment. And 
it’s a legal experiment with a few false starts already.

President George W. Bush thought the naval base at Guantánamo would be 
the best location for holding people and trying them without lawyers, 
but the Supreme Court said he couldn’t do that. So he asked Congress to 
commission military-style tribunals. It passed the Military Commissions 
Act of 2006, allowing for hearings to happen at Gitmo, which they did 
until Obama came into office vowing to close the base and try defendants 
in federal court. Preparations got underway. Then that plan faltered, 
too, this time succumbing to public outcry about suspected terrorists on 
United States soil and an ongoing concern that federal courts were 
incapable of trying suspected terrorists.

Forced to relent, Obama reverted to Bush’s fix: military tribunals at 
Guantánamo. President Trump has promised to keep the facility open. But 
the system still has to be built before it can be used, and seemingly 
fundamental issues are only now being addressed. For instance, military 
commissions are supposed to try war crimes. Are we at war with Al Qaeda 
and, if so, was that war already underway at the time of the Sept. 11 
attacks? Only in the spring of 2016, after four and a half years of 
pretrial hearings, did the military commissions hear arguments about 
whether military commissions were even the right venue. For many 
experts, it’s hard to imagine how the prosecution could ever secure a 
conviction, then a death sentence, then have it all hold up on appeal, 
given the taint of torture and everything else.

Karen Greenberg, who is the founder and director of Fordham University 
Law School’s Center on National Security and who has published books 
about Guantánamo and the terror courts, says the commissions are 
essentially doomed. “It’s hard to find an element of the 9/11 
commissions that’s not challenged by logistics,” she says. “Whether it’s 
logistics of movement and transportation or logistics of the legal 
process, every single point seems to be impeded in the military 
commissions.” And she doesn’t see what’s happening now as a genuine 
inquiry into guilt but more as a kind of dramatization. What’s really 
happening here, she says, is just “perpetual detention with the patina 
of a court process.” One of the most likely scenarios is that the 
defendants just die at Guantánamo, never having been sentenced.

To convict Baluchi in particular, and to secure a death sentence against 
him, the prosecution has to prove not just that Baluchi was involved in 
the Sept. 11 plot but that he knew he was involved. Pradhan doesn’t 
think they can.

*The prosecution’s case *against Baluchi starts in early 2000, when his 
uncle, Khalid Sheikh Muhammad, a top Qaeda official, asked him to send a 
video called “CityBird” to Pakistan. It was an instructional film about 
the cockpit of a Boeing 767, the same sort of plane that would be used 
to take down both towers of the World Trade Center. Mohammad then began 
asking his nephew to perform other odd jobs, from buying flight 
simulators to setting up bank accounts to purchasing plane tickets to 
wiring money to some of the hijackers.

Pradhan won’t say whether she believes that these transactions took 
place; she says that she hasn’t seen enough evidence to address them, 
and it would be imprudent for her to concede the factual claims against 
her client. But when asked, she returns to what she says is legally the 
more relevant matter: how much he knew. “One of the biggest questions is 
intent,” she says. “For a death-penalty trial, you have to have specific 
intent to commit these crimes. I haven’t seen anything from the 
government that works in their favor on that question. He didn’t know. 
He found out about Sept. 11 on Sept. 11. That’s enough.”

Altogether, he wired about $150,000 to people involved in the plot all 
around the world, according to the government. He was asked at an early 
hearing about his contact with Marwan al Shehhi, who flew United 
Airlines Flight 175 into the South Tower of the World Trade Center. “Did 
you wire transfer over $100,000 in separate transactions to al Shehhi? 
Do you admit to that?”

“Yes,” he answered.

“What was the purpose of that money?”

“I don’t know.”

At the time, Baluchi says, it was just friend of a friend asking for a 
favor. Gifted at languages, Baluchi was also tech-obsessed and a problem 
solver, so in addition to his job at a Dubai electronics company, he had 
a side business helping friends with logistics. Sending money for people 
wasn’t out of the ordinary, particularly when an elder in your own 
family asked you to do it, even if that elder was Khalid Sheikh 
Mohammad. As for whether Baluchi wondered about the sheer amount of 
money he was moving, his response was: Why should he have? He had 
wealthy friends from Gulf States who often had large sums of money to 
move. Once, one of his friends wanted to buy a Ferrari when he arrived 
in the United States to study, and he asked Baluchi to handle a 
transfer. “So,” Baluchi once said, “you can imagine Ferrari is $300,000. 
This is $100,000. So it’s not that big question.”

Baluchi claims that when people asked him to help move money, he had no 
reason to be suspicious. As he once put it, no one asked for his help 
sending money to “hijacker Marwan.” In his own reckoning, he’s precisely 
as responsible for Sept. 11 as everyone else who facilitated it 
unwittingly: rental-car clerks, flight instructors and United States 
financial institutions.

According to Terry McDermott, one of the authors of “The Hunt for 
K.S.M.” and the foremost civilian authority on Khalid Sheikh Mohammad, 
it is plausible that Baluchi didn’t know what exactly he was involved 
with before the attacks. His uncle was fastidious about operational 
security. Mohammad used dozens of SIM cards and aliases, practiced 
compartmentalization and used multiple vehicles when traveling to and 
from meetings. It would have been out of character to jeopardize a 
mission by letting anyone know what the plan was. And Mohammad, for what 
it’s worth, does not deny his own involvement in the attacks; he 
proclaims it. He maintains that his nephew knew nothing.

McDermott, however, believes Baluchi willingly participated, even if he 
didn’t know specifically what he was participating in. McDermott’s 
reporting holds that Baluchi was most likely initiated into the cause of 
jihad as teenager, when his cousin Ramzi Yousef, one of the terrorists 
behind the first World Trade Center bombing in 1993, was injured in a 
bomb-making accident. While recovering, Yousef came to stay in Zahedan, 
a town in the southeastern corner of Iran where Baluchi was attending 
boarding school. McDermott believes Yousef indoctrinated him during that 
time. Furthermore, McDermott believes Baluchi sought out Mohammad and 
asked to help, rather than the other way around. After all, Mohammad was 
first indicted in 1996, and though the indictment was initially sealed, 
it wasn’t as if his activities were unknown. McDermott finds it hard to 
believe that Baluchi didn’t know at least what kinds of things his uncle 
might need money for. And even if $70,000 wasn’t a lot compared to a 
Ferrari, it was a lot for someone like Mohammad, who had no apparent 
source of income.

There are other details that McDermott finds difficult to square with 
the idea of Baluchi as unwitting participant. Baluchi is smart and 
worldly; he speaks six languages. Shouldn’t he have been able to figure 
out something untoward was going on? And, McDermott points out, he used 
aliases to make some of the wire transfers and purchases. Why would he 
have done that if he didn’t think he was involved in something criminal? 
(McDermott also believes Baluchi was involved in the beheading of Daniel 
Pearl.)

The C.I.A. reported that even after Sept. 11, Baluchi was involved in 
plots against Western targets in Pakistan, including the United States 
Consulate in Karachi. And the agency says that when Mohammad was 
arrested in 2003, his plans for another spectacular operation fell from 
uncle to nephew. Baluchi is said to have pursued, among other things, a 
kind of British Sept. 11, in which Al Qaeda would hijack planes from 
Heathrow, turn them around and crash them into the airport and an office 
building in the Canary Wharf business district. Security was deemed too 
tight, however, and the plot evolved to taking planes from Eastern 
European airports and crashing them into Heathrow.

But the C.I.A. learned of these plots from Mohammad after its operatives 
began waterboarding him, which they did at least 183 times. Much of what 
he said during that period has since been proved false. Mohammad later 
retracted those statements, even as he continued to boast of his own 
involvement in Sept. 11.

*The day after *the meeting with Baluchi at Camp Echo was a hearing day. 
Security was tight. Baluchi was brought into the hearing room, a large 
space with one long table for each of the five defense teams, a chair at 
the end of each table for a defendant and a row of inward facing seats 
against a side wall for the guard force. Two uniformed men walked on 
either side of Baluchi, latex-gloved hands on his biceps, and deposited 
him in the chair next to his legal team. He wore sunglasses. The white 
light in the room is a trigger for him, worsened by a brain injury that 
a psychologist consulting for the defense says he received in C.I.A. 
custody. Pradhan says that although Baluchi didn’t see natural sunlight 
for three years when he was in the secret prisons, the C.I.A. used 
bright artificial light together with beatings, dousing, extreme cold, 
nudity and extreme noise so that for him all these things are connected.

Baluchi sat down and slipped off the basketball sneakers he was wearing; 
he would follow the proceedings in socks. There weren’t enough chairs at 
Baluchi’s table, so Pradhan knelt beside him as they waited for the 
judge. Even if Pradhan and Baluchi had been speaking above a whisper, 
the few people (including me) watching from the gallery and those 
watching via satellite feed probably wouldn’t have been able to hear 
what they were saying. All that observers — generally press, family 
members and nongovernment-organization workers — can hear is the sound 
loud enough to be picked up by microphones and piped out on a 45-second 
delay. It’s an arrangement set up as a fail-safe, in case someone in the 
room says something classified. The judge would then have the better 
part of a minute to cut the feed before observers hear something they’re 
not supposed to.

At least, that’s how everyone thought it worked, until the proceedings 
took one of their strangest turns a few years ago. One of Mohammad’s 
defense lawyers was explaining why evidence from the C.I.A. black sites 
had to be preserved, when, according to press reports, a red light in 
the courtroom lit up, and the feed died. The judge, Col. James Pohl, was 
confused. He hadn’t stopped it. But he thought he was the only one who 
could stop it. An unseen entity — most suspect the C.I.A. — had gained 
access to the feed without anyone knowing. (Asked for comment, the 
C.I.A. referred me to the Department of Defense, which said the feed was 
cut “due to a concern at the time that classified information was 
potentially being divulged.”)

"You don’t try and try and try and try again to interfere with the 
attorney-client relationship unless you’re going to get something out of 
it. Our theory of the case has always been that the prosecution is 
working closely with the F.B.I. and the C.I.A."

Other cases of suspected monitoring by unseen entities followed. A few 
months after the courtroom audiovisual incident, one of Pradhan’s 
colleagues, Cheryl Bormann, a lawyer for Walid bin Attash, Osama bin 
Laden’s former bodyguard and a suspected Sept. 11 planner, was meeting 
with her client when she noticed a small electronic module on the 
ceiling. The guard said it was a smoke detector. Bormann was curious, so 
she did an online search for the brand name she’d seen on the side of 
the unit, and it turned out to be an audio-surveillance device. Somebody 
was listening in on privileged attorney-client meetings. Or at least, 
someone had the ability to. But in yet another pretrial hearing, the 
chief of the guard force testified under oath that he thought it was a 
smoke detector. Which meant whoever installed the listening device did 
so without even the guards knowing. Army officers argued at the time, 
and a Department of Defense spokesman later told me, that the devices 
were holdovers from the rooms’ previous use and furthermore that the 
“capability” to monitor rooms “does not establish the fact of abuse or 
misuse of that capability.”

The defense claims even more peculiar things have happened. There was 
the F.B.I.’s trying to turn a security contractor working for the 
defense into an informant. And there was one of Baluchi’s co-defendants 
claiming to have recognized his appointed interpreter as a man present 
during his torture at one of the C.I.A. black sites. Pradhan now 
operates under the assumption that the F.B.I. and the C.I.A. are spying 
on the defense. She doesn’t think they do it to gather more intelligence 
but instead to give the prosecution a leg up and to control the 
dissemination of information about torture. She doesn’t have any 
evidence; it’s just the only explanation she finds plausible. “You don’t 
try and try and try and try again to interfere with the attorney-client 
relationship unless you’re going to get something out of it,” she says. 
“Our theory of the case has always been that the prosecution is working 
closely with the F.B.I. and the C.I.A.” The F.B.I. declined to comment, 
and the C.I.A. referred me to the prosecution. When asked, the 
prosecution acknowledged that it works closely with intelligence and law 
enforcement, but vehemently denied that its cooperation involves spying 
on the defense. Pradhan believes it anyway.

When the hearing finally began and Brig. Gen. Mark Martins, the lead 
prosecutor, got up to speak, Pradhan’s body language changed. She looked 
coiled and alert. “Good morning, your honor,” he said. “Present in the 
back of the courtroom, James Fitzgerald and Brianna Hearn of the Federal 
Bureau of Investigation.” Pradhan didn’t know why the F.B.I. sat there, 
but she says they’re always there. The judge asked each legal team which 
of their members were present and then recounted recent developments.

“The issue before me right now is whether or not we can continue with 
the case for these sessions scheduled for the next eight days in the 
absence of Ms. Bormann,” Judge Pohl said.

Bormann, the same lawyer whose inquiry about the “smoke detector” 
spurred hearings about attorney-client privilege, had fallen and broken 
her wrist just before the trip. She had to have emergency surgery and 
couldn’t come to Gitmo for the hearings. Because she’s the one “learned 
counsel,” for bin Attash, meaning the one lawyer experienced in capital 
murder cases, bin Attash now lacked proper representation.

To Pradhan, it wasn’t even a question: You can’t have hearings unless 
the defendants are properly represented. Especially in death-penalty 
cases and especially because the court would be hearing actual testimony 
that day. A family member of Sept. 11 victims, a man named Lee Hanson, 
was scheduled to give his deposition. He was 84 at the time, and the 
worry was that he might not be around to testify when the real trial 
begins, so he was afforded the opportunity in the name of preserving 
evidence. But the way Pradhan saw it, the court would be hearing 
testimony against an unrepresented defendant. She found the idea absurd; 
she found it absurd that they were even considering it.

Pohl explained why they had to come down to Gitmo at all, rather than 
calling it off before everyone got on the plane. “The only way to fairly 
litigate that issue would be to have a hearing, as we’re going to do 
right now, and hear from both sides and then go from there.” This, too, 
Pradhan found absurd: Pohl was asking for a hearing about how to proceed 
with pretrial-hearings, which, in turn, were about how to proceed with a 
trial. In other words, he was asking to litigate how to litigate about 
how to litigate.

One of Bormann’s colleagues, Edwin Perry, got up to explain why they 
ought not proceed without his boss, who was genuinely injured and could 
not be there. He argued that it would be, among other things, a 
violation of their client’s Sixth Amendment right to counsel if they 
were to proceed. The judge replied, to stifled laughter: “You’re telling 
me you can’t prepare these legal motions without her being present? You 
may be selling yourself short there, Mr. Perry. I’m just saying.”

Pradhan didn’t laugh. After a few hours of arguments, the judge made his 
decision: The deposition would go forward. The first testimony in the 
Sept. 11 trial would be given while one of the accused lacked a 
capital-qualified lawyer. Pradhan was stunned.

*From the outside *looking in, it’s not obvious why Pradhan even 
bothers. The amount of time and work it’s going to take before a jury 
will decide on guilt or innocence, let alone a sentence, if any of that 
even ever happens, is oppressive. “So damn far away,” she said, when I 
asked when she thought the actual trial might start. And when I asked if 
she was confident it would happen at all, she said, “I honestly have no 
idea.”

“The invention of a brand new legal system,” she says, “means we’ve 
spent years kicking the tires of the military commissions before we can 
drive it. We’ve barely started getting useful discovery; it’ll be 
another couple years at least before we can think about driving.”

She can argue why she believes Baluchi can beat the charges if it ever 
gets to that, but it’s still hard to see him ever walking free. It looks 
more and more like the prosecution and defense are all working 
impossibly long hours for men whose fates are, if forestalled, still 
inevitable. It’s hard to see how it isn’t, as Karen Greenberg said, just 
“perpetual detention.” In a sense, the lawyers and their clients are all 
trapped together, invested in a process that may not end until the 
accused find another way to die.

But what became clear over the time I spent with Pradhan is that there’s 
another reason she spends so much energy on him, and it goes beyond her 
belief that a favorable outcome is possible if they work hard enough. 
Pradhan believes the trial provides a kind of therapy. Not the kind of 
therapy a trial is ostensibly supposed to bring — the closure, the 
healing for victims — but instead healing for the accused.

Early on in our conversations, Pradhan began to articulate an idea I 
found surprising. “At this point,” she said, “Ammar has been in custody 
for 13 years. He has very real struggles stemming from his torture.” She 
has watched him participate in the case, and she has begun to see his 
work as an antidote for the learned helplessness taught to him by the 
C.I.A. It was a way to move toward something, to quiet the part of his 
mind where the heavy-metal music hasn’t stopped, the part that nudges 
him awake every 45 minutes, every night to prepare for more beatings. 
Working with Pradhan on his trial for mass murder is what she thinks 
keeps him going.

It’s why when she sits on the floor of the trailer at Camp Echo to 
prepare for a hearing, no matter how much the team has to get through, 
no matter how important tomorrow’s motions are, it’s the suspected 
terrorist who sets the agenda. And it’s why when she kneels beside him 
in the courtroom, even though she thinks her job — and maybe her career, 
and maybe her purpose in life — is to be a loud and unreserved voice for 
the voiceless, she tries, in those moments, to listen as much as she speaks.

But when she does, she finds that there’s always so much he wants to 
know about her before he’s ready to talk about his defense. When they 
meet at Camp Echo, Baluchi, without fail, asks about her family. Mostly, 
he wants to know about her daughter; Pradhan once took her there, to 
Gitmo, “to see where Mama works.” And though they couldn’t see Baluchi 
together, they went shopping for him together. That started a tradition: 
Pradhan brings him berries from the Navy Exchange, saying she’s 
delivering them on orders from the 5-year-old. Now whenever Pradhan 
walks in, Baluchi wants to know how the girl is doing, how her French is 
coming along. And it’s only afterward — after Pradhan tells Baluchi the 
latest about this friend he’ll never meet, sitting on a floor cluttered 
with McDonald’s cups and foam clamshells — that they finally get down to 
the endless task of keeping him alive.

*Correction: December 19, 2017 *

An earlier version of this article used an outdated figure from 2008 for 
the number of counts of murder faced by each of the Sept. 11 defendants. 
It is 2,976, not 2,973.

*Correction: December 27, 2017 *

An earlier version of this article misidentified the jet that hit the 
South Tower of the World Trade Center on Sept. 11. It was a United 
Airlines flight, not American.

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 https://freedomarchives.org/
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/ppnews_freedomarchives.org/attachments/20171228/8f9bd1fb/attachment.html>


More information about the PPnews mailing list