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<a href="http://www.counterpunch.org/worthington09292008.html" eudora="autourl">
http://www.counterpunch.org/worthington09292008.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">September 29,
2008<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>"Torture is
at the Very Center of the Case" <br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">Is
Khalid Sheikh Mohammed Running the 9/11 Trials?
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>t could all have been so different. Between
September 2002 and April 2003, the five defendants in the forthcoming
<a href="http://www.counterpunch.org/worthington02122008.html">9/11
trial</a> 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
<a href="http://www.counterpunch.org/worthington02072008.html">
waterboarding</a>. And yet they could, instead, have been questioned by
skilled US interrogators for whom torture remains abhorrent, illegal and
counter-productive. <br><br>
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 <i>New Yorker</i>’s
Jane Mayer explained in an
<a href="http://www.andyworthington.co.uk/2007/08/10/jane-mayer-on-the-cias-black-sites/">
article</a> 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.” <br><br>
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.<br><br>
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.”<br><br>
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.<br><br>
</font><h1><font face="Verdana" size=2 color="#990000"><b>Day
One</b></font></h1><font face="Verdana" size=2>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.”<br><br>
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 <i>Washington Post</i> 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.<br><br>
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.”<br><br>
</font><h1><font face="Verdana" size=2 color="#990000"><b>Day
Two</b></font></h1><font face="Verdana" size=2>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
<a href="http://www.andyworthington.co.uk/2008/06/06/in-a-legal-otherworld-911-trial-defendants-cry-torture-at-guantanamo/">
arraignment</a> 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.<br><br>
In the <i>voir dire</i> process, in which, as Carol Rosenberg explained
in the <i>Miami Herald</i>, “lawyers question a judge on his potential
bias at trial,” Mohammed was allowed to grill Kohlmann about his
background. “For a while,” as the <i>Los Angeles Times</i> noted, he
“turned the tables on his captors and made the military judge justify his
competency to preside over the trial.”<br><br>
“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.'”<br><br>
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.”<br><br>
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.<br><br>
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.”<br><br>
As Mohammed continued questioning Kohlmann, in what the <i>Washington
Post</i> described as a “sometimes rambling disquisition,” he was
“frequently unsatisfied,” as Josh Meyer described it in the <i>Los
Angeles Times</i>, “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?”<br><br>
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
<i>Los Angeles Times</i> 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.” <br><br>
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.”<br><br>
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.”<br><br>
</font><h1><font face="Verdana" size=2 color="#990000"><b>Day
Three</b></font></h1><font face="Verdana" size=2>On the third and final
day of this round of pre-trial hearings, as the <i>Washington Post</i>
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.”
<br><br>
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.”<br><br>
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 <i>USA Today</i>,
and that their lawyers are prohibited from giving them other material
when they meet them.<br><br>
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.<br><br>
<b>Andy Worthington</b> is a British historian, and the author of
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (published by Pluto Press). Visit his website at:
<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
<br><br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
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