United States v. Khalid Sheikh Mohammed

United States v. Khalid Sheikh Mohammed, et al. is the upcoming trial of five alleged Al-Qaeda members for aiding the September 11, 2001 attacks. Charges were announced by Brigadier General Thomas W. Hartmann on February 11, 2008 at a press conference at the Pentagon.^[1] The men charged are Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi, and Mustafa Ahmad al Hawsawi.^[2]

Charges

In an 88-page complaint, the group was charged under the military commission system, as established under the Military Commissions Act of 2006, with attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, terrorism, and providing material support for terrorism.^[3] If convicted, the five will face the death penalty.

The charges include 2,973 individual counts of murder — one for each person killed in the 9/11 attacks.^[4]

The U.S. government is seeking the death penalty, which would require the unanimous agreement of the commission judges.

Human rights groups, including Amnesty International, Human Rights Watch and the Center for Constitutional Rights, and U.S. military defense lawyers have criticised the military commissions for lacking necessary rights for a fair trial. Critics generally argue for a trial either in a federal district court as a common criminal suspect, or by court-martial as a prisoner under the Geneva Conventions which prohibit civilian trials for prisoners of war.^[1] Mohammed could face the death penalty under any of these systems.

The Pentagon insisted that Mohammed and the other defendant would receive a fair trial, with rights "virtually identical" to U.S. military service personnel. However, there are some differences between U.S. courts-martial and military commissions.

The U.S. Department of Defense has built a $12 million "Expeditionary Legal Complex" in Guantánamo with a snoop-proof courtroom capable of trying six alleged co-conspirators before one judge and jury. Media and other observers are sequestered in a soundproofed room behind thick glass, at the rear. The judge at the front and a court security officer have mute buttons to silence the feed to the observers' booth—if they suspect someone in court could spill classified information.^[5]

The trial in a military commission

Courtroom sketch of Khalid Sheikh Mohammed published in 2008.^[6]

The trial, presided over by judge Ralph Kohlmann, began on June 5, 2008, with the arraignment. About thirty-five journalists watched on closed-circuit TV in a press room inside a converted hangar, while two dozen others watched through a window from a room adjacent to the courtroom.

Mohammed insisted he would not be represented by any attorneys. The other detainees quickly followed suit and said they too wanted to represent themselves. One of the civilian attorneys Mohammed spurned, David Nevin, later told the Associated Press that he would attempt to meet with Mohammed to "hear him out and see if we can give him information that is helpful."^[7][8]

Mohammed was careful not to interrupt Kohlmann. He lost his composure only after the Marine colonel ordered several defense attorneys to keep quiet: Mohammed said in broken English, his voice rising "It's an inquisition. It's not a trial. After torturing they transfer us to inquisition-land in Guantanamo."^[8]

He explained he believes only in religious Sharia law and railed against U.S. President George W. Bush for waging a "crusade war." When judge warned Mohammed that he faces execution if convicted of organizing the attacks on America, Mohammed said he welcomes the death penalty. "Yes, this is what I wish, to be a martyr for a long time," Mohammed declared. "I will, God willing, have this, by you."^[8]

A sound feed to journalists from the courtroom was turned off twice.

The sound was also turned off when another defendant discussed early days of his imprisonment. Judge Ralph Kohlmann said that in both cases sound was turned off because classified information was discussed.^[8]

On September 23, 2008, in the voir dire process, Mohammed questioned the judge on his potential bias at 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 worshipped at "various Lutheran churches and Episcopal churches."

Mohammed then 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."^[9]

On October 12, 2008, Kohlmann ruled that Khalid Sheikh Mohammed, and his four co-charged, should be provided with laptops, so they can work on their defenses.^[10]

Kohlmann unexpectedly replaced

Kohlmann was scheduled to retire in 2009. In November 2008, he was unexpectedly replaced by Stephen Henley.

Possible guilty plea

On December 8, 2008, Khalid Sheikh Mohammed and his four co-defendants told the judge that they wished to confess and plead guilty to all charges. The plea will be delayed until mental competency hearings for Mustafa Ahmad al-Hawsawi and Ramzi bin al-Shibh can be held; Mohammed said, "We want everyone to plead together."^[11][12] Spencer Ackerman, writing in the Washington Independent, reported that Presiding Officer Stephen Henley had to consider whether he was authorized to accept guilty pleas.

Transfer of the case to a civilian court

In July 2009 US Attorney General Eric Holder assigned eight experienced criminal prosecutors to build the best criminal case they could against Khalid Sheikh Mohammed and his co-conspirators. His prosecutors, Holder said, had “constructed a case that uses materials and evidence that does not derive from the techniques that were controversial,” which would “maximize our chances for success.” It was a driving concern to Holder that the case not rest on torture. “It’s a statement about what this Administration is about,” he said. “It’s a statement about this Attorney General. We are not going to use the products of interrogation techniques that this President has banned.”^[13]

On 13 November 2009 Eric Holder announced that Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi will all be transferred to the U.S. District Court for the Southern District of New York for trial. He also expressed confidence that an impartial jury would be found "to ensure a fair trial in New York."^[14][15]

A rally near the federal court building in Foley Square, in lower Manhattan, was held on 5 December 2010 at which the decision to transfer the case to a civilian court was severely criticized. It was organized, in part, by Debra Burlingame, the sister of the pilot Charles Burlingame, who was killed when Al Qaeda hijackers crashed the plane he had been flying into the Pentagon. Burlingame is one of the three founders of Keep America Safe, a new political-advocacy group. Andrew McCarthy, the former Chief Assistant U.S. Attorney who led the prosecution of the 1993 World Trade Center attack, spoke at this rally declaring that Eric Holder didn’t “understand what rule of law has always been in wartime.” He said, “It’s military commissions. It’s not to wrap our enemies in our Bill of Rights.”

In a letter to president Barack Obama, Dianne Feinstein, the chair of the Senate Intelligence Committee, suggested that holding a trial in New York was dangerous. “New York City has been a high-priority target since at least the first World Trade Center bombing,” she wrote. “The trial of the most significant terrorist in custody would add to the threat.”^[13]

On 21 January 2010 all charges have been withdrawn in the military commissions against the five suspects in the Sept. 11, 2001 terror attacks being held at Guantanamo Bay. The charges were dropped "without prejudice" - a procedural move that allows federal officials to transfer the men to trial in a civilian court and also leaves the door open, if necessary, to bring charges again in military commissions.^[16][17]

In February 2010 White House spokesman Robert Gibbs on CNN said that he expects Mohammed to be found guilty and executed. "Khalid Sheikh Mohammed is going to meet justice and he's going to meet his maker. He will be brought to justice and he's likely to be executed for the heinous crimes he committed." ^[18] The White House spokesperson's statement has been criticized as violating the principle of the presumption of innocence and has been characterized as egregious by an attorney of Guantanamo Bay detainees.^[18]

In February 2010 Fox News reported that the legal counsel of Khalid Sheikh Mohammed, and the legal counsel of several other captives, was halted without warning.^[19] The attorneys had made the trip to Guantanamo in the usual manner—a trip that requires advising authorities of the purpose of their trip. However, upon their arrival in Guantanamo, they were informed they were no longer allowed to see their clients. They were told that letters to their clients, telling them that they had travelled to Cuba, to see them, could not be delivered, as they were no longer authorized to write to their clients. Camp authorities told them that since the charges against their clients had been dropped, while the Department of Justice figured out where to charge them, they no longer needed legal counsel. Camp authorities told them that, henceforward, all access to the captives had to be approved by Jay Johnson, the Department of Defense's General Counsel. Fox reported that during earlier periods when the charges had been dropped the captives had still been allowed to see their attorneys. Fox claimed that questions they asked camp authorities lead to the captives' access to their attorneys being restored.

Transfer of the case back to a military commission

On 7 January 2011 US President Barack Obama signed National Defense Authorization Act which explicitly prohibits the use of US Defense Department funds to transfer detainees from Guantanamo Bay to the United States or other countries. It also bars Pentagon funds from being used to build facilities in the United States to house detainees, as the president originally suggested. The move essentially barred the administration from trying detainees in civilian courts. The president objected to the provision in the bill before signing it, calling it "a dangerous and unprecedented challenge to critical executive branch authority" but also said his team would work with the US Congress to "seek repeal of these restrictions."^[20]

On 4 April 2011 Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other 9/11 terror suspects will face a military trial at the Guantanamo Bay detention facility. In announcing his decision, Holder blasted Congress for imposing restrictions on the Justice Department's ability to bring the men to New York for civilian trials. "After thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court. I stand by that decision today," Holder said. "As the president has said, those unwise and unwarranted restrictions (imposed by Congress) undermine our counterterrorism efforts and could harm our national security. Decisions about who, where and how to prosecute have always been - and must remain - the responsibility of the executive branch." Holder insisted, "We were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators - one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor." He added, "Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over 200 years." Holder had promised to seek the death penalty for each of the five men and on 4 April he warned that it is an "open question" if such a penalty can be imposed by a military commission if the defendants plead guilty.^[21]

On 5 May 2012 the trial started. A small number of 9/11 victims' relatives were attending the hearing. Proceedings were delayed as one of the defendants, Waleed bin Attash, appeared in court while restrained in his chair. The restraints were later removed after defence counsel had given assurances that he would "behave". Khalid Sheikh Mohammed refused to answer the judge's questions. All the defendants refused to wear the earphones that provide translation into Arabic. Then an Arabic translator present in court ensured that the accused could follow proceedings.^[22]

The trial is conducted in a specially-built courtroom at Guantanamo. Witnesses may see the proceedings through soundproof glass and hear an audio feed that is time-delayed 40 seconds. When classified material is mentioned in the court, the Court can press a censorship button to cut the audio feed to the observers and "illuminate a red light on the judge's bench."^[23] However, "it became entirely unclear who is in charge of pressing that button and by extension, who or what entity is really running this trial or monitoring the proceedings externally."

On Jan. 28 2013, during a pretrial hearing, "the sound system in the courtroom was suddenly cut, to the surprise of even the judge",^[24] as if the "censorship button" was pressed, audio feed was cut and the red light was illuminated. When the audio feed resumed, trial Judge Col. James L. Pohl said, "Note for the record that the 40-second delay was initiated, not by me. I’m curious as to why. If some external body is turning the commission off under their own view what ought to be with no reason or explanation, then we are going to have a little meeting about who turns that light on or off." The Miami Herald reported that "The judge [...] was clearly furious."^[25]

All four accused refused to enter a plea and Khalid Sheikh Mohammed refused to answer the judge's questions, which his lawyer said he was doing in protest at his alleged torture, and because he believed the tribunal was unfair.^[26]

In October, 2014, Mr. Mohammed and four codefendants petitioned the Commission to ban female guards from touching them. Attorneys for Mr. Mohammad and his codefendants argued that their Muslim faith forbids any contact between them and woman other than their wives and immediate female relatives; therefore, physical contact with female guards limits the accused free exercise of religion and causes undue physical and mental harm. The Defense argued the use of female guards is in violation of statutory and constitutional protections under domestic law, as well as additional protections under international humanitarian law. Request for relief was explicitly sought under the Religious Freedom Restoration Act of 1993, which states that “the Government may not "substantially burden" an individual's free exercise of religion except when the burden is in furtherance of a "compelling governmental interest" and is the "least restrictive means" of pursuing the compelling interest.^[27]

On January 07, 2015 presiding Judge Col. James L. Pohl granted a temporary order, “limiting the use of female guards to physically touch,” Mr. Mohammad and his codefendants, “during movements to and from attorney-client meetings and Commission hearings, absent exigent circumstances, until such time the Commission makes a final ruling.” ^[28]

July 8, 2016 Judge Pohl rescinded the temporary order, citing that under the Religious Freedom Restoration Act, the United States government has legitimate interests in “gender-neutral staffing to promote detention facility security, full integration of women into the Armed Forces, and prevention of gender discrimination.”^[29]

On August 10, 2012 the government filed a pleading describing an ex parte motion seeking permission of the military commission to destroy a military black site where the accused were imprisoned.^[30]In response, the defense filed dozens of discovery requests and motions to compel. August 12, 2013 the military commission ruled that information related to the black site would be admissible as evidence in court, and protected under the law as such.^[31]

In June 2014, the military commission issued an ex parte order authorizing the substitution of documented evidence provided by the government, in lieu of preserving the black site for further investigation. The military commission also required that the defense team be notified of the impending destruction of evidence. However, the black site was destroyed in 2014, and the defense team was not notified until February 2016. In response, the prosecution stated this err was “simple miscommunication, resulting in inaction,” between the military commission and government, each believing the task of notifying the defense team fell to one another.^[32]

On May 10, 2016 defense attorneys for Mr. Mohammad, filed a motion to recuse the military judge and current prosecution team, in response to the ex parte order leading to the “secret destruction of evidence with important guilt phase and mitigation value, despite a public order not to.”^[33] August 19, 2016 defense attorneys submitted a request “seeking all documents and information regarding the authorization for and destruction of the black site” including all actions taken by the government concerning the issue, communications between all parties involved, and documentation regarding any efforts taken by the government to notify the defense team about destruction of the black site. The motion was denied.^[34]

On September 28, 2016 the defense team filed a subject motion to compel discovery, or to dismiss all charges. On January 17, 2017 Judge Pohl granted this motion in part, the government is to provide the defense team with specified information from a limited number of classified documents pertaining to the decommission of the black site. All other requests for compelling discovery were denied, as was the request for dismissal of charges.^[35]

October 2012 pre-trial hearing

On October 17, 2012, Mohammed spoke briefly.

"You have to keep in mind that the government is using the definition of national security as it chooses. Everyone uses this expression as he chooses. When the government feels sad for the killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government who is represented by General Martins and others who have killed thousands of people. Millions. This definition is a resilient definition. Every dictator can put on this definition as the shoes that he uses to step on every person in this world, every law and every constitution. Many can kill people under the name of national security, and to torture people under the name of national security, and detain their children under the name of national security. I don't want to be long but I can say that the president can take someone and throw him in the sea in the name of national security. And so well he can also legislate the killings, assassinations, under the name of national security, for American citizens. My only advice to you that you do not get affected by the crocodile tears. Because your blood is not made of gold and ours made of water. We are all human beings. Thank you."^[36]

In response, Judge James Pohl seemed apologetic for allowing the speech:

"This is a one-time occurrence," he told the defense attorneys seated in the courtroom before him. "If the accused wish to represent themselves, that's one issue. But no matter how heartfelt, I'm not going to entertain personal comments from the accused about how things are going. He has a right to have that opinion, he does not have the right to voice that opinion, or any accused, to give his personal observations and comments."^[37]

Resignation of Major Jason Wright

In 2011, Jason Wright was appointed to serve as Mohammed's military counsel.^[38][39] In April 2014 Wright went on record that he felt the United States Army was making him choose between his military career, and his responsibilities to his client. Wright described how he had spent the previous three years building a rapport with Mohammed, and that the military would undermine his right to a fair trial by reassigning him. Wright said he felt he had no choice but to resign his Army commission and continue to represent Mohammed as a civilian.

Wright had been arguing that he needed access to classified records of Mohammed's three years of interrogations in CIA custody—interrogations the CIA has acknowledged included waterboarding and other forms of torture.^[40] Wright was promoted from Captain to Major in September 2012. Army lawyers normally attend a year of graduate school, when they are promoted to Major. While most officers take that year of schooling immediately, Wright followed the procedure to apply for a deferral of his training. He received a one-year deferral, but when that expired he felt his responsibilities to Mohammed required him to resign, so he could continue to be his counsel, as a civilian.

References