Khalid Sheik Mohammed and four co-defendants refused to speak during the 10-hour hearing Saturday, which included a reading of the capital charges against them, including murder in violation of the law of war, hijacking and terrorism.
The defendants variously prayed demonstratively in court, stripped off a shirt to show the marks of alleged ill treatment, read magazines, shouted at the judge and whispered constantly with each other.
“They are complaining, and our families can’t complain,” said Eddie Bracken, a New Yorker who lost his sister in the attacks on the World Trade Center and came to Guantanamo Bay for the arraignment. “But it’s our justice and they have rights. . . . It’s hurtful because they have no remorse. I don’t think they have any souls.”
Brig. Gen. Mark Martins, the chief military prosecutor,
said that disruptive behavior is not new to courts but that judges tend to be “careful about employing the ultimate sanction of expulsion, choosing instead to build a patient and methodical record and moving the case forward while preparing the ground for eventual expulsion.”
The prosecution and the defense continued to spar over the issue of torture and how much the subject would be aired at Guantanamo Bay. All five defendants were held in secret overseas prisons by the CIA before they were transferred to Guantanamo in September 2006, and Mohammed was waterboarded 183 times in the first month after his capture in March 2003.
“The government wants to kill Mr. Mohammed. They want to extinguish the last eyewitness to his torture so he can never speak again,” said David Nevin, the civilian attorney for Mohammed, arguing that rules for classified information prevent him from even talking to Mohammed about his treatment. “The system is a rigged game.”
Martins said that illegal and embarrassing acts would not be covered up and that only clearly defined “sources and methods” would be protected, as they are in federal court. He said that Nevin and other attorneys can talk to their clients about their interrogations but that they cannot turn over certain, defined pieces of information to the detainees.
He also said a legacy of torture does not undermine the case.
“The remedy for torture or cruel treatment, the things that will make you ashamed that were done, that are deplorable and disappointing, the remedy is not to just dismiss all charges. It’s harder than that,” Martins said. “Everything — everything — is polluted and tainted? That means everyone goes free, everyone is free of accountability because someone else who may have been acting independently or out of control did something wrong. That’s not justice. It’s harder than that.”