The five men are charged with murder in violation of the law of war, hijacking and terrorism, among other charges. All of them deferred entering a plea. The case is likely to be the most public and contested examination of the reformed military commissions that were backed by the Obama administration and approved by Congress in 2009.
The normally loquacious Mohammed refused to speak publicly throughout Saturday’s hearing, a stance that was largely adopted by all the other defendants, who tend to follow his lead. Mohammed sat at the top defense table in the spacious courtroom, and throughout the hearing he whispered messages to his comrades, and they chatted and joked with one another during a short recess.
During the hearing, Mohammed, a 47-year-old Pakistani, often kept his chin in his chest, and refused to speak to the military judge, Army Col. James Pohl, about whether he wanted to keep his military and civilian counsel or represent himself. The others followed suit.
Mohammed’s civilian attorney, David Nevin, said the reason his client was not participating was because of the “torture that was imposed on him.”
After their capture, each of the men were held at secret CIA prisons overseas before being transferred in September 2006 to Guantanamo Bay, where they are held at a small, high-security facility known as Camp 7. Mohammed was waterboarded 183 times in the first month after his capture in March 2003, according to government reports.
As the biggest terrorism case in U.S. history gets underway, proponents and critics of the system are engaged in an increasingly short-tempered war of words about justice and legitimacy.
James Connell, who represents Ali Abdul Aziz Ali, Mohammed’s nephew, said the government’s monitoring of communications between the detainees and their lawyers violates “the critical right to a meaningful attorney-client relationship necessary for an adversarial system to function.”
The government insists it is only implementing normal security procedures.
“Every detainee at Guantanamo has ample opportunity to get the help of lawyers, and there are notable examples of robust and functional attorney-client relationships being formed and of zealous, effective representation being provided,” said Brig. Gen. Mark Martins, the chief military prosecutor.
Just 25 minutes into the proceeding, the video and audio feed to the public was cut for one minute and replaced with white noise when an attorney for Walid bin Attash said something that an in-court security officer deemed to be classified. The proceedings are broadcast with a 40-second delay so classified information will not be divulged.
Human rights groups said one test of the court’s credibility will be whether the defendants will be allowed to talk publicly about how they were interrogated while in CIA custody and discuss the physical and psychological effects of their treatment. Martins said testimony will be blocked only to protect sources and methods, not to hide embarrassing or illegal acts. But human rights groups fear that all material relating to CIA interrogations will be classified.
The administration said the new system of military commissions, which bars the use of testimony elicited from torture, would offer due process and a fair trial to a select group of defendants accused of law of war violations. But defense lawyers, backed by advocacy groups such as the American Civil Liberties Union and Human Rights Watch, argue that commissions are no substitute for federal criminal trials and lack some key protections because of, for instance, a tolerance for hearsay.
Attash, a Yemeni, was initially brought into court in a restraint chair after he refused to attend, but the restraints were removed when his military attorney said he would not disrupt the proceeding.
Attash’s civilian lawyer, Cheryl Borman, who wore a full-length black hijab in court, said the men were also silent because they were “mistreated” before court by the guards at Guantanamo. She said her client and the others were not allowed to wear the clothes provided by their attorneys.
Borman also suggested that women on the prosecution team should dress appropriately because the defendants might “commit a sin” if they looked at them as they are currently dressed. Three women on the prosecution side were wearing knee-length skirts. And one wore a pair of red, white and blue sling-back heels.
Two of the defendants, Ramzi Binalshibh, a Yemeni, and Ali, a Pakistani, also stood in the middle of the proceeding and began to pray. Ali, at another point, began to read the Economist and passed it back to Mustafa al-Hawsawi, a Saudi, who also leafed through it.
Binalshibh momentarily broke the official silence with an outburst saying that leadership at Guantanamo is like Moammar Gaddafi. “The era of Gaddafi is over, but not in this camp,” he shouted at the judge. “Maybe they are going to kill us and say that we are committing suicide.”
Pohl warned him that if he continued to speak out of turn, he would be removed from the courtroom. He then settled down.
“The co-defendants are intentionally seeking to avoid due process. It will not be a successful strategy,” said Patrick White, president of Families of Flight 93, by e-mail from Shanksville, Pa. “Prosecution will continue and justice will be served.”
Pohl said he would not allow Mohammed and the others to “frustrate” the proceeding. In the their silence, he said, they had, by default, accepted their lawyers. The judge also appeared frustrated by the repeated attempts by defense counsel to discuss various issues, including their ability to communicate confidentially with their clients. Pohl said the matter could be dealt with only after the arraignment.
As is normal in military cases, the judge was questioned by defense lawyers to see if he had any biases. Pohl refused to discuss what religious beliefs, if any, he held. Asked if he had an opinion on the enhanced interrogation techniques employed by the CIA, Pohl said he had not formed an opinion, although he noted he had read a book by former FBI agent Ali Soufan, a major critic of how the CIA treated detainees.
The prosecution asked that the trial start Aug. 1. The defense asked for a delay of at least a year, and the judge seemed inclined to grant the request, saying he would decide at the next hearing in June. One of the defendants insisted that the 87-page charge sheet, which includes the names of all 2,976 victims, be read, which meant the hearing would continue into the night.
Proceedings were beamed to six military sites in the eastern United States where families of victims could watch them. The arraignment was also screened for the media and the public at Fort Meade in Maryland, and more than 50 foreign and American journalists traveled to Guantanamo for the hearing, as did a number of advocates from human rights groups. At Guantanamo, the media, public and the relatives of victims sit behind soundproof glass and listen to an audio feed.
The case against the five men has had a convoluted and politically charged journey.
The Bush administration first arraigned the defendants in June 2008, when Mohammed was seen in public for the first time after his long detention and proclaimed his desire for martyrdom. The Obama administration ended that case as part of its plan to transfer the 9/11 prosecution to New York, but that effort, like the broader attempt to close the military detention facility here, collapsed in the face of bipartisan opposition.
Attorney General Eric H. Holder Jr. returned the case to the military last year. The selection of a jury of military officers and opening arguments are probably more than a year away because of an expected deluge of pretrial litigation. And any verdict can be appealed to the federal courts.