CAMP JUSTICE, GUANTÁNAMO NAVAL AIR STATION, GUANTÁNAMO BAY, CUBA—A slow-motion circus rolled into courtroom 2 of the Expeditionary Legal Complex Saturday morning.
What had been planned as the straightforward arraignment of Khalid Sheikh Mohammed and four codefendants on charges of conspiring to commit the Sept. 11 attacks disintegrated into dark comedy.
Judge James Pohl scolded attorneys for refusing to follow his carefully articulated script for the proceeding; lawyers argued they were not qualified to defend their clients; translators interrupted lawyers to insist they be quiet; defendants refused to answer any questions from the judge or even acknowledge they’d been asked; one interrupted the proceedings first to pray and again to shout out his fears of being attacked by members of the prosecution team; another who started the day shackled to his chair ended it by stripping to the waist to display scars he claims were inflicted by his Guantánamo guards.
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Meanwhile, Mohammed, the man at the center of this storm, sat quietly in the front row, leafing through the Quran and sporting a bushy beard, newly dyed henna red. Mohammed frequently turned to converse with his codefendants and at times seemed bemused as the affair unfolded around him. As remarkable, he declined to speak directly to the court at all. He has been a voluble presence in previous hearings, sometimes offering long, twisting lectures on behalf of what he describes as a great revolution.
Mohammed, a 47-year-old Pakistani known as KSM within the American intelligence community, is accused of planning and overseeing the execution of the Sept. 11 attacks, in which 2,753 died. The other four men are accused of assisting him in one way or another. They are:
—Ali Abdul Aziz Ali, 34, Pakistani, KSM’s nephew
—Walid bin Attash, 35, Yemeni, a key KSM aide
—Ramzi bin al-Shibh, 40, Yemeni, KSM’s alleged go-between to the hijackers while they were in the United States
—Mustafa al-Hawsawi, 44, Saudi, an al Qaeda bookkeeper who was captured with KSM in Pakistan in 2003
Given the defendants’ refusal to cooperate on even the simplest matters, the arraignment struggled to get off the ground. The hearing began at 9 a.m. and didn’t end until 10:30 that night with the reading of the charges.
All five men deferred entering pleas, a turnaround from 2008, when they all declared their intent to plead guilty, thereby hurrying to their martyrdom. They seem content now to take their time—and every indication is they will get it.
All five men declined to answer Pohl’s questions regarding the formal appointment of their defense attorneys. Provisional attorneys for the men argued that the defendants could not make any decisions until the court heard arguments about their treatment—that is, about torture—during what is now nearly a decade in captivity.
But Pohl declined to vary from his declared procedures, denying to hear any motions prior to appointment of counsel. After more than two hours of fruitless back-and-forth, Pohl made the provisional attorneys’ appointments permanent without the assent or disagreement of the defendants.
Pohl was prickly at times, but showed remarkable restraint when KSM led the defendants in prayers for nearly half an hour in the early afternoon while Pohl, 20-some attorneys, two dozen Army guards, and about half that many relatives of Sept. 11 victims waited in astonishment. Pohl deflected almost all arguments the defense attempted during the course of the day, saying the time for that would come when they next convene, in mid-June. He indicated he would eventually allow defense lawyers to argue every issue they wanted.
Attash was carried into court shackled to a chair for unexplained reasons. His attorney, Cheryl Borman, told Pohl that Attash has been repeatedly beaten by guards at Guantánamo. Treatment of the detainees was one of several issues over which Pohl has had little or no control, a point he made repeatedly when pressed by defense attorneys. He said he would investigate with the relevant authorities.
His relative powerlessness over events beyond the courtroom illustrates one of the fundamental contradictions of the military-commission system first initiated under President George W. Bush, then suspended and finally reformed under Barack Obama. The central contradiction is the attempt to conduct trials granting nearly all rights enjoyed in U.S. courts when the defendants are prisoners in one of the most heavily controlled prisons in the world—held, usually in solitary confinement, under extreme security with almost all access to the outside world eliminated.
Their lawyers are thousands of miles away and require special flights just to get to Guantánamo. Even when there, the lawyers are unable to talk with their clients about anything the American military decides is classified. This includes all issues having to do with the prisoners’ treatment. Thus, defense lawyers can’t talk in court about the specifics of their clients’ complaints.
The courtroom itself is surrounded by high cyclone fences, braided with coiled razor wire, and watched by heavily armed guards. The roads and walkways leading to the court complex are a winding obstacle course littered with crash-resistant barriers. Passports are required for entry and exit to the court, even though access to the naval base is tightly controlled and nonmilitary personnel cannot move about without escorts.
Inside the room today, it felt as though the tide had somehow turned. Pohl seemed likely to accept a defense-favored target date for a trial—next year rather than the prosecution’s late-summer proposal. The commissions once seemed a quick if cumbersome solution to the problem of what to do with the Sept. 11 perpetrators. Today it seemed merely cumbersome.
