Khalid Shaikh Mohammed fingered his long, henna-dyed beard and stared down in silence on today, pointedly ignoring a military commissions judge asking in vain whether the self-described architect of the Sept. 11 attacks understood what was being said and whether he was willing to be represented by his defense lawyers.
Minutes later, Ramzi bin al Shibh, another of the five detainees arraigned on Saturday as accused conspirators in the attacks, stood, knelt and started praying. Later, he shouted at the judge that he should address their complaints about prison conditions, because “Maybe you are not going to see me again. Maybe they are going to kill us and say that we have committed suicide.”
One defendant, Walid Bin Attash, was wheeled into the courtroom in a restraint chair for reasons that were not disclosed.
Amid disruptions both passive and aggressive, the government’s attempt to restart its efforts to prosecute the five defendants in the long-delayed Sept. 11 case got off to a slow and rocky start in a trial that could ultimately result in their execution.
After hours of jostling over procedural issues, all five defendants deferred entering a plea. The judge set a hearing date for motions in mid-June; the trial is not likely to start for at least a year.
The arraignment hearing had been delayed by the Obama administration’s failed efforts to transfer the case to a federal court in Lower Manhattan, a short distance from the World Trade Center site. New York officials, including Mayor Michael R. Bloomberg, demanded that the trial be moved elsewhere.
As defense lawyers repeatedly tried to change the subject to security restrictions that they say have hampered their ability to do their jobs, the judge, Army Col. James L. Pohl, struggled to stick to a military commissions script that had been rewritten the day before – and so was not yet translated into Arabic.
The judge, however, was determined to keep the case on track. When a lawyer for Mr. Mohammed, David Nevin, explained that his client had decided not to respond to the judge’s questions about his assigned defense lawyers in order to protest what he saw as an unfair process, Colonel Pohl replied that he would assume that he had no objections to being represented by them.
“He has that choice,” Colonel Pohl said of Mr. Mohammed’s silence. “But he does not have a choice that would frustrate this commission going forward.”
The arraignment was the first time since 2008 that the five high-profile Qaeda detainees had been seen in public. They wore loose, light-colored garb; their lawyers complained that they had brought other clothes to wear, but that prison officials refused to let them wear it.
Four walked into the courtroom without shackles but surrounded by three large guards who stood between them when the court was not in session. With Mr. Bin Attash initially restrained, guards put glasses on his face and attached his prosthetic leg.
Colonel Pohl said he would have the restraints taken off if Mr. Bin Attash would pledge not to disrupt the court, but Mr. Bin Attash refused to answer him. Eventually, the restraints were removed after the judge accepted a promise relayed through Mr. Bin Attash’s lawyer.
While passive when the judge tried to talk to them, the detainees occasionally whispered to one another. During brief recesses, they talked freely to their defense lawyers, and while guards came and stood between them, they craned their necks and talked to each other as well, appearing relaxed.
The defense team for each detainee brought into court a bin containing papers, books and other materials for them. Mr. Mohammed, wearing a black skullcap, took a white cloth from his and fashioned it into a sort of turban. One detainee, Ali Abd al Aziz Ali, had a copy of the Economist magazine, which he appeared to be reading and later handed to a detainee sitting behind him, Mustafa al Hawsawi, who leafed through it.
The detainees refused, however, to wear headphones so they could hear a simultaneous Arabic translation. To make sure they knew what was being asked, the judge directed translators to repeat each phrase in Arabic over the courtroom loudspeaker, slowing the process and sometimes causing a confusing jumble.
The arraignment was the latest chapter for the detainees, who were captured and held for years in secret overseas prisons by the Central Intelligence Agency and subjected to harsh interrogation techniques. In 2008, they were charged before a tribunal and seen for the first time; Mr. Mohammed’s beard then was gray, and his behavior during pretrial motions was marked by frequent outbursts, not silence.
The high-security courtroom at this naval base was sealed; anything the detainees say is considered presumptively classified, and at one point censors cut off an audio feed when a defense lawyer said his client had been tortured, but later comments about torture were not. The sound also cut out at first when Mr. Bin Al Shibh began shouting – but was turned back on midway through.
Among the observers watching the proceeding behind soundproof glass were several family members of the nearly 3,000 people killed in the Sept. 11 attacks, separated from reporters and other observers by a blue curtain. (A closed-circuit feed was also broadcast to several locations around the United States.)
Several family members could be heard muttering when the lawyer for Mr. Bin Attash, Cheryl Borman – who wore traditional black Muslim garb, covering everything but her face – asked women on the prosecution team to consider dressing more modestly so that the defendants would not have to avoid looking at them “for fear of committing a sin under their faith.” The women were wearing military or civilian jackets and skirts.
Ms. Borman later sought a court order preventing prison guards from forcibly extracting detainees from cells if they did not want to come to the next hearing, saying Mr. Bin Attash had “scars on his arms”; as she spoke, he took off his shirts, but put them back on after the judge admonished him. Mr. Nevin also complained that Mr. Mohammed had been strip-searched that morning – which, along with not being allowed to wear the clothes their lawyers had brought for them, and not having a translation of the just-rewritten hearing script – had “inflamed the situation.”
Colonel Pohl said several such concerns were valid but he would take them up at the next hearing.
Family members also whispered angrily about the disruptions. Against the backdrop of scrutiny over whether the military commissions system was a fair venue, Colonel Pohl appeared to be giving broader leeway to the defendants and the defense lawyers than many federal judges would tolerate.
Throughout the hearing, for example, defense lawyers for the detainees repeatedly raised complaints about restrictions on their ability to communicate, including problems with translators and a prison policy of looking through mail about the case. Judge Pohl told them again and again not to raise an issue he had already said would be addressed later.
And when Mr. Bin Al Shibh stood and began praying, Colonel Pohl did not order guards to intervene. Later, when all five detainees returned from an hour break and then started praying in the courtroom, delaying the hearing by 20 minutes, he expressed only mild frustration.
“I fully respect the accused’s request for prayer,” he said. “It’s a right for them to have it. But a right can still be abused, if you understand me.”
Donald Guter, a retired rear admiral who was formerly the top Judge Advocate General in the navy, attended the arraignment at the navy base on behalf of Human Rights First. A critic of military commissions, he praised Colonel Pohl’s temperament – suggesting that the judge’s patience on procedural issues was likely aimed at “carrying over into a perception of fairness on the substantive issues.”
{NY Times/Matzav.com Newscenter}
Why isn’t he just killed???