U.S.
Janet Hamlin / AP
Fourteen years after the 9/11 attacks that killed almost 3,000 people, the five accused of the war crimes — including alleged mastermind Khalid Sheik Mohammed — have yet to enter pleas.
The pretrial hearings for Mohammed and four others — Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al-Hawsawi — restarted last week after an 18-month delay. But the trials might not begin until 2020, and some say they may begin even later.
It has been a long, drawn-out process, and proceedings quickly hit yet another snag, as one client asked about the possibility of representing himself and prompted the detailing of a long list of complaints about the process the U.S. is using to try those accused of plotting the attacks.
“I would like to know what are the procedures for self-representation?” bin Attash asked. He said he does not trust the commission or his lawyers, including Cheryl Bormann.
She then cited some of the reasons her client lacked confidence in his defense and the court. The list of grievances was long.
During the trial, there was a set of microphones at the defense tables in the courtroom, feeding audio to a government agency, assumed to be the CIA.
Bin Attash said he does not know if there is an FBI agent on his defense team, which was the case with bin al-Shibh, or if there is a CIA operative on his team. “Because in this bizarre setting, that actually has occurred,” Bormann said. Bin al-Shibh previously identified a courtroom interpreter as someone he encountered while at a CIA black site.
Also, confidential legal materials have been seized from the defendants more than once. “We told him that his attorney-client privileged materials would be sacred, they would never be seized and read, that we lied to him about that,” Bormann elaborated. “No motions to protect his materials from being seized have been granted.”
Other oddities include the discovery of obscured microphones in rooms used by defense lawyers and the fact that thousands of defense counsel emails were given to the prosecution.
Now the bid for self-representation has triggered even more issues.
Army Col. James Pohl, the presiding judge, has to decide two things: how self-representation would work and if the accused waived his right to counsel knowingly and voluntarily, making an informed choice to represent himself.
But essentially nothing Bin Attash does is voluntary, given the nature of his imprisonment at Guantánamo Bay in Cuba, where he is held incommunicado in Camp 7, a unit for high-value detainees. That level of secrecy causes all sorts of legal problems. “I can't possibly advise Mr. bin Attash of his rights because I frankly don't know what they are,” Bormann said.
The military court is one in which the government has decided the “United States Constitution doesn’t apply” she added. Therefore, the Sixth Amendment analysis that would normally occur in a self-representation situation “may or may not apply.”
That amendment deals with rights to make criminal prosecutions fairer and more legitimate. For example, in Guantánamo the accused may not see the classified evidence against him, let alone file motions, use a law library or talk to witnesses.
“So many questions arise when you try to invent justice as you go along,” wrote Dror Ladin, an ACLU staff attorney who attended last week’s hearings, in a post on the organization’s website.
He added that the biggest obstacle is government secrecy — a problem that is not confined to the accused. “Even security-cleared defense counsel at Guantánamo are sometimes kept in the dark about relevant evidence,” he wrote.
Judges too are not immune from that problem. Last week an attorney for Baluchi, Jay Connell, disclosed a secret Pentagon program, the Alternative Compensatory Control Measure, which the judge appeared clueless about, as reported first by The Miami Herald. The document revealed “the existence of the program as a mysterious, complicating factor in self-representation,” the newspaper reported.
Pohl said, “I could be wrong, but I believe, talking to the court security officer, I have not been briefed on it yet.”
Connell told Al Jazeera via email, “The levels of classification in this case are like Russian nesting dolls, with compartment within compartment. And the actual defendants can't see any of the classified information. There is no way to have a fair trial while hiding the evidence from those with most at stake.”
The Pentagon could not comment on the program beyond what was discussed in the court session, a Pentagon spokesman told Al Jazeera via email.
Separately, Connell is still waiting to hear if the prosecution must produce information about where his client was held. Also, of the more than 6 million pages of CIA documents about torture, the defense has seen fewer than 300.
And then there is the torture. “The defendants … face the unique challenge of representing themselves when they have been tortured by the government that seeks to kill them,” as Ladin bluntly put it, writing from Guantánamo.
He said that Hawsawi has to sit on a special pillow at the hearings. He was subjected to “rectal exams” conducted with “excessive force” and suffered during his time with the CIA “an anal fissure and symptomatic rectal prolapse.”
The defendants have said that their torture is continuing and the conditions at Camp 7 are “aggravating the torture they endured at the black sites,” Ladin said.
The U.S. could have made a “clean case,” but instead they subjected these men to an enormous amount of torture, he said. “The trial is also just a monumental waste ... It has been going on for so long, and it is no closer to resolution.”
According to unofficial transcripts of court proceedings, three days of hearings last week lasted some 189 minutes. That week at the court cost a whopping $1,436,400, on the basis of a previous estimate that the court costs $7,600 a minute. The hearings resumed Sunday and are expected to conclude on Oct. 30.
Previous Guantánamo military convictions — there have been eight — also had their problems. Half have been vacated in part or full, essentially because the crimes they were tried for were not war crimes, so the military commission did not have jurisdiction over them. An appeal is pending in the case of Omar Khadr. Two men who pleaded guilty are awaiting sentencing, including Majid Khan who was raped and waterboarded.
Khan’s hearing has been canceled, and the trial schedule for sentencing has been held in suspense, said his lawyer Wells Dixon, a senior staff attorney at the Center for Constitutional Rights. So the military court will be dark in November.
“Instead of bringing terrorists to justice, efforts at prosecution met setback after setback. Cases lingered on,” President Barack Obama said — back in 2009.
Nearly all observers would agree that not much has changed since then.
Update: Since this story was published, the military commission on Monday "resolved a longstanding issue regarding an alleged conflict of interest in the defense team for Ramzi Bin Al Shibh, ruling that there was no actual or potential conflict," according to Cmdr. Gary Ross, a Pentagon spokesperson.
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