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Accused 9/11 Plotters Begin Trials as Legal Issues Linger

June 5, 2008 at 6:20 PM EST
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Five accused Sept. 11 plotters, including the alleged mastermind of the attacks, Khalid Sheikh Mohammed, appeared in a Guantanamo military court for the first time Thursday. A reporter looks at the proceedings and the legal issues they raise.
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JEFFREY BROWN: Nearly seven years after the September 11th attacks, the al-Qaida operative who confessed to planning that strike was charged today with 2,973 counts of murder, one for every victim on 9/11.

Khalid Sheikh Mohammed faces a possible death sentence, if convicted in a military tribunal at the U.S. naval base at Guantanamo Bay, Cuba.

Also arraigned today on similar charged were: Waleed Bin Attash; Ramzi bin al-Shibh; Ali Abd al-Aziz Ali; and Mustafa Ahmad al-Hawsawi.

But hanging over these proceedings are continuing controversies over the alleged abusive treatment of detainees at Guantanamo and elsewhere and the legality of the military commissions system itself.

The original tribunals, initially a presidential creation, were declared unconstitutional by the Supreme Court. Congress then passed the Military Commission Act in 2006, reconstituting the tribunal system, but that law is also now under Supreme Court review.

Khalid Sheikh Mohammed was captured in Pakistan in 2003 and, like his co-defendants, was held by the CIA in secret prisons at undisclosed locations overseas.

The CIA has acknowledged interrogating Mohammed with the controlled drowning technique known as waterboarding.

Mohammed and his co-defendants were transferred to Guantanamo in 2006. Since then, their case and others have provoked several legal twists and much confusion.

Yesterday, Air Force Brigadier General Thomas Hartmann, the chief legal adviser to the tribunals, said the system’s clear goal is impartial justice.

BRIG. GEN. THOMAS HARTMANN, Legal Adviser, U.S. Military Tribunal System: Our focus is on making sure, making absolutely sure within the power that we’ve got under the Military Commission Act, that was passed in conjunction with the president and the Congress, and the Department of Defense, to make sure that these trials are fair, just and transparent.

The controversy over detainees

Suzanne Lachelier
U.S. Naval Reserve
I think the American people, if they watched, and if they knew what was going on, if they understood the ramifications in the long term to our Constitution, to their Constitution, I think they would be ashamed.

JEFFREY BROWN: But Hartmann himself was removed from the supervision of one case just last month by a tribunal judge. Hartmann's office was to be a neutral arbiter between the prosecution and defense in all cases, but the judge found he had pressed attorneys to prosecute high-profile cases first and recommended how the prosecutions should proceed.

Hartmann had no comment on the ruling, but had in the past denied any meddling. The case from which he was removed involved Salim Hamdan, who had been Osama bin Laden's driver.

In a further turn of events, the former chief prosecutor for the tribunals, Air Force Colonel Morris Davis, testified on Hamdan's behalf after resigning his post in protest. Davis said there had been improper political meddling in the cases by Pentagon officials.

At Guantanamo today, a naval reserve defense attorney not involved with Mohammed or his co-defendants said the process was flawed.

CMDR. SUZANNE LACHELIER, U.S. Naval Reserve: I think the American people, if they watched, and if they knew what was going on, if they understood the ramifications in the long term to our Constitution, to their Constitution, I think they would be ashamed.

I wear the uniform with pride. I am proud to be a member of the U.S. Navy, but I don't think these proceedings make for a proud day for any member of the service.

JEFFREY BROWN: Last month, an FBI inspector general report suggested that there had been abuse of detainees at military prisoners, including Guantanamo.

FBI agents allegedly witnessed abuse and reported the activity. Those statements reached the National Security Council, but prompted no action.

President Bush and Senators Obama and McCain have all said that Guantanamo should be closed, but for the foreseeable future that detainees will remain there, as Defense Secretary Robert Gates made clear recently in this exchange.

SEN. DIANNE FEINSTEIN (D), California: What is the status of your Pentagon review? And what is the status of the interagency review to close Guantanamo?

ROBERT GATES, Secretary of Defense: Senator, I think the brutally frank answer is that we're stuck.

JEFFREY BROWN: In the meantime, the trials of the men arraigned today are scheduled to begin September 15th, unless the Supreme Court once again invalidates the military commission process.

JUDY WOODRUFF: A short time ago, Jeff spoke with Carol Rosenberg of the Miami Herald from Guantanamo Bay. She's been watching today's proceedings on closed-circuit television.

Detainees make first appearance

Carol Rosenberg
The Miami Herald
They one-by-one rejected the legitimacy of the court. They one-by-one said they didn't want their U.S.-paid lawyers. And they said they wanted to defend themselves.

JEFFREY BROWN: Well, Carol, Khalid Sheikh Mohammed told the judge today that he would welcome becoming a "martyr," his word. What else struck you about what he and the others had to say?

CAROL ROSENBERG, The Miami Herald: Well, what we saw this morning was remarkable. Until nine o'clock this morning, these men were ghosts, held for three years by the CIA off the records of the Red Cross, came here to Guantanamo in 2006, and hadn't seen their lawyers until five or six weeks ago.

They were in court. Only one of them was shackled to the floor. They were articulate. They one-by-one rejected the legitimacy of the court. They one-by-one said they didn't want their U.S.-paid lawyers. And they said they wanted to defend themselves.

Khalid Sheikh Mohammed said he would welcome martyrdom. This was during the detainee-by-detainee questioning from the judge, Colonel Kohlmann, of their capacity to act as their own attorneys.

He led them through a series of questions and, when he asked Khalid Sheikh Mohammed if he understood that the punishment for this crime, which is the overarching 9/11 conspiracy, was death, he said he welcomed martyrdom.

JEFFREY BROWN: And since it has been so long since we've seen him and the others, what was your impressions of how he looked? What was his demeanor?

CAROL ROSENBERG: He was a big surprise. You know, the picture that we all have in our mind is of that man who was rousted out of in bed in Pakistan in his t-shirt with tussled hair. Well, he looks like that man's father or grandfather.

He has a huge, burly beard. It's mostly white. There's a debate about whether the beard puts weight on him or he looks heavier. But I don't recognize the man in the picture from the man in the court today.

The elaborate court proceedings

Carol Rosenberg
The Miami Herald
One of the defendants who explained that he's Microsoft Office-trained and is the nephew of Khalid Sheikh Mohammed said, "You think I'm a criminal? I think this is political."

JEFFREY BROWN: Carol, everything about this is so unusual. Tell us a little bit about the security setup there, how you and other observers were able to watch. And I understand there's a delay system in what you're actually hearing from there?

CAROL ROSENBERG: They've built a maximum-security bunker. And inside it is the courtroom. It is equipped with a sound-proofed viewing booth for the media and legal observers and a closed-circuit feed to the media room. And there's a 20-second delay.

And as the judge explained when he started this morning, there's a security officer with his finger on the button. He can mute what these men say.

And we've seen it used a number of times today, one reference apparently to torture. We don't know what came next. There was some white noise, and the feed went off the screen.

Ramzi bin al-Shibh, one of the attorneys -- excuse me, Ramzi bin al Shibh, one of the detainees, who -- the one who was shackled to the floor, talked about some psychotropic drugs he was on, and the screen went blank, and the white noise came, and we were told that we couldn't hear the discussion of what kind of drugs he's on as part of his HIPAA privacy protections.

JEFFREY BROWN: Are defense attorneys present there? What is the status of that?

CAROL ROSENBERG: Yes, it looks like this. You have the men sitting in the defendant's chairs, five in a row. Alongside each one of them are one, two, three, and, in one instance, I believe four attorneys, military and civilian, and a translator.

Just to the other side of them are two and three guards each. And the lawyers are sitting there. You have the attorneys -- men and women -- in military uniforms, who've been appointed by the Pentagon to defend them free of charge.

And you also have men and women in suits, civilians, who the criminal defense lawyers groups have put together to help defend these guys.

The American Civil Liberties Union and a number of other groups have been supporting providing defense lawyers for these gentlemen because they're facing the death penalty and they believe that they need a full, robust defense team.

But what we saw today is these detainees, the men accused of the 9/11 attacks, are rejecting their lawyers. In some instances, they're saying that they'd like to have them as advisers, but in no instances are they allowing them to be their attorneys.

And that's because, they say, they're wearing the uniform of the enemy and this military commission, with officers as judges and jurors and defense attorneys, in their mind, is illegitimate.

One of the defendants who explained that he's Microsoft Office-trained and is the nephew of Khalid Sheikh Mohammed said, "You think I'm a criminal? I think this is political."

Next phase is unclear

Carol Rosenberg
The Miami Herald
He's found provisionally that three of the other men have enough competency and understanding of the process to act as attorneys.

JEFFREY BROWN: Carol, we mentioned in our setup the Supreme Court case looming over this and the various continuing criticisms over whether the tribunals themselves are fair. What happens next in this particular case?

CAROL ROSENBERG: Well, first of all, the judge is going to decide whether Ramzi bin al-Shibh can act as his own lawyer. This is still to be worked out.

He's found provisionally that three of the other men have enough competency and understanding of the process to act as attorneys.

What would happen, if there were military defense attorneys, is then there would be law motions. And the law motions would argue that parts of the crime are irrelevant or that there's -- seek to disregard or exclude evidence.

But with these men acting as their own attorneys, we're not sure where the next phase goes.

JEFFREY BROWN: All right, Carol Rosenberg of the Miami Herald, thanks very much.

CAROL ROSENBERG: Thank you.