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Defending the Indefensible: 9/11 Mastermind’s Trial Likely Years Away

May 7, 2012 at 12:00 AM EDT
"These men have endured years of inhumane treatment and torture," defense attorney James Connell said Sunday at a Gitmo hearing for Khalid Sheik Mohammed and his alleged 9/11 co-conspirators. Margaret Warner, Frontline's Arun Rath and Medill National Security Journalism Initiative's Josh Meyer discuss the next steps in the case.

For more on Saturday’s proceeding and the wider case, we go to Arun Rath, who has been reporting military justice stories for our PBS partner “Frontline,” and Josh Meyer, co-author of the new book “The Hunt For KSM.” He now teaches and directs a program at a Medill Journalism School’s National Security Initiative. Both attended the session at Guantanamo.

So, gentlemen, starting with you, Arun, take us inside that room. What was it like for this marathon session?

ARUN RATH, “Frontline”: Well, the gallery room, which is where the journalists who were in the pool selected to go in, as well as the 9/11 family members and some representatives from NGOs, it’s actually — it’s part of the courtroom, but it’s separated by double-paned, supposedly soundproof glass.

For security reasons and also so that they — what we hear is we hear the court loudspeaker played on a 40-second delay, sort of like what a shock jock would use, so obscenities don’t get out on the air. This is so that they can stop, you know, the proceedings and people won’t hear if something comes up for security reasons.

MARGARET WARNER: And, Josh Meyer, it sounded — from reading the accounts, it sounded as if KSM, Khalid Sheikh Mohammed, was very much in the lead among the defendants in sort of his behavior.

JOSH MEYER, co-author, “The Hunt for KSM”: Yes. Yes.

I mean, he stayed true to form. He’s the leader of the group. And he’s a very disruptive presence in the courtroom. But what’s different about this from the last time I was there in 2008 and the last time we saw him publicly is in that case he was very defiant, very loud, had a lot of outbursts.

And in this case, he was basically showing his opposition by not saying anything, not doing anything and telling the others to do the same.

MARGARET WARNER: And then, what, some of them took out prayer rugs and started praying?

ARUN RATH: Yes. One of them, Waleed Bin Attash — Waleed Bin Attash — removed his shirt in the middle of the proceedings to show his alleged scars from torture. The judge obviously told him to knock that off.

Another one stood up to pray at an unscheduled time in the middle of the proceedings. And then there was Ramzi Binalshibh, one who shouted out in the middle of the proceedings, saying that he was worried that they were going to kill him and make it look like a suicide, that he wouldn’t be back again.

MARGARET WARNER: And the defense attorneys raised a lot of objections too.


I mean, it’s pretty clear from their objections that this is going to go on forever. One of the attorneys told me that it could be years, maybe four years, before there’s a trial. But what they were doing and what they said that their clients was doing just protesting, a silent protest for what they said was the unfairness of the whole system from front to back.

MARGARET WARNER: As we saw that defense attorney, Connell, say, but to what end? I mean, is to just lay the groundwork for a future appeal?

ARUN RATH: I think there was a lot of that. During the questioning. . .

MARGARET WARNER: Because they can appeal to federal court. Right?

ARUN RATH: Right. I think there was a lot of questioning of the judge, bringing up issues. One attorney basically questioned his qualifications. The other questioned his objectivity.

There were a lot of laying the groundwork for appeals in the future.

MARGARET WARNER: Now, the torture issue, how is it — I mean, some of the objections, again, as we heard from Connell, had to do with trying to introduce the idea that their clients had been tortured or mistreated.


MARGARET WARNER: What is the — will they be allowed to testify about that? What does the defense want to do with that in terms of strategy?

JOSH MEYER: Well, you know, that’s one of the big questions, is so much of this process is top-secret and classified that we don’t even know whether they’re going to be allowed to do that.

The lawyers for the — you know, for the five men say that they’re not even allowed to discuss this with their clients, their time in captivity, what the CIA did to them, whether they’re going to be able to introduce into court. So, of course, that’s extremely important. Whether they can — there’s an assumption that they’re going to get convicted.

But whether they get the death penalty, the torture issue I think will be extremely important in terms of a mitigating factor.

ARUN RATH: And, as we’ve heard, they’re not going to be using evidence in court that was derived from the harsh interrogation techniques.

But the defense is contending that, you know, these guys were tortured right from the get-go And anything that has come out of their mouth since then, even though it was obtained by supposedly what they called the clean team, who went in and obtained interviews without using these techniques, it’s still tainted by the torture and they are going to try to have it thrown out for that reason.

MARGARET WARNER: Now, remind us about Khalid Sheikh Mohammed and the role he played – you’ve just written a book about the hunt for him — the role he played in al-Qaida in the years when it was most effectively, you know, operational.


Well, it’s interesting. And that’s a good question. There’s a big disconnect there. I think most of the American public think that Osama bin Laden is the guy who did 9/11. And when you really look at it, Khalid Sheikh Mohammed is. He was the guy who brought the plot to bin Laden in ’96, had to spend two years talking him into it.

Finally, he got the green light to do it and he got a little bit of manpower and some money from bin Laden. But he did it himself pretty much as an independent contractor. He kept his independence from al-Qaida so he could run it his way. And during that whole time, he was also plotting as many as a few dozen other attacks.

After 9/11, he personally decapitated Daniel Pearl, the Wall Street Journal reporter. So, when people think of bin Laden, he actually was the guy sitting up in a corporate office not doing much in terms of actual operational stuff. KSM is the guy that was out there traveling around the world and getting things done.

MARGARET WARNER: Now, about four years ago, I think, at a hearing, he — Khalid Sheikh Mohammed proclaimed that he was behind 9/11. Does the way their attorneys acted suggest now they have a different strategy?

ARUN RATH: Well, it. . .

MARGARET WARNER: In other words, he’s sometimes described as the confessed or self-professed mastermind.

ARUN RATH: Well, I think what they would say again is that that statement was made even though — that same thing, that’s where he admitted to killing Daniel Pearl. But this was made after he spent all those — time in the black sites and after the torture. So I think they will say again that is still tainted by the. . .


MARGARET WARNER: There’s been this huge debate of course about whether they should be in a military or civilian/federal court. How different are the procedures in this proceeding than they would be in a civilian trial?

JOSH MEYER: I think they’re very different.

I covered at least part of the embassy bombings in 2001 of the guys that were charged with blowing up two American embassies in Africa. And it was a much more transparent system. You had family members of the victims in court with them, so they could stare them down. You had witnessed being brought in, tons of evidence being read, a lot of cross-examination.

And it remains to be seen if that’s going to happen here, but I think that the difference is that this proceeding is being done on a military base in the middle of nowhere, so people can’t even get there.

MARGARET WARNER: And the jury of course is not going to be — is going to be military officers.



This is much closer to the Universal Code of Military Justice, even more so than the Bush military commissions were.


ARUN RATH: And one of the interesting things, though, is that while there are issues with transparency in it, there are other ways in which — for instance, Saturday, one of the reasons it was so contentious was the questioning of a judge, the voir dire proceedings are — in some ways, they’re more empowered in the military system than they are in the civilian.

MARGARET WARNER: So how long will it be before they actually get to the substance of these charges?

JOSH MEYER: Well, I think starting next month they’re going to start looking at the motions.

And the lawyers told me that they’re going to file literally hundreds of motions, from their access to discovery, from their ability to talk to their clients in confidence, from the resources they have been provided. You have to remember the U.S. government has spent 10 years now investigating 9/11.

And there’s a presumption in a case like this that the defense is supposed to have at least some parity in terms of defending their clients. And so there’s a lot of issues that have to be adjudicated.

MARGARET WARNER: Some years to go.


MARGARET WARNER: Well, Arun Rath and Josh Meyer, thank you both.

JOSH MEYER: You’re welcome.

ARUN RATH: Thank you.