Why the Arraignment of Khalid Sheikh Mohammed Matters

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FRONTLINE’s Arun Rath will be attending Saturday’s proceedings at Guantanamo. You can follow him for updates @ArunRath.

Tomorrow, Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, and four others will be arraigned at a military tribunal at the Guantanamo Bay U.S. Naval Base. They’ve been charged with terrorism and the murder of almost 3,000 Americans and could face the death penalty.

Originally captured in Pakistan 2003, the five were held in a secret location for three years before being transferred to Guantanamo Bay, where they were eventually charged in 2008 by the Office of Military Commissions. Once Barack Obama became president, Attorney Gen. Eric Holder shifted the trial to a federal court in New York City, telling the Senate Judiciary Committee that “our institutions are strong, our infrastructure is ready, our resolve is firm, and our people are ready” for such a case. After condemnation by politicians and some 9/11 family members, the trial was shifted back to the Military Commission at Guantanamo, though this time under revamped rules after those established under President Bush were ruled unconstitutional in 2006 by the Supreme Court in Hamdan V. Rumsfeld.

FRONTLINE’s Arun Rath will be attending the arraignment at Guantanamo tomorrow, and live tweeting from @ArunRath.

In preparation for the arraignment and Rath’s coverage, we spoke with an expert about what to expect and why this hearing is so important. Charles Swift is retired from the Judge Advocate General’s Corps (JAG) where he primarily litigated criminal defense cases. He is perhaps most well-known for serving as defense counsel for Salim Ahmed Hamdan, Osama bin Laden’s former driver — the same Hamdan from the above Supreme Court Case (he discusses the case in this 2007 article in Esquire).

He spoke to us from Seattle, where he has a private law practice. The conversation was condensed slightly for clarity.

Set the scene for us. What’ll court be like, what will it look like on Saturday at Guantanamo?

They’ll be opening back up a courthouse that was built back in 2007, that was built for exactly these proceedings. To my knowledge it’s only been used for one or two days back when they arraigned Khalid Sheikh Mohammed the first time back with the other defendants during the Bush administration in 2007-2008, and thereafter it was used in the [Salim Ahmed] Hamdan trial. …

It has glass walls that allow spectators to see in, but can be muted so you cannot hear what is going on inside it. You can watch it, but you cannot necessarily hear all of the proceedings. The proceedings will be miked in.

If it goes like the last time, the detainees themselves will be at the center of it. That differs from most trials, both military and federal, where, certainly in these pretrial, procedural parts, the detainees or the prisoner says nothing and the attorney does all the talking.

“I fully expect Khalid Sheikh Mohammed to get what he wants. And what Khalid Sheikh Mohammed wants is a death sentence.”

The last time, Khalid Sheikh Mohammed did all the talking and his attorney did very little. I expect that to be the case again. And that’s because Khalid Sheikh Mohammed has made it very clear that he intends to represent himself. …

The rules that were first proposed by President Bush back in 2002 provided no right of self-representation. They didn’t want the detainees making speeches. They wanted it very tied-in.

In the United States, we believe in two things: we fundamentally believe in the right to be represented by counsel. … But we equally believe that the accused — if they’re competent — has the right to represent themselves and not accept counsel. … One of the things that changed dramatically was the right to self-representation after the Hamdan trial. …

So now Khalid Sheikh Mohammad has the right to represent himself. Because Khalid Sheikh Mohammad has the right to represent himself, that makes things a lot less predictable. …

So how will the judge decide if Khalid Sheikh Mohammed can exercise the right to represent himself?

[The judge, Army] Col. [James] Pohl … is one of the most experienced and has handled repeatedly very difficult cases. From the court-martial setting, he is no stranger to war crimes. He was the military judge for the Abu Ghraib trails, he has dealt with several capital cases. I would say that he’s handled some of the most difficult cases the Army’s had in the last eight years. …

[During] the first part [of the hearing], what he’s going to try and determine is whether Khalid Sheikh Mohammed can represent himself. In part [to] make a finding as to whether he’s mentally fit and whether he actually has the capacity to do so. …

Khalid Sheikh Mohammed, who went to school in the United States, speaks English fairly well … probably can represent himself. And even if the judge doesn’t want Khalid Sheikh Mohammed to represent himself, I doubt that he will say, “Well, listen, he’s insane,” because that would create a block to the trial as well. …

So I expect the judge to indicate that Khalid Sheikh Mohammed can represent himself. That’ll be his first set of findings. …

Other than possibly representing himself, what are Khalid Sheikh Mohammed’s rights?

He has the right to plead guilty. Or not guilty. Or he could defer his plea.

In most military trials, at this stage, because you haven’t gotten all the discovery [evidence] or you’re still lining up what your defenses will be, … you reserve your pleas.

Khalid Sheikh Mohammed is probably not real interested in going through the motions that are going to be filed on his behalf, and he may well seek to enter a plea. Whether he’ll enter a plea of guilty or not guilty, though, is an interesting question. Because from Khalid Sheikh Mohammed’s own statements, he admits responsibility but not necessarily guilt.

In the military setting, if he does attempt to enter a plea, or you think that he’s entering a plea of guilty, you have to go through what’s called “providency.” Providency is to make sure that the plea is being entered because the person actually believes they’re guilty, intends and wants to admit all the elements [of the crime]. …

If you fail at providency, regardless of what you say, the military judge enters a not guilty plea on your behalf.

Now, if you were to ask me for a bet on this, I would say that, at the end of the day, Khalid Sheikh Mohammed is not going to do the things that are necessary for the guilty plea to be provident, if he does enter one.

I expect Col. Pohl’s going to end up erring on the safe side and say, “Gosh, I can’t get reversed if I enter a plea of not guilty on his behalf. If I enter a plea of guilty on his behalf and we move directly into sentencing and he’s sentenced to death on Sunday, this might get overturned sometime down the future.

If Khalid Sheikh Mohammed or the judge enters a plea of not guilty, what happens then?

Then he will set a trial date. … This will happen for each of the defendants.

This is a very interesting group because, while the allegations are generally a 9/11 conspiracy, the level of their roles and defenses are diverse. Extraordinarily diverse. Certainly, if I were someone like Khalid Sheikh Mohammed’s nephew [Ammar al-Baluchi, who also goes by Ali Abdul Aziz Ali], I would be trying to get out of this trial. I would want a separate trial. The evidence on him is not very strong. The strongest piece of evidence was that he applied for a visa about the time of 9/11. …

Can he try and get out of it? How would that happen?

He probably could. It depends on how much his uncle influences him to want to die at this point. He has a very good case, from my viewpoint. Not necessarily of walking free, but of avoiding the death penalty. …

To me, one of the things that I’m going to be watching, is what’s happening with the lesser individuals. Khalid Sheikh Mohammed is entertaining, but I think I know what’s going to happen in the end.

And that is?

I fully expect Khalid Sheikh Mohammed to get what he wants. And what Khalid Sheikh Mohammed wants is a death sentence.

Do you have any sense of what the lasting impact of this trial might be?

That’s still yet to be seen. I think it’s always easy to react immediately, but it’s difficult to gauge long-term. …

Zacarias Moussaoui [the alleged replacement for a 9/11 hijacker who was convicted and is serving a life sentence] is an excellent example. At the time there were an awful lot of things said. It’s easier to gauge the impact or non-impact of Moussaoui as we move away from the trial. … Five years later we go, “What was the big deal?” Most people don’t remember his name. He did not become a famous Supreme Court case. …

“The trial tells us an awful lot about two things: It tells us a lot about the man who stands in front of the bar, and also tells us a lot about the people who hold the trial.”

The Hamdan case is not forgotten – although Hamdan was released [after serving his sentence of five-and-a-half years] and is in Yemen now. But his case is remembered because of what happened procedurally and legally in it. We don’t yet know what’s going to happen with Khalid Sheikh Mohammed. …

The trial [in general] tells us an awful lot about two things: It tells us a lot about the man who stands in front of the bar, and also tells us a lot about the people who hold the trial. We’re going to learn a lot. …

Khalid Sheikh Mohammed is a volunteer. If he changes his position and stops being a volunteer –

Explain what volunteer means?

… Persons who are sentenced to die, wherein the accused is in complete agreement with the state that the appropriate punishment is death. And they are not actually fighting the state. …

Many defendants fight vigorously, and the adversarial system then is presumed to produce a pretty decent result. But there are defendants who do not fight. …

Here, in Khalid Sheikh Mohammed’s case, I don’t know what that will tell us about the system yet [if he doesn't fight]. It probably won’t vindicate the system because it wasn’t put to the test.

On the other hand, it will be interesting to see over the course of this trial … because, as Khalid Sheikh Mohammed tries to set out his reasons for martyrdom, … [he will] perhaps talk about his treatment [in custody] and all of these sorts of things, and Col. Pohl is going to try and restrict him.

How much power does Col. Pohl have to do that?

Here’s one of the interesting deals: [Khalid Sheikh Mohammed] as an accused, [Col. Pohl] has very little power to restrict him. As a lawyer, he has a great deal of power to restrict him. When the accused becomes their own counsel, they’re like every other lawyer in the courtroom. They have to play by the same rules, even if they don’t understand them or care about them.

And that’s one of the reasons Khalid Sheikh Mohammed might get relieved of the ability to represent himself: the inability to comply with court rules.

What will be interesting is, [if] every time Khalid Sheikh Mohammed tries to talk about his treatment, Col. Pohl tries to shut it down. …

My perception is this, on the military commissions and where they go from here: The military commissions, at their inception, were created to keep from the public view how the detainees had been treated and to use the products of that treatment in their trial. That that was the raison d’etre for their creation.

I think they will only be a success if they reverse course on that, and they say: whatever he wants to talk about. If he wants to talk about waterboarding, so be it. And we allow it all to come out.

And if they do that, then I think that the military commissions will probably go down in history as fair and successful.

Has that kind of allowance during a trial happened before? Or would it sent a precedent?

This is a unique place in time and history. … We don’t have [a case] where the government has admitted to such systematic, deliberate abuse. There are certainly cases where confessions were coerced. It’s a long part of history. But no one in the government claimed that they did so on orders. No sheriff came in and said, “No, the mayor and the governor told me to get out a phone book and hit this boy until he talked.” They had never heard that. Ever. Generally, [it was] denied. …

Now what we seek to do is pretend like it didn’t happen. Not that it wouldn’t be relevant, but pretend it didn’t happen. And I think that’s a huge issue on these trials. The way they gain legitimacy is to abandon the purpose for which they were set up. …

Hamdan’s [case] was certainly successful because it was open to the public. Because it didn’t try and hide the evidence, because it didn’t run away from American values. And in the end, one of the tragedies was that it wasn’t broadcast for everyone to see. It would have done a lot to restore American legitimacy.

Khalid Sheikh Mohammed’s trial is, again, an opportunity. … I think we’ll only gain legitimacy if we embrace our mistakes, because our mistakes don’t justify what Khalid Sheikh Mohammed is accused of doing. It is not that two wrongs make a right in this. They don’t. …

But I think if we run away from it, then the commissions will be seen by the rest of the world, at least, as illegitimate. … The proof is in the pudding. When the doors keep getting shut, I think people will start to conclude that it isn’t open, that it isn’t fair.

The trial, … to the extent to which we get to see it, will tell us a lot more about Khalid Sheikh Mohammed, especially if he represents himself. We’re going to learn a lot more about this man.

We’re also going to learn a lot more about who we still are.

Photo: In this June 5, 2008 file picture of a sketch by courtroom artist Janet Hamlin, reviewed by the U.S. Military, Khalid Sheikh Mohammed, a suspect in the Sept. 11 attacks co-conspirator case, attends his arraignment at the U.S. Military Commissions, at Guantanamo Bay U.S. Naval Base, in Cuba. (AP Photo/Janet Hamlin, Pool)
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