Undermining American Justice

Sahr MuhammedAlly – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, June 5, 2008: At the arraignment today of five defendants accused of coordinating the September 11 attacks, the focus was not on the defendants’ alleged crimes, but on the trampling of due process and the rule of law, which are the foundations of American justice.

Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek bin Attash, Ramzi Bin al Shibh, Ali Abdul Aziz Ali (aka Ammar al Baluchi), and Mustafa Ahmed Adam al Hawsawi are alleged to have directly aided, planned or financed the attacks. All are charged with offenses that could carry the death penalty.

The Rush to Arraign and its Effect on Selection of Counsel

Judge Marine Colonel Ralph Kohlmann began the proceedings by asking Mohammed questions about choice of counsel. Civilian defense counsel David Nevins, who had only met with Mohammed for 5 hours two days prior to the arraignment, strenuously objected to the court’s inquiry. He explained that he had not had enough to time to meet with Mohammed to build trust and explain the gravity of the decision regarding representation in capital cases. He also questioned the defendants’ competency. Civilian defense counsel for Al Shibh, Tom Durkin, stood up to echo the same concerns and request a postponement of the arraignment. Judge Kohlmann cut off Nevins and Durkin – two experienced trial lawyers who have handled death penalty cases – telling them to sit down and be silent as he had already made his rulings.

The September 11 Five, and other prisoners held by the CIA, were subjected to enhanced interrogation techniques, including waterboarding, exposure to extreme cold (including induced hypothermia), stress positions, extreme sensory deprivation and overload, shaking, striking, prolonged sleep deprivation, and isolation, among others. CIA director Michael Hayden in February 2008 admitted that Khalid Sheikh Mohammed and two other CIA prisoners were subjected to waterboarding. The September 11 Five, and other CIA prisoners, were subjected to enforced disappearances, and held without access even to the International Committee of the Red Cross (ICRC) for several years until they were brought to Guantánamo on September 6, 2006.

Now their first contact with lawyers is with men and women in military uniform. The uniform creates hurdles in building rapport and gaining trust to facilitate attorney-client relationships. Detailed military counsel were appointed for many of the defendants only in the last month and have spent very few hours with their clients due to delays in getting security clearances. A military counsel for Hawsawi was only granted a security clearance the night before the hearing. Civilian defense counsel have spent even less time with the defendants; most met their clients just two days prior to their arraignment. Yet Judge Kohlmann refused to grant a basic request for an extension. Defense filed two motions for continuances prior to June 5, and both were denied. During the court proceedings, military and civilian defense counsel repeatedly requested continuances. Each request was denied.

The American Bar Association (ABA) guidelines recommend two lawyers with death penalty experience and a mitigation expert in capital cases. At one point, when the judge asked a skeptical al Baluchi about choice of counsel, Ammar al Baluchi asked the court, “If my case is a capital case shouldn’t I have capital defense team before my arraignment?” Judge Kohlmann responded, “This is not a MCA (military commission act) rule.”
Judge Kohmann asked each defendant whether he had read the charges. A few had, but some had not. Each defendant was asked whether he had examined the evidence. Mohammed’s answer was not heard by the public as the audio was turned off. Attash said that some papers were “secret” but he did not know what “secret means.” Al Baluchi said that he has seen the evidence if it was “the information that was forced out of me.”

Al Baluchi told the court that, “Everything that has happened here is unfair and unjust. . . The government is talking about lawyers free of charge. The government also tortured me free of charge all these years. Lawyers are decorative they cannot talk on our behalf. . . But the court already made decision that is behind the desk. This is a stage play. I don’t want anyone to bother with my case.”

When the judge asked each defendant whether he understood that this is a capital case and could result in death, Mohammed and Attash said that they wish to be martyrs. Hawsawi appeared confused and kept asking whether the judge wanted to execute him and said, “you expect me to face death? You expect me to accept punishment when I have not looked at the charges?”

Pressure to Reject Counsel

Prior to arriving at the courtroom, the human rights observers had heard that the defendants, who have not communicated with each other for years, were allowed to interact for 15-20 minutes before the hearing began. Throughout the day, the defendants were gesturing and talking to each other. The impact of this was significant. One by one, each defendant decided to reject legal representation.

Defense counsel Army Major John Jackson, who has been assigned to represent Hawsawi, objected to allowing the defendants to talk to each other and suggested that this had influenced his client’s decision to opt for self-representation. Maj. Jackson told the court that he had been building a rapport with his client, who wanted legal representation, but a short time into today’s proceedings Hawsawi began having second thoughts and elected to represent himself. Maj. Jackson told the court that “the defendants have been communicating with each other throughout this proceeding leading my client to change his position. I do not believe this is voluntary.” Maj. Jackson told the court that his interpreter overheard Mohammed tell Hawsawi, “So, you’re in the Army now?” He further stated that “this is the most prejudicial use of joinder” he has seen and will move to separate Hawsawi’s case from the other co-conspirator defendants. At the press conference later, Maj. Jackson said he had spent 20 hours building rapport with his client, but Hawsawi’s demeanor changed in the courtroom. At 5:00 p.m., Judge Kohlmann—after more than 5 hours into the session—finally ordered the defendants to stop talking.

Lt. Cmdr. Brian Mizer, who represents Al Baluchi, similarly told the court that his client had agreed to accept legal representation, but in court Al Baluchi elected to represent himself.
Judge Kohlmann held off on determining whether Hawsawi and Shibh’s decisions were voluntary. Shibh’s lawyers told the court that they had learned at 9:00 pm on June 4 that Shibh was taking psychotropic drugs, which could affect his cognitive ability to make his decision on election of counsel.

Judge Kohlmann allowed military counsel to act as standby advisors to Khalid Sheikh Mohammed, Attash, and Al Baluchi. It is unclear what role civilian defense counsel may play. It is also unclear how classified information will be shared with defendants who are representing themselves. In fact, at the end of the day, when the judge was instructing the prosecution and military counsel about the introduction of classified information, he also instructed Mohammed, Attash, and Al Baluchi. It was one of many bizarre moments today.

Treatment is a State Secret

Under the government’s rules, everything that the defendants say is presumptively classified. Anything regarding their treatment while in CIA custody or in Guantánamo is also classified. Thus Judge Kohlmann ordered a 20 second delay in the audio feed transmission to persons outside the courtroom today, including the viewing gallery where the NGO observers sat, and special viewing sites.

In one instance, Ammar al Baluchi, said “If I was given a lawyer the first day when they they arrested me…” but the audio was cut off for 90 seconds. It sounded like he was about to describe the circumstances of his capture but that was determined to be classified.
When Ramzi bin al Shibh, started explaining to Kohlmann why he had been taking ”psychotropic drugs” since arriving at Guantánamo, the sound went off for about 4 minutes. A few minutes later, when he told the judge that its not easy to explain the reasoning behind the drugs wihout the details, the audio was cut off for about 90 seconds.

Cognizant of what can and cannot be said, Khalid Sheikh Mohammed told the judge, “I do not mention the torturing. I know this is a red line.”

* * *

I was in New York on September 11, not far from the World Trade Center, and I saw the buildings collapse. Today we saw the alleged co-conspirators of the September 11 attacks. I, however, left the courtroom dismayed about a justice system that is fraught with questions about fairness.

The trials are taking place in a forum that allows the use of statements obtained through cruel and inhumane interrogations, so long as the interrogation took place prior to 2006, and the military judge finds the evidence “reliable” and “in the interests of justice.” There is an absolute ban on the introduction of involuntary statements in the civilian criminal justice system and the court-martial system. The trials are in a forum that is not independent and subject to political pressure as publicly stated by former military commission prosecutors. The trials are in a forum that significantly undermines the rule of law and is yet another factor since September 11 that has eroded America’s moral authority and credibility.

The American justice system is as much on trial as the September 11 Five. Today’s hearing was not a victory for the American way.