Statement of September 11th Advocates Regarding Guantánamo Bay Military Tribunals
For Immediate Release
May 4, 2012
It would seem that the U.S. Government found itself in a conundrum when they allowed prisoners, like Khalid Sheikh Mohammed (KSM), to be tortured in secret prisons around the world. Once tortured, any confession or testimony from KSM, or others, could not be deemed reliable. Furthermore, the focus of the eventual proceedings would become a trial about the practice of torture, instead of being a trial about alleged terrorist crimes. That would have been untenable for the U.S. Government, which wants to avoid any and all accountability for their own crimes of torture.
In order to bypass potential discussion of torture, the latest Chief Prosecutor for the Military Commissions, Brig. General Mark Martins, found a willing witness in Majid Khan, a fellow GITMO inmate to KSM. Khan himself was not involved in the 9/11 plot. He supposedly got his information from time spent behind bars at GITMO with KSM. Kahn will be allowed to give this hearsay evidence against KSM in return for a reduced sentence. However, Khan’s sentencing won’t take place for four years. It seems the Prosecution is pinning their hopes and dreams on Khan’s upcoming performance. None of this lends credibility to an already suspect system.
Additionally, with campaigning for the upcoming Presidential elections heating up, the timing of this latest attempt at justice for 9/11 is exploitive at best.
Patty Casazza Monica Gabrielle Mindy Kleinberg Lorie Van Auken
9/11 defendants charged in Guantánamo court
May 5, 2012
The five men accused of plotting the deadly September 11, 2001 attacks in the United States were formally charged on Saturday with crimes that include murder and terrorism.
Confessed mastermind Khalid Sheikh Mohammed and the four other accused opted to plead neither innocent nor guilty, but rather to defer their plea to a later date.
The special military tribunal charged Mohammed, 47, and the four others with “conspiracy, attacking civilians, murder and violation of the law of war, destruction, hijacking, terrorism” for their role in the strikes in which Al-Qaeda militants flew hijacked airliners into the World Trade Center in New York, the Pentagon, and a field in Pennsylvania.
If found guilty, the five face the death penalty for their role in the attacks that killed 2,976 people.
Mohammed was charged along with his Pakistani nephew Ali Abd al-Aziz Ali, also known as Ammar al-Baluchi; Mustapha al-Hawsawi of Saudi Arabia; and Yemenis Ramzi Binalshibh and Walid bin Attash.
After a hearing lasting more than nine hours, Mohammed and the co-defendants — in a much-anticipated first public appearance in three years — opted to defer their plea.
“Maybe you’re not going to see us any more,” Binalshibh shouted out in a dramatic moment at the arraignment hearing in the US base in southeastern Cuba, telling Judge James Pohl, “You are going to kill us.”
Dressed in white jumpsuits, with some wearing white turbans, the men mostly watched the proceedings in silence, refusing to engage with the officials.
Binalshibh interrupted however by suddenly standing to pray, and then alternately kneeling and standing.
He also shouted out: “The era of Kadhafi is over but you have Kadhafi in the camp … you are going to kill us and say that we are committing suicide.”
Only one, bin Attash, was handcuffed when the group was brought into court, but Pohl ordered the manacles removed after being assured he would “behave appropriately.”
The arraignment, one of the last steps before a so-called “trial of the century” takes place, marks the second time the United States has tried to prosecute the 9/11 suspects.
During the procedures the five men mostly kept their eyes fixed on the ground. Two of them were reading a book which appeared to be the Koran, while they were also passing a copy of The Economist magazine among themselves.
“Accused refused to answer,” Pohl repeated over and over again, each time an accused defiantly refused to respond to questions.
Mohammed, dubbed KSM for his initials, remained calm, his long, flowing beard appearing to have been dyed with red henna.
Mohammed’s lawyer David Nevin said his client, who three years ago confessed to the 9/11 attacks “from A to Z,” probably would not speak at the hearing because he is “deeply concerned by the fairness of the process.”
The accused men also refused to wear headphones to hear the simultaneous translation of the proceedings, which were being held in English. Their lawyers said it reminded them of their harsh interrogations.
Bin Attash’s civilian attorney Cheryl Borman, the only woman on the defense team, was dressed in black and wore a hijab. “Because of what happened to them … during the last eight years, these men have been mistreated,” she argued.
The hearing comes about one year after President Barack Obama ordered the US Navy SEALs raid that killed Al-Qaeda chief Osama bin Laden.
The five men have been held for years at the US naval base in southeastern Cuba while a legal and political battle has played out over how and where to prosecute them. Debates have also raged over their treatment.
Mohammed was arrested in 2003 and spent three years in secret CIA jails where he was subjected to harsh interrogations, including waterboarding, and confessed to a series of attacks and plots.
The Pentagon opened four military bases in the United States to allow families of the 9/11 victims to watch the case unfold on a giant screen.
The trial could still be years away, unless Mohammed pleads guilty to be put to death sooner and become a “martyr” for al Qaeda.
Khalid Sheikh Mohammed: former military prosecutor denounces trial
by Chris McGreal May 4, 2012 Guardian.co.uk
Morris Davis says allowing evidence from torture means the world will never see Guantánamo Bay trials as fair
The former chief US prosecutor at Guantánamo Bay has denounced the military trial of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks due to appear in court at Guantánamo on Saturday, as intended primarily to prevent the defendants from presenting evidence of torture.
Morris Davis, a former colonel who was chief prosecutor when Mohammed was brought to Guantánamo in 2006, said the military commissions will be badly discredited by the use of testimony obtained from waterboarding and other “enhanced interrogation” techniques used on the accused men.
Mohammed and his four co-accused – Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi and Walid bin Attash – are to appear at an arraignment hearing before a military commission to plead to charges of 2,976 counts of murder for each of the victims who died on 9/11, terrorism, hijacking, conspiracy and destruction of property. The prosecution is seeking the death penalty for all of the men.
Davis, who resigned over the issue, wanted to see Barack Obama follow through on a commitment to move the trials to more open civilian courts but said that advocates of military tribunals prevailed in large part because the rules of evidence prevent the defendants from giving detailed descriptions of how they were tortured as well as other sensitive information such as details of the CIA’s secret detention programme and the co-operation of foreign countries, such as Britain, in their capture and interrogations.
“The truth is the reason the apologists want a second-rate military commission option is because of what we did to the detainees, not because of what the detainees did to us,” he told the Guardian. “If you look beneath the layers on why there’s even an argument for military commissions, it’s really about our mistreatment of detainees – a fairly small number of people for a short period of time that because of what most people would call torture, it makes it a greater challenge to prosecute the cases in our regular courts.”
Other senior military lawyers have objected to the trials, including Rear Admiral Donald Guter, the former judge advocate general of the navy, who called the Guantánamo commissions a “circus”.
Second trial for Mohammed
This weekend’s hearing will be the second attempt to try Mohammed. At a similar hearing in 2008, he tried to plead guilty, saying he wanted to be put to death as a martyr, but the US supreme court later struck down the rules of evidence and the trial was called off.
At the time, Mohammed said: “After torturing, they transferred us to inquisition land in Guantánamo.”
Obama came to power a year later promising to scrap the military tribunals and close the Guantánamo prison because they were “a symbol that helped al-Qaida recruit terrorists to its cause”, but Congress blocked the move.
The president did oversee important changes to the conduct of the military trials including new rules that do not allow a defendant’s own confessions under torture to be used against him. But the statements of others who were tortured can be used which permits the interrogations of the five accused to be used against each other.
The military tribunal rules also forbid discussion of torture and other sensitive information that would be heard in a civilian court. The public and press are kept behind a glass screen at Guantánamo and the proceedings they hear are subject to a 40-second delay so censors can block testimony the government does not want made public.
The five accused were held incommunicado for several years by the CIA which subjected Mohammed to waterboarding 183 times. Other forms of torture used against the men, with legal cover from the Bush administration, included being made to stand naked for days at a time, beatings, being smashed against walls, threats of rape and sleep deprivation.
The International Red Cross described the conditions as inducing “severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information”.
Human rights groups have also criticised the Guantánamo tribunals because the military gets to hand pick the judge and jury, which is made up of men and women serving in the forces fighting al-Qaida. The prosecution has considerable control over defence lawyers’ access to evidence and ability to subpoena witnesses.
Davis said the trials will be discredited in the eyes of much of the world.
“My greatest concern is that we give a stamp of approval to this second rate process that in the future, if the shoe’s ever on the other foot, if an American GI or citizen are being prosecuted in a second rate procedure somewhere else around the world, we’ve given up the moral argument that it’s inadequate,” he said.
“In January, you had an American citizen, Amir Hekmati, convicted in an Iranian court and sentenced to death. Victoria Nuland of our state department in a press conference condemned the conviction and said the procedure was not the same as Iranian citizens get, there was secret proceeding, there was coerced evidence, there was inadequate defence. I’m listening to her talking and I’m thinking that sounds an awful lot like the military commissions in Guantánamo. I think we really give up the right to object when other people do what we’re doing.”
Lawyers for the defendants are sceptical
The trial faces a barrage of criticism from other quarters. Kenneth Roth, the director of Human Rights Watch, said it will not have credibility.
“The victims of the horrific 9/11 attacks deserve justice, but using a tribunal that allows coerced evidence will never be seen as fair,” he said. “By doing so, President Obama has both compromised prospects for a credible trial and undermined inquiry into Bush-era interrogation practices. That is a gift to terrorist recruiters and a danger to US security.”
The US administration has defended the reconfigured military commissions by saying they are much more open than before, including now permitting the defendants to have civilian lawyers. The new rules also offer protections against self-incrimination, ex post facto laws, double jeopardy and introduce a right of appeal.
The chief military prosecutor, Brigadier General Mark Martins, urged critics to give the tribunal a chance.
“If observers will withhold judgment for a time the system they see will prove itself deserving of public confidence,” he said at Harvard law school last month.
But some of the lawyers for the defendants are sceptical.
“You can take a $5 mule and put a $10,000 saddle on it and call it reformed,” said Commander Walter Ruiz, a military lawyer for al-Hawsawi. “You still have a $5 mule. It just has a fancy saddle.”
‘We’ve screwed this process up for so long’
Davis was chief military prosecutor when Mohammed arrived at Guantánamo in 2006.
“He’s such an arrogant guy that we joked about charging his co-accused as capital cases eligible for the death penalty but not him. We thought it would aggravate the hell out of him that we thought somebody was more important than he was. It would really offend him that somebody else got the death penalty and he didn’t, they were a bigger player than him,” he said.
“That’s what he wants. He wants to be a martyr. His trial is his last chance to stand up and address the world, and then he wants to be executed and be a martyr. My view is why give him what he wants? His view of hell would be a long and healthy life spent being totally irrelevant.”
But a year later, Davis said he turned against the military commissions because he was being pressured to use evidence obtained through torture.
“For nearly two years I was the leading advocate for military commissions and for Guantánamo. I honestly believed that we were committed to having full fair and open trials,” he said.
Davis said that it was originally agreed that no statements tainted by torture would be used but that changes among more senior officers led to a shift in policy.
“My immediate boss who came in in the summer of ’07 said: President Bush said we don’t torture, so if the president says we don’t torture who are you to say we do? We’ve got all this information we collected using these techniques so you need to use it,” he said.
“It’s really ironic. When KSM was arraigned in 2008, he said he wanted to plead guilty, he wanted to stand up and tell what he did, and he wanted to be executed and be a martyr for the cause. Then you’ve got the prosecution who want to convict him for what he did, establish what he did, and then execute him for what he did. The two sides are in agreement about what they want to do. It’s how do you get there? We’ve screwed this process up for so long that I just don’t think there’s any way to rehabilitate the evidence of a military commission where the world’s going to look at it and say that’s a credible and fair process.”
ACLU Leader Calls Guantánamo Hearing “Déjà vu All Over Again”
May 5, 2012 ACLU.org
Executive Director Anthony Romero Criticizes Military Commissions for Providing Second-Tier Justice in 9/11 Cases
FOR IMMEDIATE RELEASE CONTACT: (212) 549-2666; email@example.com
GUANTÁNAMO BAY, CUBA – The chaos surrounding the arraignment today of five accused conspirators in the 9/11 attacks highlights the failure in connection with the 9/11 attacks highlights the many shortcomings of the military commission system, said American Civil Liberties Union Executive Director Anthony Romero.
Romero, who is attending the arraignments at Guantánamo Bay said:
“It is déjà vu all over again at the substandard Guantánamo commissions, where the failures and challenges of the original 9/11 cases now plague their latest incarnation. Once again, the consequences of the defendants’ torture and the conditions of their secret confinement loom over the proceedings even when the court does not permit them to be discussed.
“Predictably, the government’s interference with the attorney-client relationship and its failure to provide adequate resources to the defense team undermine the system. The American public deserves to see the most important terrorism trials of our time prosecuted in legitimate federal courts capable of providing open, adequately resourced, and fair trials, instead of a commission system deliberately created to provide second-tier justice.”
[RELATED: Orwell Comes to the Guantánamo Tribunal , by Steve Gosset, ACLU, May 3, 2012.]