On Monday pre-trial hearings resumed in Guantánamo Bay, Cuba, for five men accused of helping coordinate the Sept. 11, 2001, attacks. At their arraignment on May 5, the defendants, in what defense attorney James G. Connell III characterized as “peaceful resistance to an unjust system,” refused to talk to the judge, Army Col. James L. Pohl. Today the defendants’ behavior was noticeably different. They were calm and relaxed and fully cooperative with the courtroom proceedings. In the morning session Judge Pohl engaged Ramzi Bin al Shibh and Mustafa Ahmad al-Hawsawi in a series of questions about their right to conflict-free representation, to which the men listened carefully and responded respectfully. In Mr. al Hawsawi’s first response to the judge, he began, “In the name of Allah, most compassionate and merciful, yes I do” understand my rights my rights to counsel. At the first break Mr. al Hawsawi moved his chair aside, laid down a mat and laid prostrate in prayer.
I had an opportunity to attend the afternoon session, which required a military escort to the maximum-security court building. As we passed through several security checkpoints, we had to display our passports and media badges. We were allowed to bring legal pads, but nothing with spiral binding. Pens would be provided in the media gallery.
On the left side of the courtroom the defendants and their attorneys occupy the front five tables. To the defendants’ immediate left, about 20 uniformed military personnel sit in chairs along the wall. On the right side of the room there is an empty jury box. During the trial it will be occupied by at least twelve “members” who are commissioned military officers. The members will decide whether the accused is guilty, and if so, what the punishment should be. This particular trial is a capital case; if found guilty, all five defendants could be executed.
Sound-proof glass separates the back viewing area from the rest of the courtroom. There are four rows of chairs. On one side sit members of the press and representatives of non-governmental organizations. On the right side there are family members of 9/11 victims holding photos of their loved ones. When we arrived there was already one defendant seated, and the back room was filled with chatter as onlookers discussed the morning session. Then silence fell upon the room. I looked up and saw Khalid Sheikh Mohammed, the self-professed mastermind of 9/11, being escorted into the courtroom by two military personnel. He wore a white tunic and trousers, black vest and white turban. But his long, bushy, henna-dyed red beard attracted the most attention. I sat directly behind the line of defendants. Whenever one of them turned around to talk to another, I was in his direct line of sight.
We were able to observe all of the courtroom activities, but our audio feed was on a 40-second delay so that classified information could be muted. I recall several memorable moments from the afternoon session:
- The first motion considered whether the defendants could waive their right to be present on any given day of the proceedings. Air Force Capt. Michael Schwartz, an attorney for Walid bin Attash, forcefully argued that “we have to talk about torture” as a special circumstance of the matter, since the “physical and emotional strain is relevant to the decision of whether they are going to come to court.” The judge, however, answered plainly, “No we don’t.” Despite no fewer than 18 separate redirections by the judge – at one point Judge Pohl said, “Either sit down or move on to something else. Those are your two choices” – Capt. Schwartz continued to argue his point.
- By law Judge Pohl was required to ask each defendant, “Do you also understand that if for some reason you are no longer in the detention facility, for whatever reason, this trial can continue in your absence up to and including the sentence in the case?” Upon hearing this, the first defendant was left speechless. Another asked the judge to be more concrete. So the judge offered this hypothetical, “I am not saying this is going to happen, but, for example, if you were to somehow…escape from Guantánamo Bay and get out of U.S. military control…this trial can continue without you being here.” It was a preposterous notion, of course. Ammar al Baluchi responded with humor: if this happens, “I will make sure to leave them notes.”
- Courtroom observers were surprised by the cooperative nature of the defendants. As I sat in the courtroom, I wondered what had happened to the defendants’ “peaceful resistance to an unjust system" from their May appearance. Had they conceded the larger questions of justice (like whether they should be tried in federal court)? Or had they simply grown weary of voicing their dissent? Just moments later the judge asked Mr. Mohammed whether he understood that waiving his right to appear might negatively affect the presentation of his defense. Mr. Mohammed responded, “Yes. Yes. But I don’t think there is any justice in this court.” In the evening press conference, David Nevin, an attorney for Mr. Mohammed, unequivocally supported his client’s statement. Citing numerous examples Mr. Nevin characterized the military commissions as not fair, not just and not transparent. “Instead it is a court designed to achieve a conviction.”
As procedural matters are litigated in the motion hearings, more fundamental questions are left at the wayside. I keep asking myself, “Why am I in Cuba for this trial?” If the “due process” of the military commissions parallels the due process of federal courts, as the chief prosecutor consistently argues, then why are we relying on this alternative legal framework?
Tuesday I will be in the courtroom again for another full day of hearings.
Luke Hansen, S.J.