RRESIDENT: You may examine documents or statements offered into evidence other than classified information. However, certain documents may be partially masked for security reasons.
RRESIDENT: Khalid Sheikh Muhammad, do you understand this process?
DETAINEE: Yes. If I have question can I ask you?
RRESIDENT: Yes, you may.
DETAINEE: About the testimony which I ask about the witnesses.
RRESIDENT: Yes, I’m going to address the witnesses shortly. So, if you will bear with us I will take that up in a few moments.
DETAINEE: Okay.
RRESIDENT: Do you have any questions concerning the Tribunal process?
DETAINEE: Okay by me.
Presentation of Unclassified Information
RRESIDENT: Personal Representative, please provide the Tribunal with the Detainee Election Form.
PPERSONAL REPRESENTATIVE: I am handing the Tribunal the Detainee Election Form, which was previously marked as Exhibit D.
RRESIDENT: All right, the Tribunal has received Exhibit D-a that indicates the Detainee wants to participate in the Tribunal and wants the assistance of the Personal Representative.
Recorder Presents Unclassified Information
RRESIDENT: Recorder, please provide the Tribunal with the unclassified evidence.
RECORDER: I am handing the Tribunal what has previously been marked as Exhibit R, the unclassified summary of the evidence that relates to this Detainee’s status as an enemy combatant. A translated copy of this exhibit was provided to the Personal Representative in advance of this hearing for presentation to the Detainee. In addition, I am handing to the Tribunal the following unclassified exhibits, marked as Exhibit R-2. Copies of these Exhibits have previously been provided to the Personal Representative. [Documents presented to Tribunal]
RRESIDENT: Recorder, please read the unclassified summary of evidence for the record. But before you proceed, Khalid Sheikh Muhammad, let me remind you that you must not comment on this evidence at this time. You will be provided with an opportunity shortly to provide any comments that you would like. Recorder, please proceed.
RECORDER: The following facts support the determination that the Detainee is an enemy combatant:
Paragraph a. On the morning of 11 September 2001, four airliners traveling over the United States were hijacked. The flights hijacked were: American Airlines Flight 11, United Airlines Flight 175, American Airlines Flight 77, and United Airlines Flight 93. At approximately 8:46 a.m., American Airlines Flight 11 crashed into the North Tower of the World Trade Center, resulting in the collapse of the tower at approximately 10:25 a.m. At approximately 9:05 a.m., United Airlines Flight 175 crashed into the South Tower of the World Trade Center, resulting in the collapse of the tower at approximately 9:55 a.m. At approximately 9:37 a.m., American Airlines Flight 77 crashed into the southwest side of the Pentagon in Arlington, Virginia. At approximately 10:03 a.m., United Airlines Flight 93 crashed in Stoney Creek Township, Pennsylvania. These crashes and subsequent damage to the World Trade Center and the Pentagon resulted in the deaths of 2,972 persons in New York, Virginia, and Pennsylvania.
Paragraph b. The Detainee served as the head of the al Qaida military committee and was Usama bin Laden’s principal al Qaida operative who directed the 11 September 2001 attacks in the United States.
Paragraph c. In an interview with an al Jazeera reporter in June 2002, the Detainee stated he was the head of the al Qaida military committee.
Paragraph d. A computer hard drive seized during the capture of the Detainee contained information about the four airplanes hijacked on 11 September 2001 including code names, airline company, flight number, target, pilot name and background information, and names of the hijackers.
Paragraph e. A computer hard drive seized during the capture of the Detainee contained photographs of 19 individuals identified as the 11 September 2001 hijackers.
Paragraph f. A computer hard drive seized during the capture of the Detainee contained a document that listed the pilot license fees for Mohammad Atta and biographies for some of the 11 September 2001 hijackers.
Paragraph g. A computer hard drive seized during the capture of the Detainee contained images of passports and an image of Mohammad Atta.
Paragraph h. A computer hard drive seized during the capture of the Detainee contained transcripts of chat sessions belonging to at least one of the 11 September 2001 hijackers.
Paragraph i. The Detainee directed an individual to travel to the United States to case targets for a second wave of attacks.
Paragraph j. A computer hard drive seized during the capture of the Detainee contained three letters from Usama bin Laden.
Paragraph k. A computer hard drive seized during the capture of the Detainee contained spreadsheets that describe money assistance to families of known al Qaida members.
Paragraph l. The Detainee’s name was on a list in a computer seized in connection with a threat to United States airlines, United States embassies, and the Pope.
Paragraph m. The Detainee wrote the Bojinka plot, the airline bomb plot which was later found on his nephew Ramzi Yousef’s computer.
Paragraph n. The Bojinka plot is also known as the Manila air investigation.
Paragraph o. The Manila air investigation uncovered the Detainee conspired with others to plant explosive devices aboard American jetliners while those aircraft were scheduled to be airborne and loaded with passengers on their way to the United States.
Paragraph p. The Detainee was in charge of and funded an attack against United States military vessels heading to the port of Djibouti.
Paragraph q. A computer hard drive seized during the capture of the Detainee contained a letter to the United Arab Emirates threatening attack if their government continued to help the United States.
Paragraph r. During the capture of the Detainee, information used exclusively by al Qaida operational managers to communicate with operatives was found.
Paragraph s. The Detainee received funds from Kuwaiti-based Islamic extremist groups and delivered the funds to al Qaida members.
Paragraph t. A computer hard drive seized during the capture of the Detainee contained a document that summarized operational procedures and training requirements of an al Qaida cell.
Paragraph u. A computer hard drive seized during the capture of the Detainee contained a list of killed and wounded al Qaida martyrs.
And lastly, Paragraph v. Passport photographs of al Qaida operatives were seized during the capture of the Detainee.
RECORDER: Sir, this concludes the summary of unclassified evidence.
RRESIDENT: Very well.
RRESIDENT: Personal Representative, does the Detainee have any evidence to present to this Tribunal?
PPERSONAL REPRESENTATIVE: Yes, sir. I am handing to the Tribunal the following unclassified exhibits marked as Exhibits D-b through D-d. Copies of these exhibits have been previously provided to the Recorder. [Documents presented to Tribunal]
RRESIDENT: Exhibit D-b appears to be a statement that the Detainee has provided.
PPERSONAL REPRESENTATIVE: Yes, sir.
PRESIDENT: All right. And Exhibit D-c contains handwritten notes that appear to be Arabic and English as well as the typed version of that. Is that correct?
PPERSONAL REPRESENTATIVE: Yes, sir.
RRESIDENT: All right. And D-d is a written statement regarding alleged abuse or treatment that the Detainee received.
PPERSONAL REPRESENTATIVE: Yes, sir.
RRESIDENT: All right. We will go into those shortly.
RRESIDENT: Khalid Sheikh Muhammad, you may now make an oral statement to the Tribunal, and you have the assistance of your Personal Representative in doing so. Do you wish to make an oral statement to this Tribunal?
DETAINEE: He will start, the Personal Representative; PR will read then later I will comment.
RRESIDENT: Very well, you may proceed.
RECORDER: Sir, would you hold one moment?
RRES
IDENT: Yes.
RECORDER: Ah, before the Detainee makes a statement, ah, I’d like to ah.
RRESIDENT: Question of the oath?
RECORDER: Ah, no sir.
RECORDER: Concerning classified evidence.
RRESIDENT: Very well.
RRESIDENT: Do you have any further evidence to present at this time, Recorder?
RECORDER: Mr. President, I have no further unclassified evidence for the Tribunal but I respectfully request a closed Tribunal session at an appropriate time to present classified evidence relevant to this Detainee’s status as an enemy combatant.
RRESIDENT: Very well, your request for a closed session is granted and will be taken up in due course.
RRESIDENT: You may proceed, PR.
PPERSONAL REPRESENTATIVE: The Detainee responds to the unclassified summary of evidence with the following key points.
PPERSONAL REPRESENTATIVE: “Some paragraphs under paragraph number 3, lead sentence are not related to the context or meaning of the aforementioned lead sentence. For example, paragraph 3-a is only information from news or a historical account of events on 11 September 2001, and note with no specific linkage being made in this paragraph to me or the definition of Enemy Combatant. As another example, subparagraph 3-n makes no linkage to me or to the definition of Enemy Combatant.”
DETAINEE: Are they following along?
PPERSONAL REPRESENTATIVE: Ah, they have that in front of them for reference.
RRESIDENT: Yes.
DETAINEE: Okay.
PPERSONAL REPRESENTATIVE: Second main point: “There are two false statements in the Summary of Evidence. Subparagraph 3-c is false. I never stated to the Al Jazeera reporter that I was the head of the al Qaida military committee. Also, Subparagraph 3-s is false. I did not receive any funds from Kuwait.”
PPERSONAL REPRESENTATIVE: Point number 3: “There is an unfair ‘stacking of evidence’ in the way the Summary of Evidence is structured. In other words, there are several subparagraphs under parent-paragraph 3 which should be combined into one subparagraph to avoid creating the false perception that there are more allegations or statements against me specifically than there actually are. For example, subparagraphs 3-m through 3-o, which pertain to the Bojinka plot should be combined into one paragraph, as should paragraphs 3-a through 3-h, which pertain to 9/11.”
PPERSONAL REPRESENTATIVE: Lastly, my name is misspelled in the Summary of Evidence. It should be S-h-a-i-k-h or S-h-e-i-k-h, but not S-h-a-y-k-h, as it is in the subject line.
RRESIDENT: Would you like to add anything to that, Khalid Sheikh Muhammad?
PPERSONAL REPRESENTATIVE: Final statement.
DETAINEE: No, I just want to ask about witnesses.
PRESIDENT: Okay, ah, let’s finish with these then I will get to the witnesses.
DETAINEE: Okay.
RRESIDENT: Try to keep it in order.
RRESIDENT: You want to continue, PR? Do you have another statement?
PPERSONAL REPRESENTATIVE: That concludes this Detainee’s response to the, ah, unclassified summary of evidence, sir.
RRESIDENT: Oh.
Calling of Witness
RRESIDENT: We will now allow for the calling of witnesses. All witnesses called before this Tribunal may be questioned by the Detainee if present, the Personal Representative, the Recorder, and the Tribunal Members.
RRESIDENT: Does the Recorder have any witnesses to present?
RECORDER: No, sir.
RRESIDENT: All right.
RRESIDENT: From the Detainee Election Form and I was informed earlier that the Detainee requested the presence of two witnesses to testify here today. Ramzi bin al-Shibh and Mustafa Hawsawi. The Detainee believes the witnesses can provide testimony related to the Detainee’s actions specified in the unclassified summary of the evidence.
RRESIDENT: I have had the opportunity to review the request for witnesses and I have made some findings and I’m going to place them on the record now and when I conclude that, Khalid Sheikh Muhammad, you may respond to that if you’d like.
RRESIDENT: First the request for Ramzi bin al-Shibh, the proffer of the testimony from the Detainee was that Ramzi is alleged to have been present during the al Jazeera interview in June 2002 during which it is said the Detainee claimed to be head of al Qaida Military Committee. The Detainee claims he never stated that, to be the head of the Military Committee, during the Interview and states that Ramzi, if called, can confirm this.
RRESIDENT: This witness is not relevant in the President’s view for the following reasons. In the totality of the circumstances and given the nature and quality of the other unclassified evidence, the Detainee’s alleged statements as reported in al Jazeera are of limited value and negligible relevancy to the issue of combatant status. As such, any corroboration or contradiction by the proffered witness is not relevant. The creditability determinations with regard to R-2, which is the al Jazeera article, can be made by the Tribunal without the proffered testimony. As such, the Detainee’s request for the production of that witness is denied.
RRESIDENT: As to the request for Mustafa Hawsawi, ah, it is proffered that Hawsawi, if called, could testify that the computer/hard drive referenced in the unclassified summary was not this Detainee’s property and that the place of the Detainee’s capture was not the house of the Detainee. In the President’s view this testimony is not relevant to the issues regarding the Detainee’s capture or his combatant status for the following reasons.
RRESIDENT: Whether the Detainee had actual legal title or ownership of the computer/hard drive or the house where the capture took place is irrelevant to the determination of the Detainee’s status as an enemy combatant. Based on the proffer, if true, Hawsawi’s testimony will not provide relevant information. The issue of ownership, while of some interest, is not relevant to status. What is relevant is possession, usage, connection, and presence. Hawsawi’s testimony will not speak to any relevant information in regard to such points. As such, the request for the production of that witness is denied.
RRESIDENT: If you would like to respond to that, I’ll hear you.
DETAINEE: Most of these facts which be written are related to this hard drive. And more than eleven of these facts are related to this computer. Other things are which is very old even nobody can bring any witnesses for that as you written here if it will be ah a value for you for the witness nearby you will do it. This computer is not for me. Is for Hawsawi himself. So I’m saying I need Hawsawi because me and him we both been arrested day. Same way. So this computer is from him long time. And also the problem we are not in court and we are not judge and he is not my lawyer but the procedure has been written reported and the way has mostly as certain charged against me; tell him, [Arabic phrase].
TRANSLATOR: [Translating] They are only accusations.
DETAINEE: So accusations. And the accusations, they are as you put for yourself ah definition for enemy combatant there are also many definitions for that accusation of fact or charges that has been written for any ah. [Arabic phrase]
TRANSLATOR: [Translating] Person is accused.
DETAINEE: So, if I been accused then if you want to put facts against me also the definition for these facts. If you now read number N now what is written the Bojinka plot. Is known many lead investigation it is not related to anything facts to be against me. So when I said computer hard drive/ hard disk, same thing. All these point only one witness he can say yes or not cause he is this computer is under his possession him computer. And also specifically if he said Mohammed Atta picture been this hard drive. I don’t think this should accepted. There are many 100 thousand Americans who have a lot of picture on their computer. You cannot say I find Mohammed Atta on your computer then you use this fact against you. Or you find any files in your computer to be what about it’s mine, it’s not my computer. If this witness, he will state that this known and here that has been ninety percent of what is written is wrong. And for Ramzi, for reporter in Jazeera, he claimed that I state thi
s one and you know the media man. How they are fashionable. What they mean in their own way in a whole different way. They just wrote it so he say I state. But I never stated and I don’t have any witnesses and witness are available here at Guantánamo. He is Detainee. He was with me. Which he been mostly in all my interview with him. Me and them, there was three person, me and Ramzi and this reporter. So if you not believe me, not believe him, believe my witness Ramzi. Then he’s what he state the reporter most is false. I not denying that I’m not an enemy combatant about this war but I’m denying the report. It not being written in the proper way. Which is really facts and mostly just being gathered many information. General information that form in way of doing, to use in facts against me.
RRESIDENT: I have heard and understood your argument. In order for me to make my determinations regarding the production of witnesses I first have to believe that they are relevant for the reasons that I have stated. For the reasons I have stated, I do not believe they are relevant. Whether or not they may be available here on Guantanámo, is a second decision to be made, but only if I decide they are relevant. I have heard your arguments. I noted them. However, my ruling stands.
RRESIDENT: The Recorder has no witnesses, is that my understanding?
RECORDER: No, sir.
RRESIDENT: And there are no other approved witnesses to take up. Ah, we will take a brief moment to review the unclassified evidence that we received so far and then we will pick back up in the proceeding.
MEMBER: If I might ask a question real quick of the PR. This is the entire translation of the handwritten notes?
PPERSONAL REPRESENTATIVE: Yeah. The handwritten notes are the Detainee is on yellow.
MEMBER: Yes.
PPERSONAL REPRESENTATIVE: And, then the next set of notes, handwritten notes, are the Linguist’s translation and then the final hard copy printed that’s, ah, that…
MEMBER: Typewritten.
PPERSONAL REPRESENTATIVE: Typed from Linguist’s notes.
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