KSM himself seemed to have two goals: To maximize each public hearing for its propaganda value and to drag out the process enough to punish President Bush and other American officials. Perhaps he sensed that he might get a better deal from the next president of the United States.
Surprisingly, KSM would be aided by an odd alliance of former Clinton officials, liberal activists, and camera-chasing lawyers.
Clinton’s former attorney general, Janet Reno, agreed to headline fundraising efforts for the American Civil Liberties Union, a liberal Washington-based individual-rights group that has been at the center of legal fights over political issues for more than fifty years. In April 2008, the ACLU announced that it had raised a war chest of $8.5 million to provide a free legal-defense team for the more than three hundred detainees held at Guantánamo. While each of the detainees who had been formally charged, including KSM, already had military lawyers to provide a free legal defense for them, the ACLU was funding civilian lawyers who would attempt to bring legal claims on behalf of detainees in civilian courts and to provide research and support for military-defense lawyers. The ACLU’s fund went to cover legal research costs and to defray the travel expenses of attorneys shuttling between the American mainland and the American base in Cuba.
The ACLU had allied itself with the National Association of Criminal Defense Lawyers and a clutch of U.S. military lawyers.
ACLU Executive Director Anthony Romero said his organization was interested in defending KSM because “he appears to be the government’s top priority in this prosecution. And whether or not they are able to convict Khalid Shaikh Mohammed under these rules may well determine the fates of the almost three hundred other men who are detained at Guantánamo.”33 In other words, the ACLU saw its legal effort as stymieing the government’s case against the confessed 9/11 mastermind and upending the Bush administration’s efforts to try captured terrorists in military courts.
The ACLU called its legal-defense team “the John Adams Project.” Adams, as a Boston attorney, had defended eight British soldiers accused of killing colonists in the so-called Boston Massacre of 1770. (Of course, the men Adams defended were innocent and six were acquitted. The other two received minor sentences, having a brand placed on their thumbs.)
Another lawyer waiting in the wings was Jennifer Daskal of Human Rights Watch. She, too, believed in a vigorous defense of KSM. She told the press: “The only way to protect the system from being a complete sham is to make sure that they have a good defense.”34 She would later play a key role making detainee policy in the Obama Justice Department.
While the ACLU and Human Rights Watch talked about putting on a strong defense, KSM was thinking about putting on a good show.
On June 5, 2008, KSM and four co-defendants—Ramzi bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali, and Mustafa Ahmed al-Hawsawi—were brought before the military tribunal in Guantánamo.
It was supposed to be a simple arraignment—a hearing in which the defendants would plead guilty or not guilty and various procedural issues would be decided. Instead it was a circus.
When Judge Ralph Kohlmann asked KSM whether he agreed to be represented by the lawyers present, KSM objected. Because he recognized only Sharia law, he would not have any lawyer who would invoke any other legal code. Instead he wanted to represent himself—much as he had in Greensboro, North Carolina, in 1985.
It was the first time the public had a look at KSM since his 2003 capture. He appeared very different than the furry fat man in bedclothes. In his years in captivity, he had grown a long gray beard, which was brushed straight for his moment in court. He looked visibly older and thinner and wore military-issue eyeglasses. He had carefully cultivated his appearance; it was as if he were an extra from Lawrence of Arabia rather than a globetrotting twentieth-century terrorist. He wanted to appeal to viewers of the Arab television networks, which were in Guantánamo alongside their American counterparts.
When Judge Kohlmann warned him that he faced execution if convicted, KSM couldn’t have been happier: “Yes, that is what I wish. I wish to be martyred. I will, God willing, have this, by you.”35
KSM immediately made the claim that he had been tortured, knowing full well that that would touch off a media feeding frenzy. “All of this has been taken under torturing,” he said. “You know this very well.”36
What this claim completely ignores is that KSM confessed again to the “clean team” in September 2006—and those confessions had been extracted without any coercion at all, let alone torture.
KSM’s nephew Ali Abdul Aziz Ali spoke for the other defendants in declining legal assistance, saying, “The government is talking about lawyers free of charge. The government also tortured me free of charge all these years.”
When Judge Kohlmann advised him that representing themselves was unwise, Ali shot back, “For me, this proceeding in its entirety is unwise.”37
Only one of the five defendants, Mustafa Ahmed al-Hawsawi, had agreed to work with his military defense team. Yet when Hawsawi entered the courtroom, KSM heckled him, joined by bin al-Shibh, saying, “What, are you in the American army now?”
Hawsawi’s lawyer, Major Jon Jackson, said his client changed his mind on the spot, telling the judge, “I want to defend myself, by myself.”38
KSM and his co-defendants were clearly having a great time on the first day of their trial. Though the judge tried to keep the proceedings moving, KSM and his lawyers created constant distractions and delays. ACLU lawyers asked for time to talk to the defendants to persuade them they needed legal representation. KSM sang verses from the Koran, mocked the Arabic skills of the tribunal’s interpreter, denounced “evil laws” in America about gay marriage and American law in general, saying it was “not the laws of God.” He called the hearing “Inquisition Land.”
KSM even demanded to see the courtroom sketch of him, claiming that the Geneva Conventions gave him the right to approve any images of himself before they were made public. Ultimately, he rejected the sketch because he didn’t like how the artist had drawn his nose.39
KSM couldn’t help smirking throughout the proceedings and was often seen chatting with his four co-defendants. The trial was likely the first time since 2003 that KSM had seen Ramzi bin al-Shibh, who’d served as a liaison between KSM and the 9/11 hijackers. It was also likely that this was the first time he had seen Walid bin Attash.
Through a soundproof window, some sixty journalists watched KSM and his co-defendants having a good time. The journalists and human-rights observers in the gallery occasionally laughed at KSM’s antics,40 yet reported his wild allegations in a neutral tone, as if the 9/11 mastermind had as much credibility as the president of the United States. These objective observers couldn’t possibly say who was right and who was wrong.
The 9/11 families, who were seated alongside the journalists, were far from amused by KSM or the shameful behavior of the press.
When it came his turn to make mischief, Walid bin Attash asked Judge Kohlmann, “Will we be buried at Guantánamo or will our bodies be returned to our countries?” No one bothered to point out that Al Qaeda had done nothing to help return the bodies of victims of the 9/11 attacks to the 108 countries (besides the United States) that they’d come from. Doubtless, Judge Kohlmann thought that pointing this out would raise questions about his impartiality.
The circus atmosphere continued when the judge turned his attention to Ramzi bin al-Shibh and advised him that execution was a likely outcome of a guilty verdict. Bin al-Shibh said he had wanted to pilot one of the 9/11 planes, adding, “I have been seeking martyrdom for five years! If this martyrdom happens today, I will welcome it.”
He began to shout, “God is great! God is great! God is great!”41
The trial date was set months in the future in order to give the judge time to consider the various procedural motions raised by the accused and their civilian lawyers.
Shortly after, as KSM preened before cameras in Guantánamo and mocked his
own trial, Eric Holder climbed onto a hotel podium. He was there to address the American Constitution Society, the liberal lawyers’ alternative to the Federalist Society. In a wide-ranging speech, he dismissed the idea that there was a need to balance the rights of detainees against the right of the public to know about future terrorist plots. Instead, the future U.S. attorney general contended that providing increased rights and protections for the detainees would lead to increased safety for the American public. He criticized some of the measures that the Bush administration had taken as “excessive and unlawful.” He added: “We owe the American people a reckoning.”42
Apparently, Holder did not see any problem with KSM’s media circus in Guantánamo. KSM had taken an arraignment, which usually takes minutes in civilian courts, and made it last hours. Yet there was nothing in Holder’s speech to indicate that he had revised his view at all. He had his mind made up, and new evidence wasn’t going to sway him.
Following his arraignment, KSM began to prepare for his upcoming trial. Prosecutors had pushed for a September 2008 court date,43 but KSM and human-rights lawyers did everything they could to delay its start.
KSM’s strategy turned on accusing the judge of “bias,” based on his military record.
Ultimately, a new military judge would be appointed.
With the help of ACLU-supported counsel, KSM made a number of other pretrial requests. These requests provided Judge Ralph Kohlmann with a real-world test of Eric Holder’s idealism. KSM argued that he and other detainees were entitled to computer laptops to prepare for their own defense and at least twelve hours per day of battery power. He also demanded the right to access the Internet, a request that was denied on security grounds.44
Colonel Stephen Henley was the next judge to face KSM. When the December 8, 2008, hearing was called to order, Judge Henley read aloud a letter he had received from KSM. In the letter, KSM said he wanted to plead guilty. Henley accepted KSM’s guilty plea. Next he ruled on a motion from defense attorneys, which contended that two of the defendants were not mentally competent to stand trial. When Henley ordered mental-competency hearings, as the procedure required, KSM objected. He wanted to withdraw his guilty plea until all defendants could plead together. The smirking mastermind had sprung his legal trap.
But KSM’s antics did not stop there. KSM complained about the slow responses to his written requests. Then he dismissed his military lawyer, who was simply serving as a legal adviser, as KSM was still representing himself. Nevertheless, KSM said he could not abide the military lawyer, because he had served in Iraq and had therefore “killed Muslims.” Of course, KSM himself was responsible for the deaths of hundreds of Muslims during his time in Al Qaeda, from the 1998 embassy bombings to the Bali bombings in 2002. Again, in the interest of impartiality, no one bothered to point this out.
For Maureen Santora, it was supposed to be the day on which she, at last, got justice for the loss of her son, New York City firefighter Christopher Santora. She had received special permission from the U.S. Department of Defense to travel to Guantánamo to watch the trial.
With President Obama’s inauguration looming, both civilian lawyers and military prosecutors were seeking to slow down the military commission trying KSM and four other defendants—putting them at odds with the families of 9/11 victims.
Family members became increasingly irate that the military commissions might stop in the middle of the trial. “Though the wheels are grinding, they are turning here and this place must remain open and justice must be served,” Andrew Arias told the Associated Press. Arias’s brother Adam had been killed in the 9/11 attacks.45
The 9/11 families were shocked that the military prosecution team would be the ones seeking to delay the proceeding. But that is what happened.
Colonel Steven Henley said he would rule on the prosecution’s motion to suspend the proceedings after seeking guidance from the chain of command—meaning Defense Secretary Robert Gates and ultimately the president of the United States.
KSM himself did not want the trial to be halted. “We should continue so we don’t go backward,” he told the judge.46
The Obama administration didn’t agree.
They didn’t just go backward; they went round and round.
On his first day in office, President Obama signed Executive Order 13491, which immediately halted all military commissions—including the trial of KSM.
In fact, it seemed as if President Obama and Eric Holder, his nominee for the post of attorney general, were more interested in prosecuting the CIA officials who had interrogated KSM than in prosecuting KSM for the murder of three thousand Americans.
During Holder’s Senate confirmation hearings, several senators sought reassurance from him that he wouldn’t prosecute CIA officials for doing their duty. Holder danced. Senator Orrin Hatch asked Holder directly whether he would honor the certifications of his predecessor protecting CIA officers from any liability resulting from terror interrogations.
HATCH: OK. So, if confirmed as attorney general, you will honor the certifications by Attorney General Mukasey?
HOLDER: Yes, I believe that we would. Obviously, we have to look at if there are changed circumstances, if there is some basis to change that determination. But in the absence of that, I don’t think we would.
HATCH: Well, thank you. There have been numerous calls for prosecution of various individuals, ranging from the vice president to attorneys at the Office of Legal Counsel, for their support or approval of the Terrorist Surveillance Program and the CIA’s interrogation and detention program. Now, if confirmed as the attorney general, do you intend to undertake, order or support a criminal investigation of those individuals, including those individuals at the Office of Legal Counsel, who were involved in drafting legal opinions on these matters? Or are you willing to acknowledge that there can be differences of opinion, but they acted in accordance with their best good faith efforts under the circumstances at the time?
HOLDER: Well, senator, no one is above the law. And . . .
HATCH: I’ll agree with that.
HOLDER: We will follow the evidence, the facts, the law, and let that take us where it should. But I think President-elect Obama has said it well. We don’t want to criminalize policy differences that might exist between the outgoing administration and the administration that is about to take over. We certainly don’t want to do that.
HATCH: But would you consider these policy differences, or policy decisions?
HOLDER: Well, one of the things I think I’m going to have to do is to become more familiar with what happened that led to the implementation of these policies. I’ve not been read into a variety of things that I will be exposed to, should I become attorney general. And that would, I think, better inform any decision that I would make in that regard.
HATCH: OK.47
Privately, Holder was more directly reassuring to concerned senators. In closed-door meetings in Senate offices, several senators had asked Holder about investigating CIA interrogators and prosecuting them for their use of “enhanced interrogation techniques.” Holder specifically promised the senators that he would not mount investigations and pledged that there would be no prosecutions.48
Holder’s actions belied his promises. Shortly after he was confirmed as attorney general, Holder set the wheels in motion for prosecuting CIA officials. Holder recounted to Newsweek how he’d spent weeks reviewing reports from the interrogations of detainees at CIA “black sites” and said it “turned my stomach.” He became certain that the public would support investigating the CIA if they knew what he knew.
He pushed for President Obama to release a series of secret memos outlining Bush-era interrogation policies.49
Meanwhile, Holder pursued civilian trials for the detainees, including KSM. But preparing for civilian trials proved to be a bureaucratic nightmare. Amy Jeffress, Attorney General Holder’s national security adviser, announced the establishment of three different task forces to review the cases o
f KSM and other detainees. It appeared as if the Bush administration had done nothing to prepare the cases for civilian trials, Jeffress complained. “There was no file for each detainee,” she told The New Yorker’s Jane Mayer. “The information was scattered all over the government. You’d look at what the Department of Defense had, and it was something, but, as a prosecutor, it wasn’t what you would like to see as evidence.” The Bush administration “hadn’t planned on prosecuting anyone. Instead, it was ‘let’s take a shortcut and put them in Guantánamo.’”50
Obama administration officials, including Jeffress, refused to consider the possibility that the Bush administration had honestly weighed the benefits and costs of civilian terror trials and concluded that they were unworkable and, in good faith, had gone with military commissions. Instead Jeffress and others presumed that their predecessors had simply made a blind ideological choice. But now that they themselves had to make an evaluation of the merits of civilian trials, the practical difficulties were slowly beginning to emerge.
Some Obama administration officials hoped to avoid the difficulty of choosing between military commissions and civilian trials by transferring the Guantánamo detainees to other countries. But this, too, proved to be far more difficult than officials initially anticipated. Few countries wanted to take the detainees without receiving something in return.
The Maldives agreed to take a handful of detainees in exchange for millions of dollars of aid from the International Monetary Fund. Yemen refused to take its own citizens, who were held at Guantánamo, without receiving millions of dollars per detainee. Other nations, like China, were ruled out as potential places to send detainees for “human-rights reasons.” China had executed several Guantánamo detainees. Syria was disqualified for the same reason.
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