FORT MEADE, Md. — A week’s worth of pre-trial motions hearings for Khalid Sheikh Mohammed and four other accused 9/11 plotters at the U.S. naval base at Guantanamo Bay, Cuba, demonstrated just how complex and long the trial will be.
Over the week, attorneys argued over issues as basic as whether the Constitution applies to the military commissions process and how much evidence should remain classified. They even discussed a health issue defense attorneys claimed to face as they worked in areas contaminated by rat feces and mold.
The hearings also saw a diatribe by Mohammed, the admitted mastermind of the 9/11 attacks, who accused the United States of having killed millions more people than the thousands that were killed on 9/11.
In the end, very few rulings were handed down as just more than half the anticipated 25 motions were actually presented before Col. James Pohl, the presiding judge in the case. Pohl deferred decisions on some of the more substantive motions.
Mohammed and his fellow defendants, Walid bin Atash, Ramzi Binalshibh, Mustafa Ahmed Adam al Hawsawi and Ali Abd al-Aziz Ali, aka Ammar al Baluchi, face the death penalty if convicted by the military commission being held at Guantanamo.
Early in the week, Col. Pohl ruled in favor of two defense motions that impacted the flavor of the proceedings for the rest of the week. On Monday, he ruled the five 9/11 defendants could choose not to appear at the rest of the week’s hearings. He instituted a format where they would be asked daily whether they wanted to appear or not.
When Pohl asked the defendants if they completely understood the new system, he received positive responses. However, they were puzzled when Pohl asked if they understood that the trial could proceed even if they escaped from U.S. custody.
Aziz Ali said he understood, then joked, “I will make sure to leave them notes.”
Mohammed agreed as well, but criticized the court’s legitimacy, saying, ”Yes, but I don’t think there’s any justice in this court.”
Their responses marked a complete turnaround from their arraignment in May, when they ignored Pohl and turned a routine hearing into a 13-hour affair.
Given the opportunity, three of the five defendants opted not to appear for the hearings. Mohammed decided not to attend just before the start of a hearing and, instead, watched it on a TV monitor in a nearby holding cell.
The number of defendants attending the hearings varied from day to day. By Friday, none chose to attend. Defense attorney Cheryl Bormann later told reporters that the five had not attended “because today is the Muslim holy day of prayer.”
On Tuesday, Mohammed won the right to wear a camouflage hunting vest over his white robes after his attorneys argued he had worn camouflage as a mujahedeen fighter in Afghanistan and Bosnia. Prosecutors argued there was no correlation between those experiences and his status at the military tribunal as an enemy combatant. Pohl ruled that as long as he was not wearing U.S. military camouflage Mohammed could wear the vest, and the following day Mohammed began sporting the vest to the hearings.
Later that afternoon, Mohammed was allowed to speak after he made a surprise request to address the courtroom. He then launched into a 10-minute diatribe against the proceedings.
“When the government feels sad for the death or killing of 3,000 people who were killed on Sept. 11, we also should feel sorry that the American government, who is represented by [lead prosecutor] Gen. Martins and others, have killed thousands of people – millions,” said Mohammed.
He advised Pohl not to be “affected by the crocodile tears. Because your blood is not made of gold and ours is made out of water.”
Pohl responded by saying he would no longer allow the defendants to make personal remarks during the case.
Defense attorneys and prosecutors spent much of the rest of the week engaging in long, deeply legal arguments about how the trial would actually take place. Yet to be decided by Pohl are weighty issues including how much of the Constitution applies to the military commissions, whether witness identities should remain classified and how much access to witnesses the defense should have.
Government prosecutors also want to impose a “protective order” that would prevent the revelation of any classified details about what the defendants may have experienced during their interrogations by the CIA. The order would even mark as classified the thoughts and memories the defendants have about their interrogations. The order also requires a 40-second delay in the audio feed so even spectators in the courtroom at Guantanamo cannot hear any details of the CIA’s program that might be uttered.
Several times, defense attorneys criticized prosecutors for making what they deemed unrealistic and contradictory requests for how the trial should take place.
It now appears that the trial will not start in May 2013, the placeholder date set by Pohl at the arraignment earlier this year. Closing the week’s hearings, Pohl told attorneys to prepare for weekly hearings every other month.
At a post-hearing news conference, defense attorney Bormann told reporters, “I would be shocked if we are on trial in 2013.”
Brig. Gen. Mark Martins, the lead prosecutor, acknowledged the slow pace of the proceedings and agreed he did not see a trial in 2013.
“We know people are impatient with the pace of proceedings,” Martins said.
That likely is particularly true for the families of the 9/11 victims.
“Justice delayed is justice denied,” said Al Acquaviva whose son, Paul Acquaviva, was killed in the attack on the World Trade Center. As he watched the proceedings in person, Acquaviva criticized Pohl for the slow pace.
The next round of pre-trial motions hearings are scheduled to begin Dec. 3.