9/11 Trial: Defense Focusing on Alleged Torture

Defense lawyers for five men accused of plotting the September 11, 2001 attacks, publicly challenged the fairness of the military court at Guantanamo Bay.

The defendants, who include the alleged mastermind of Sept. 11, Khalid Sheikh Mohammed, were formally charged with murder and other terror-related offenses.

Anchor Marco Werman speaks with reporter Arun Rath who was in the military court. Below is an excerpt from Rath’s post for our partner program FRONTLINE.

By most obvious measures, Khalid Sheikh Mohammed, the self-confessed mastermind of the 9/11 attacks, is utterly powerless; not only is he locked in the most secure prison in the world, he has been physically broken: subjected to harsh interrogations, waterboarded 183 times.

But during his arraignment on Saturday at Guantanamo Bay, Mohammed and his four co-defendants used every tool at their disposal—legal or otherwise— to exert a surprising amount of control over the proceedings.

Even before the first question could be asked, Mohammed threw the court off-script, refusing to put on his headphones to hear the Arabic translations. (David Nevins, Mohammed’s lawyer told the judge, “the reason he is not putting the earphones in his ears has to do with the torture that was imposed on him. It’s not a choice.”)

The accused are required to understand the proceedings, so Arabic translations were played on the court loudspeaker after each statement, instead of the simultaneous, UN-style translation the headphones would have provided. That meant all parties would have to speak in, “bite-size chunks,” as presiding Judge Col. James Pohl put it, and that everything would literally take twice as long—thirteen hours by the time the day was done.

The loudspeaker approach also meant that the entire Arabic translation was entered into the court record—raising the possibility the defense could later raise objections based on inaccurate translations. Read More >>>

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Marco Werman: It’s going to be a while before the Guantanamo trial of Khalid Sheikh Mohammed and four other men accused of plotting the September 11th attacks actually begins. That much is clear after this weekend’s marathon arraignment. It lasted thirteen hours as the defendants appeared to deliberately disrupt the proceedings. Defense lawyers have publicly challenged the fairness of the military court in Guantanamo and prosecutors say the expect hundreds of motions to be filed by the defense team before a trial starts. Arun Rath of our partner program “FRONTLINE” witnessed the arraignment this weekend in Guantanamo. He’s now in Hanover, Maryland. Arun, you were one member in the pool of nine journalists to be inside the courtroom on Saturday afternoon. Describe the scene in the courtroom.

Arun Rath: Well, it’s interesting because the gallery, which is where the journalists are seated, along with 9/11 family members and NGO representatives who were selected to be allowed in, were in the courtroom, but were actually separated from the rest of things by double paned reinforced glass. That’s both for security reasons and also we hear what’s going on through the court loudspeaker actually on a forty second delay. That’s so that they can kill the audio if something classified comes up with time enough to react so that nobody hears anything wrong. The weird thing about that is then what we’re seeing in front of us, we don’t hear what happens until about forty seconds later. So some of the disruptions that happened in court, later on we were seeing initially, for instance, you know, one of the defendants took his shirt off to show supposedly his torture scars. It took us forty seconds to hear, you know, what was actually going on as far as that goes.

Werman: How did Khalid Sheikh Mohammed and the others actually look in the courtroom?

Rath: I would say they looked healthy, for one thing. We’ve heard about Khalid Sheikh Mohammed and how apparently a few years back he was looking a little bit thinner and maybe frail. He’s chunky now. He looks sort of like, you know, the body size that he was in that classic photo when he was first nabbed, and he also, a bunch of us were commenting on the fact that he seemed to have ‘mehendi’ in his beard, you know, that sort of red henna which we were speculating, weren’t able to find out how he was able to get that in Gitmo of all places. We never heard anything from Khalid Sheikh Mohammed, but there were a couple of interesting outbursts. At one point, one of his co-defendants, Ramzi bin al-Shibh, he interrupted his lawyer, shouting out, saying something about Muammar Gaddafi. And then he said, “Maybe you’re not going to see me anymore.” He said, “They’re going to kill us in the camp and say we’ve committed suicide.” He’s shouting this out in the middle of the proceedings before they calmed him down and the judge told him, he wasn’t ejected, but he was, the judge had to tell him, you know, you can’t do that in this sort of context.

Werman: Now apparently there was some controversy in the courtroom about on of the defendants supposedly gesturing to a 9/11 victim family member. Clarify what happened there.

Rath: Yeah, that was at the very end of the day, and keep in mind this was a brutally long day. It was thirteen hours of court proceeding by the time it was done because one of the defendants exercised his right to hear the charges read in full. So thirteen hours, everybody’s exhausted, and as they’re filing out, the 9/11 family members were hanging around and apparently, I did not see this, but what happened was Ramzi bin al-Shibh, on of the co-defendants, looked over in their direction, smiled, and gave a thumbs up gesture which was obviously very deeply upsetting for the family members. The defense lawyer, we asked about this later on, and he claimed that what was actually happening was that Ramzi was actually looking at his court appointed translator and gesturing at him, but we talked to one of family members afterwards, this guy, Eddie Bracken, and he wasn’t buying it.

Werman: Arun, from what you saw on Saturday, did you get any sense of how the defense team plans on running its legal strategy at this point?

Rath: They’re going to call in question the legitimacy of the proceedings themselves, which seems like it probably won’t go far, but the judge actually indicated that if could raise, you know, significant enough legal or constitutional issues, he would entertain hearing them. They’re going to try to get more access to their clients and loosen these restrictions they have in communicating with them, and obviously torture is going to be a big factor in this. It was from the beginning before things even started. Khalid Sheikh Mohammed refused to put his headphones in because, his lawyer said, of the torture he was subjected to.

Werman: And so the defense feels that by bringing torture into the courtroom they might be able to kind of cast some illegitimacy on some of the charges?

Rath: Yeah, and they’ll call into question the admissibility of evidence of well. The government did have what were called “clean teams” which went down and recorded interviews with the defendants. They were not using any of the harsh interrogation techniques. But what the defense is saying is that, “Look, these guys were tortured first. Everything now that happens is tainted.”

Werman: Finally, Arun, you were advised by the Pentagon just before going to Guantanamo to bring additional camping gear for your two night there. What was that about?

Rath: I called a colonel there. This was my first trip to Gitmo and I was wondering about how I should prepare and one thing I was told, I needed to bring a sleeping bag. It’s because that the tents there in the tent city that we stayed, in the commune of living, they keep the tents at about sixty degrees. Even though it’s eighty-five or so outside and tropical, it’s freezing inside the tents. Apparently the problem is mold and insects will invade if not. So you’re sort of camping indoors.

Werman: Arun Rath of our partner program, “FRONTLINE”. We’ll have links to more of your observations from the courtroom in Guantanamo at theworld.org. Thank you very much.

Rath: Thanks, Marco. It was a pleasure.

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