The alleged mastermind of the Sept.11 attacks, Khalid Sheikh Mohammed, and four other defendants appeared in a military courtroom at Guantanamo Bay, Cuba, over the weekend to answer a roster of charges filed against them. The hearing was supposed to be a straightforward arraignment, but nothing went according to plan.
The men ignored the judge, or sometimes spontaneously broke out into prayer. One of the men shouted to the judge that the guards in the prison might kill them. Their strategy was to make the way they had been treated while in captivity the center of the discussion, and in this early hearing they largely succeeded.
It took just 30 minutes for the word "torture" to be said for the first time. It started with Mohammed. Just minutes into the proceeding, he refused to put on headphones that provided an Arabic translation of what was going on around him.
When the judge asked him if he approved of his defense team and understood the charges against him, Mohammed, also known as KSM, pretended he couldn't hear — he seemed to be looking down into his long red-hennaed beard. The other four men soon followed his lead.
The T-word was uttered when one of the defense attorneys tried to explain to the judge why the defendants were being so defiant. The headphones, he explained, reminded them of the torture.
But the people watching the proceedings didn't hear him finish. When he said the word torture, all anyone heard was white noise. The military commissions pipe white noise into the viewing rooms whenever there is a concern that classified information is being revealed. Because the sound coming out of the courtroom is on a 40-second delay and outsiders are behind soundproof glass or watching on monitors, censors have time to block out classified information with static.
The odd thing is, the CIA has admitted to waterboarding KSM and another of the Sept. 11 defendants, Ramzi bin al-Shibh. An inspector general looked into the episode. The head of the CIA's clandestine service has just come out with a book defending the process. And yet, under the rules of the military commission, attorneys can't talk to detainees about what happened during their confinement because it is "contraband" information.
In December, the head of the Guantanamo detention center provided a long list of subjects that defense attorneys were prohibited from speaking to their clients about. "You can't talk about it, you can't discuss it, it is not going to happen," is what attorneys were told, according to David Nevin, KSM's lawyer.
The issue of torture won't go away, he says, just because its discussion is classified. Once torture happens, he argues, it leaves a permanent mark.
"We know this about human behavior," Nevin said during a news conference Sunday. "We know that it is impossible to torture someone and then at some point up the road, at some later place say, 'We're through with that. We are not going torture you anymore ... and everything from now on is clean.' "
In other words, Nevin said, the commissions can't go back and minimize what happened. That is the cornerstone of the defense's case. Defense counsel is looking for mitigating circumstances that would prevent a jury from putting their clients to death, and they say the torture the defendants suffered is reason enough.
The chief prosecutor at the military commissions says no one should fall for that argument.
"The remedy for torture or cruel treatment, things that will make you ashamed that they were done, that are deplorable and disappointing, the remedy is not to just dismiss all charges. It is harder than that," said Brig. Gen. Mark Martins, the chief prosecutor of the commissions who is also lead counsel for the prosecution in the Sept. 11 case.
"It doesn't pass the common sense test," he said. "That everything, everything is polluted and tainted by an instance of torture? That means everyone goes free because someone else, who may have been acting independently, out of control, or did something wrong? That's not justice. It is harder than that."
It may be harder than that, but in their first rocky session in the Guantanamo courtroom, the defendants went to great lengths to make their point.
Walid bin Attash, who allegedly used to run al-Qaida training camps, was rolled into the courtroom in a restraint chair with his arms tied to the chair. The judge asked him if he would behave if he were untied. Bin Attash refused to acknowledge the question and eventually was untied.
Defense attorneys said the men were acting out because they were objecting to the way they were treated while in U.S. custody. Their passive defiance turned a routine hearing into a 13-hour ordeal, which ended with their saying they would wait to enter their pleas. The case is expected to reconvene to discuss motions in June.
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