Alleged Sept. 11 mastermind Khalid Sheik Mohammed and four accused accomplices cooperated Monday at a pretrial hearing - a stark contrast to their defiant arraignment - and got the right to skip the rest of this week’s war court hearings.
Judge James Pohl overruled prosecution objections and said that each day the alleged terrorists could stay in their cells for the earliest stages of the war crimes case against them. Attorneys are arguing 25 motions involving fundamental legal issues governing their death-penalty trial, likely years from now.
Mohammed, the accused mastermind, appeared in a traditional white tunic and trousers topped with a black vest and self-styled turban – not the paramilitary style uniform that the prison camps commander forbade.
Asked by the judge if he understood that he could stay away this week, Mohammed replied that he did.
“But I don’t think there’s any justice in this court,” he added.
His beard was once again red, apparently from henna, as he sat following the proceedings at the defense table. His four alleged co-conspirators in the worst terror attack on U.S. soil sat quietly behind him, and answered the judge on a variety of questions.
In May, they sat stonily silent in court as the judge advised them of their rights to defense lawyers, and refused to don headsets piping in Arabic translation or answer the judge’s questions.
For Monday’s session, the Pentagon had installed a workaround: speakers below each defendant’s table that broadcast the simultaneous translation. A Defense Department official could not say how much the new technology had cost at the $12 million expeditionary legal compound.
The issue of missing court sessions took a strange turn when, at the request of the chief prosecutor, the judge told the accused terrorists that if they escaped from Guantánamo that would constitute voluntary absence. So their death-penalty terror trial could go on without them.
“I’ll make sure to leave some notes,” said a clearly bemused Ammar al Baluchi, Mohammed’s nephew who allegedly arranged some travel and finances for the 9/11 hijackers.
No captive has escaped from Guantánamo, the war on terror prison camps set up a decade ago by the Bush administration.
Baluchi had sought to skip Monday’s hearing in a secret emergency motion Sunday night. His father had died days ago in Kuwait, his lawyer said, and he wanted to mourn in his cell. Pohl ordered Baluchi to appear in court. The judge did not rule on a second request by Baluchi to authorize a videoconference with his mother, who lives in Pakistan or Iran. She’s the sister of the alleged 9/11 mastermind, Mohammed.
The Pentagon’s war crimes prosecutor Army Brig. Gen. Mark Martins had said attendance at their death-penalty trial can’t be waived because of “awful penalty that could follow.”
A prosecution court filing said it would look bad, too. A trial where an accused “can sit just a short distance from the courthouse and be allowed to decide on their own caprice whether to attend on any particular day runs in direct contravention to the strongest of public interests in ensuring that justice, no matter the result, is seen to have been served for these charges.”
Pohl noted that the Pentagon’s own Manual for Military Commissions, signed by former Secretary of Defense Robert Gates, provides for a voluntary absence after arraignment.
All five men were held in secret CIA prisons, where their lawyers say they were tortured. Defense lawyers argue that the trip to court from the prison camps can be traumatic. The captives are woken before dawn, shackled and have blinders put on their eyes for each early morning trip to the war court compound.
This week’s hearings were delayed four times: first by the execution of a man in Idaho because Mohammed’s lawyer, Boise attorney David Nevin, was defending that man, too. Then the judge agreed to postpone the hearings until after Ramadan.
The court participants were assembled at Guantánamo in August. But a computer outage at the courthouse complex derailed the proceedings by a day, then the Pentagon evacuated the compound back to Washington, D.C., because of Tropical Storm Isaac.
Mohammed, 47, and his alleged accomplices got to Guantánamo in 2006 from years of interrogation in the CIA’s secret prison network where, CIA declassified documents disclose, he was waterboarded 183 times. Once here, the U.S.-educated, Pakistani-born Mohammed bragged to a military panel that he orchestrated the 9/11 attacks from “A to Z.”
His four co-defendants allegedly trained, funded and arranged travel for the 19 hijackers that killed nearly 3,000 people at the World Trade Center, Pentagon and in Pennsylvania in the worst terror attack on U.S. soil.