Sahr MuhammedAlly [Senior Associate, Law and Security Program, Human Rights First]: "An arraignment of a defendant facing the death penalty should be done in accordance with the highest standards of due process, yet the arraignment on June 5th of the five September 11 defendants at Guantanamo Bay was purely political. Khalid Sheikh Mohammed (KSM), Walid Muhammad Salih Mubarek bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali (aka Ammar al Baluchi), and Mustafa Ahmed Adam al Hawsawi [Human Rights First profiles, pdf] were arraigned in a proceeding marked by intimidation, secrecy, and an undermining of the American justice system.

The arraignment took place 6 years after the September 11 attacks [JURIST news archive] which resulted in the deaths of 2,973 people in the United States. Most of the defendants were captured either in 2002 and 2003 and held for years in secret CIA custody and not transferred to Guantanamo till September 2006. CIA Director Michael Hayden in February 2008 admitted that Mohammed had been waterboarded [JURIST news archive], a form of mock drowning. Others have reportedly been subjected to prolonged stress positions, sleep deprivation, and forced nudity.

I, along with other human rights observers, watched politics at play both by the government and the lead defendant, whose interests appeared to be eerily aligned. The government is bent on expeditiously executing the defendants and some of the defendants wish to be martyred. We sat behind a soundproof viewing gallery so that the audio sound could be cut off to protect "classified" information. We had a 20 second delay in the audio transmission and four times the audio feed was terminated. On each of those occasions, defendants were discussing issues about their treatment in custody. KSM was aware of the limitations of what could be said and he told the court that there was a "red line" and that he could not talk about "torture" and mention the "country names" of places where he was detained.

The censor, however, went off when Ramzi bin al Shibh began talking about taking psychotropic medication at Guantanamo. The audio was cut off again when Baluchi told the court that the hearing was "unfair and unjust" and that if the court was serious about a lawyer he should have been given one 5 years ago when he was arrested. As he started to describe the day of his arrest the "red line" was indeed crossed and we heard static for nearly 2 minutes. Baluchi also managed to raise the issue of abuse without being censored when he expressed skepticism at the government's desire to provide him military lawyers "free of charge" since the "the government tortured [him] free of charge all these years."

Everything that the September 11, and other former CIA prisoners, say is presumptively classified. Thus, any information about their treatment, including abuse, in custody is classified. Understandably, classified information needs to be protected from the public for national security reasons. But torture and cruel treatment and other acts of illegality by or at the behest of the U.S. government should not be classified. But the government has chosen the cloak of national security to shield abusive conduct.

Aside from the issues of torture, most of the hearing was about the defendants' competency in choosing legal representation. Counsel for the defendants filed two motions for a continuance of the arraignment in order to have adequate time to meet their clients and build rapport with the defendants. After 5 years of detention without any contact with the outside world, the defendants' first contact with lawyers was with men and women in military uniform. The uniform understandably creates hurdles in building rapport and gaining trust to facilitate attorney-client relationships. Detailed military counsel, however, were appointed for many of the defendants only in the last month and they spent very few hours with their clients due to delays in getting security clearances. A military counsel for Hawsawi was only granted a security clearance the night before the hearing. Civilian defense counsel have spent even less time with the defendants; most met their clients just two days prior to their arraignment. Yet Marine Judge Col. Ralph Kohlmann refused to grant a basic request for an extension.

Defense filed two motions for continuances prior to June 5, and both were denied. During the court proceedings, military and civilian defense counsel repeatedly argued that more time was needed to talk with their clients to explain the gravity of the decision regarding representation in capital cases. Each request was denied. In fact, the judge was not interested in hearing defense counsel and repeatedly told them to "sit down."

The American Bar Association (ABA) guidelines for capital cases [pdf] recommend two lawyers with death penalty experience and a mitigation expert. This point was raised by both military and civilian defense counsel, but the judge was not persuaded. At one point, one of the defendants – Ammar al Baluchi – when being questioned about choice of counsel asked the court, "If my case is a capital case shouldn't I have a capital defense team before my arraignment?" Judge Kohlmann responded, "This is not a MCA (military commission act) rule." [Human Rights First MCA backgrounder]

Prior to our arrival at the courtroom, we learned that the defendants who had not communicated with each other in the same room for over 5 years were allowed to "meet and greet" in the courtroom before the proceedings began. The co-defendants sitting in rows behind each other were in fact allowed to talk to each other throughout the day. KSM appeared to be the self-appointed "General Counsel" of the defendants and shouted instructions at the co-defendants. At one point when Ramzi bin Al Shibh was confused when the judge asked whether he wished to have charges read in court, KSM turned around to Shibh sitting two desks behind him and instructed "No." Shibh then said, "No" and the judge accepted the decision.

The impact of co-defendants being allowed to talk with each other was evident at the end of the day when Major John Jackson, who represents Ahmed Hawsawi, stood up and told the court that his client was intimidated by the co-defendants into opting for self-representation and that Hawsawi "was shaking" during the hearing. This was contrary to the indication that Hawsawi had given Major Jackson who had tried to gain his client's trust prior to the proceeding and was told that he would accept counsel representation. Major Jackson told the court that during the day KSM told Hawsawi, "Are you in the American army now?" It was clear that the intent was to intimidate Hawsawi into rejecting counsel.

Lt. Cmdr. Brian Mizer similarly told the court that his client Baluchi had wanted counsel to represent him, but after observing how other co-defendants were following KSM's lead he too opted for self-representation. At 5:00 pm Judge Kohlmann ordered the defendants to stop communicating with each other. But the damage was done. All five chose to represent themselves. Judge Kohlmann held off on determining whether Hawsawi and Shibh's decisions were voluntary. Shibh's lawyers told the court that they had learned at 9:00 pm on June 4 that Shibh was taking psychotropic drugs, which could affect his cognitive ability to make his decision on election of counsel.

It is a right of a defendant to knowingly and voluntarily accept legal counsel, but voluntariness must be based on knowing the full consequences of what one is doing. On June 5 this did not happen.

It is unprecedented for co-conspirators in a criminal trial to be allowed to mingle and talk to each other. It is unprecedented for a defendant to shout instructions to other co-defendants and for the judge to accept this behavior in the courtroom. It is unprecedented that evidence obtained through torture and ill-treatment prior to 2006 is admissible provided there is probative value. It is unprecedented that even defense counsel can be denied access to view some evidence deemed by the government as classified in the pre-trial stage. It is unprecedented that an American court will be subject to political influence as has been alleged by former military commissions prosecutors. But this is the military commissions proceedings at Guantanamo.

Rather than treat the September 11 defendants as criminals and prosecute them either in a federal court or court-martial where the focus will be on the crimes and not the legitimacy of the proceedings, the government has created a flawed system that does not do justice to the victims of September 11. KSM and some of the co-defendants on June 5th expressed that they wished to be martyrs. The United States is hell bent in making them martyrs by shuttling them to their execution date without due process.

It is true that prosecution of terrorism cases in federal courts, which has a proven track record in prosecuting terrorism cases while protecting national security, has had its challenges as defendants in some terrorism cases have railed against the U.S. and tried to disrupt the proceedings. But in Guantanamo, the mockery of the American justice system, by denying defendants fundamental elements of due process, is being done by the United States government itself."

"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First