OCTOBER 23, 2012
Judicial Watch Senior Investigator Lisette Garcia was in Guantanamo Bay, Cuba last week to observe in person military commission proceedings against Khalid Sheikh Mohammed, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi. Family members of Paul Acquaviva, Andrea Haberman, Michael Noeth, Randy Scott, and Amy Toyen who were among the 2,976 Americans killed on September 11, 2001, also attended the pre-trial hearing during which 18 motions were argued, two were resolved by the parties, and seven more were held in abeyance pending a military judge’s ruling on the handling of evidence and witnesses going forward.
On Mon., Oct. 15, 2012, U.S. Army Judge Col. James Pohl ruled on whether the defendants had to be present for all phases of the proceeding. Ultimately, Judge Pohl ruled that the defendants could waive their right to be present on a daily basis until the trial begins in earnest around the year 2014. The order, which was later amended to allow the prisoners to change their minds at any time, was issued over the government’s objection. Chief Prosecution Counsel Brig. General Mark Martins argued vigorously for keeping the defendants in the courtroom (to the extent they were not so disruptive as to make their presence impossible) so that justice might be served in person. The judge, however, said their right to be present included a right to be excused from this phase of the trial.
On day two of the weeklong session, Judge Pohl decided whether the defendants could dress as they wished. During the defendants’ unruly arraignment in May, the Joint Task Force commander who runs the detention facility where all al Qaeda suspects are housed, had denied Khalid Sheikh Mohammed’s (KSM) request to wear either a camouflage jacket or an orange jumpsuit to court, saying the field jacket had cargo pockets that posed a security threat and that the jumpsuit was not proper courtroom attire. The defendants had also reportedly been forcefully extracted from their cells when they declined to come to court on prior occasions. On Tues., Oct. 16, though, Judge Pohl, who is actually presiding over the trial, reviewed the warden’s decisions, allowing a camouflage vest (so long as it formed no part of a current uniform of the U.S. Armed Forces), saying a vest’s pockets were no more dangerous than those of a Western-style suit worn by Majid Khan during his entry of a guilty plea in February. However, Judge Pohl barred the jumpsuit, saying it was irrelevant to KSM’s present incarceration, where inmates wear white robes.
In addition to granting their clothing requests and excusing the defendants’ absence through a written waiver, Judge Pohl later amended his order to allow for them to change their minds at any time, effectively letting them come and go into the courtroom as they pleased. KSM was the first to take advantage of this indulgence, agreeing to come to court around 5:00 a.m. Wed., Oct. 17, then changing his mind around 9:00 a.m. while in a holding cell adjacent to the courtroom, then asking to rejoin the proceedings after midmorning prayer. Because the defendants are heavily guarded, the movement of any one accused is labor and time intensive, although the Joint Task Force guards appeared to handle each transition in a very orderly fashion.
Once in court in his preferred attire, KSM seemed unsatisfied to sit and listen. Just before 3 p.m. Wed., Oct. 17, KSM raised his hand to remark on a debate underway about the extent to which national security information relevant to the trial ought to remain secret. The judge admonished KSM to confer with his civilian attorney, David Nevin of Boise, prior to speaking out in court. Nevertheless, after a brief conference, KSM (through an interpreter) said the following:
In the name of Allah, most graceful, the government at the end of the argument gave you an advice. They told you any decision you’re going to issue you have to keep in mind the national security and to remember that there were 3,000 people killed on September 11. . . .
When the government feels sad for the death or killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government, who is represented by General Martins and others, have killed thousands of people — millions. . . . I don’t want to be long, but I can say that the president can take someone and throw him in the sea under the name of national security. And so — well, he can also legislate the killings, assassinations under the name of national security, for the American citizens. . . .
My only advice to you, that you do not get affected by the crocodile tears. Because your blood is not made of gold and ours is made out of water. . . .
Following KSM’s remarks, Judge Pohl said that “no matter how heartfelt,” he would no longer “entertain personal comments of any accused about the way things are going.” The next morning, the judge cut short a parallel statement on behalf of American victims delivered by Trial Counsel Edward Ryan.
In contrast to the patience he exhibited toward KSM, Judge Pohl told the government’s attorney:
I understand this case. I understand that people died. I have got that. I am sensitive to that. I have got all that. But this is not the time to make that argument. Please restrict your argument to facts relevant to the issue before me.
Another major issue that arose as the week came to a close was whether the civil liberties guaranteed by the U.S. Constitution apply to these “unprivileged alien enemy belligerents,” despite the fact that they are being prosecuted for war crimes in a military tribunal rather than in federal court under the U.S. criminal code. General Martins hedged, refusing to answer Judge Pohl’s pointed questions directly, replying instead that it was too soon to tell. However, the judge’s five-month delay in even asking this question, as well as the government’s refusal to answer it, raised doubts about the commission’s commitment to a speedy trial.
If re-elected, President Obama may have other plans for this country’s high-value al Qaeda captives. The Justice Department’s recent purchase of an Illinois prison suggests the Obama administration may have other plans for carrying out terrorism trials and finally closing the Guantanamo Bay site.
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