Defendants Refuse to Respond at 9/11 Arraignment
By Karen Parrish
American Forces Press Service
NAVAL STATION GUANTANAMO BAY, Cuba, May. 5, 2012 Five defendants facing arraignment here today in what has been called the biggest post-9/11 terrorism case refused to respond to the judge in court.
Army Col. James L. Pohl presided as judge over the arraignment of five men accused of conspiracy in the 9/11 attacks: Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi.
The attacks killed 2,976 people. The accused are charged with terrorism, hijacking aircraft, conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, and destruction of property in violation of the law of war. If the defendants are found guilty during a trial, they face possible death sentences.
Under military commissions rules, an arraignment includes:
-- Informing defendants of their right to counsel and asking defendants who they want to represent them;
-- Defense and prosecution lawyers’ statement of their qualifications;
-- The judge’s statement of his or her qualifications;
-- Reading of charges and an opportunity for defendants to enter pleas, although defendants may waive the reading of charges are not required to enter pleas;
-- Judge’s consideration of prosecution and defense motions; and
-- Administrative issues and, possibly, scheduling of the next hearing.
The arraignment proceeded slowly, complicated by translation issues, clothing issues, lack of response by the defendants, and defense attorneys repeatedly raising issues relating to attorney-client communication and privilege during administrative parts of the arraignment.
Each defendant sat at a separate table, along with at least one of his assigned attorneys. Proceedings were transmitted to seven sites in the United States via closed-circuit television.
The court initially provided headphones through which the defendants could hear simultaneous translation of everything said in court. Mohammed did not respond to the judge’s question of whether he could hear through the headphones.
David Nevin is Mohammed’s learned counsel. In military commissions, the government pays the fees for one “learned counsel” attorney -- experienced with death-penalty cases -- for each defendant in a capital case. Most defendants have additional “detailed” attorneys who are either service members or civilian government employees.
“I believe Mr. Mohammed will decline to address the court,” Nevin said today.
Mohammed and the other defendants removed their headphones shortly afterward. “The reason [Mohammed] is not putting the earphones in his ears has to do with the torture [during his interrogation],” Nevin said. Army Brig. Gen. Mark Martins, chief prosecutor, suggested the court bring in consecutive translators as an alternative to the headphones. Pohl recessed the court in place while translators made the change in systems.
From that point, audible translation in Arabic alternated with the English-language proceedings. Several exchanges between judge and attorneys happened so quickly the translation overlapped with the original statements.
Defendants were dressed in white, and four wore head coverings. Defense attorneys raised the issue of the defendants’ clothing, saying Guantanamo officials had prevented their clients from wearing the culturally appropriate clothing attorneys had provided for the defendants’ court appearance.
Pohl said he would look into the matter, and that if the clothing decision was the result of an “arbitrary, capricious decision” by Guantanamo officials, he would rectify the matter.
Mohammed sat through much of the proceeding with his head bowed, at times apparently reading a book he held. Later, other defendants also appeared to be reading books or magazines during proceedings.
Pohl questioned the accused about their defense teams. If defendants refused to respond to his questions, the judge explained, the attorneys now assigned would be retained. Pohl then again asked Mohammed several questions about whether he was satisfied with the attorneys assigned to him, his preference for his chief counsel, and whether he wanted to request other counsel. Mohammed refused to answer any of the judge’s questions.
Given the defendant’s refusal to answer questions about his defense team, Pohl said the attorneys already assigned would remain in their positions. Pohl repeated the questions to each of the other defendants, who also did not answer. The judge said all current attorneys would also remain assigned.
After a short recess, Pohl called on attorneys to state their qualifications, as required by the arraignment process.
Army Capt. Jason D. Wright, detailed counsel for Mohammed, attempted to discuss attorney-client communication while stating his qualifications. Other defense attorneys had raised similar issues during earlier discussion.
The judge broke in. “I’m a process guy, and this seems to be happening over and over again. … This is not your opportunity to litigate some other issue,” he said.
Pohl explained the arraignment was not at the point of considering motions, although that would happen later in the process.
Shortly after the judge discussed process, defendant Shibh started speaking in a loud voice, off-microphone. Some of what he said was inaudible, but his comments included, “You will not see me again. … They are going to kill us, at the camp, and say we have committed suicide.”
“You will get your opportunity [to speak] at the right time,” the judge told him. Later, the judge said an arraignment does not offer an opportunity for defendants to speak, except to enter a plea if they choose to.
Navy Lt. Cmdr. Kevin Bogucki, detailed counsel to Shibh, said during his statement of qualifications that given the defendants’ confinement here, coupled with restrictions imposed by the rules of military commissions, “it is very difficult to form an attorney-client relationship that is meaningful.” Bogucki said he was detailed to the case less than two weeks ago, and has not yet had the opportunity to form a meaningful attorney-client relationship with Shibh.
Air Force Lt. Col. Sterling Thomas said monitoring of attorney-client communications and other factors have severely restricted his ability to act effectively on behalf of his client. Navy Rear Adm. David B. Woods, commander of Joint Task Force Guantanamo, set a policy in December that allows government officials to monitor prisoners’ legal mail.
“As I told your colleagues,” the judge told Thomas, “if you have an issue about interference in your ability to represent your client, raise it to me in an appropriate manner.”
After a lunch recess, all defense attorneys were confirmed in their assignments, and the arraignment moved to “voire dire,” or questions to the judge on his qualifications.
Prosecution waived questions; defense attorneys questioned Pohl for more than three hours, not including a one-hour prayer break for the defendants. Nevin, on Mohammed’s behalf, reserved the right to challenge the judge’s assignment. The other defense attorneys also reserved the right to challenge.
The judge then reminded the attorneys of their obligation to notify the court if they intend to discuss classified information, so the court can be closed if necessary.
“The accused will now be arraigned,” Pohl announced.
Martins read the general charges applying to all defendants: “Conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding an aircraft, and terrorism.” Mohammed waived the reading of individual charges, but three defendants requested they be read.
Pohl said given the length of the charges and the lateness of the hour, he deferred the reading of charges until the next session.
The judge then moved to entry of pleas. All defendants deferred their entry of pleas.
Pohl asked when the government would be ready for trial; Martins replied Aug. 1. Pohl then turned to the defense learned counsels and asked if they would be ready Aug. 1. James G. Connell III, Ali’s learned counsel, said one year’s delay would be a “reasonable start.”
Pohl asked if defense teams would agree to a trial date of May 5, 2013, and defense attorneys asked if they could delay their answer until the next session.
Pohl agreed, and said the next session will be June 12. By that date, he added, he will answer all motions filed before May 12. Pohl explained when a motion is filed, the other party has two weeks to respond, after which the originating party has an additional week to counter the response before the judge rules on the motion.
Nevin said Mohammed had been strip-searched before today’s proceedings, and a “variety of [other] things took place this morning, that were unnecessary and hadn’t happened n the past.” Pohl said he thought Nevin’s concerns are valid, but added, “I can’t address them in a vacuum.”
Issues relating to confinement and treatment of detainees can be complex, the judge said, and added he will need to hear what officials of the detention facility have to say about the issue. Nevin said he will file a written motion asking that strip-searches be stopped.
Pohl said the charges could be read before adjournment, or first thing June 12. Defense teams asked that the charges be read as soon as possible, so Pohl directed they be read after a prayer recess. Other than the reading of charges, the judge said, the business of the arraignment is concluded.
President Barack Obama suspended military commissions in 2009, and the process was resumed after the Defense Department put reforms in place. Congress made the reforms law in the Military Commissions Act of 2009.
Mohammed previously admitted major involvement in the 9/11 attacks. In a written statement to the Combatant Status Review Tribunal held here March 10, 2007, he claimed responsibility “for the 9/11 operation, from A to Z.” He and the other four defendants, after their first arraignment in 2008, notified the judge in the case they intended to plead guilty.
Martins, the chief prosecutor, repeatedly has told reporters that any evidence considered when this case again goes to trial is subject to those reforms. No evidence or statements obtained through the use of force or torture will be admitted, he said. Officials have said previous proceedings involving this set of defendants have no bearing on the current case.
The accused are presumed innocent unless proven guilty beyond a reasonable doubt, officials emphasized.