After Years Of Brutal Torture And Mistreatment At Hands Of US Government, 5 Alleged Terrorists Being Tried In Kangaroo Court System Rigged To Prevent Defense Lawyers From Doing Their Jobs

May 6, 2012

WASHINGTON, DC – Silence and occasional outbursts from accused 9/11 mastermind Khalid Sheikh Mohammed and four others during their arraignment were signs of “peaceful resistance to an unjust system,” an attorney representing one of the men said Sunday.

“These men have endured years of inhumane treatment and torture,” James Connell, who is representing defendant Ali Abdul Aziz Ali, told reporters at Guantanamo Bay, the U.S. naval base where the men are being tried before a military court.

Connell’s comments came after a 13-hour court session on Saturday — the first appearance in a military courtroom for Mohammed and four others since charges were re-filed against them in connection with the September 11, 2001, terror attacks that killed nearly 3,000 people.

The hearing, which wrapped just before 10:30 p.m., offered a rare glimpse of the five men who have not been seen publicly since January 2009, when they were first charged by a military tribunal. Mohammed, Ali and the others — Walid Muhammad Salih, Mubarak bin ‘Attash, Ramzi Binalshibh and Mustafa Ahmed Adam al Hawsawi — appeared to work together to defy the judge’s instructions, refusing to speak or cooperate with courtroom protocol.

On Sunday, attorneys representing them told reporters that the proceedings had been unfair to their clients. Prosecutors were expected to speak to reporters later Sunday.

“We are hamstrung … before we ever start,” said David Nevin, who is representing Mohammed. “The system is a rigged game to prevent us from doing our jobs.”

The silence from the defendants — some of whom ignored the judge, while others appeared to be reading — slowed the proceedings to a crawl.

Bin ‘Attash was wheeled into the courtroom in a restraining chair. It was unclear why he was the only defendant brought into court in that manner, though he was allowed out of restraints after he promised not to disrupt court proceedings. Toward the end of the day, he took off his shirt while his attorney was describing injuries she alleged he sustained while in custody.

The judge told bin ‘Attash, “No!” and warned that he would be removed from the courtroom if he did not follow directions.

At one point, bin ‘Attash made a paper airplane and placed it on top of a microphone. It was removed after a translator complained about the sound the paper made against the microphone.

The judge, Col. James Pohl, needed the five to vocally confirm their desire to be represented by the attorneys who accompanied them to court. Because the defendants refused to cooperate, Pohl ruled the men would continue to be represented by their current military and civilian attorneys.

All five men 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 convicted, they face the death penalty.

There were so many allegations behind the charges, it took more than two hours for officers of the court just to read into the record the details of the 9/11 hijackings.

Earlier, the refusal of the defendants to speak caused an issue with the court translations.

Mohammed’s lawyer said that his client “will decline to communicate with the court.”

Because the men wouldn’t speak, the judge could not confirm that they could hear the translation of the proceedings. Time elapsed while they set up loudspeakers in the court to carry the translations. Some lawyers objected to this solution, too, and translation remained a problem at the outset of the hearing.

Pohl said he would enter a not guilty plea on Mohammed’s behalf, if he refused to enter a plea. Later, the five men chose to defer entering a plea, a routine practice during military court proceedings.

The next hearing is scheduled for June 12. It will likely be at least a year before the case goes to trial, Pohl said.

Hours into Saturday’s proceeding, one of the defendants broke his silence with an outburst.

Binalshibh shouted in heavily accented English: “You may not see us anymore,” he said. “They are going to kill us.”

During recesses, the five men talked amongst each other and appeared relaxed. They passed around a copy of The Economist.

Binalshibh appeared to lead the group twice in prayer in the courtroom, once delaying the resumption of the hearing.

Mohammed, whose long beard appeared to be dyed red by henna, was much thinner than the last time he was seen publicly in a courtroom.

He also appeared much smaller and paler than the man the world came to know through photos released after his capture in March 2003 in Pakistan.

The charges allege that the five are “responsible for the planning and execution of the attacks of Sept. 11, 2001, in New York, Washington, D.C., and Shanksville, Pa., resulting in the killing of 2,976 people,” the Defense Department said.

The military initially charged Mohammed in 2008, but President Barack Obama stopped the case as part of his effort to close the U.S. detention center at Guantanamo Bay, a U.S. naval base in Cuba.

Unable to close the center, Obama attempted to move the case to federal court in New York in 2009, only to run into a political firestorm. The plan was dropped after complaints about cost and security.

Last April, Attorney General Eric Holder announced the five would face a military trial at Guantanamo Bay.

The decision was met with some criticism, including from the American Civil Liberties Union.

ACLU Executive Director Anthony D. Romero said last month that the administration is making a “terrible mistake by prosecuting the most important terrorism trials of our time in a second-tier system of justice.”

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First Military Tribunal Case At Bush’s Torture Prison Is Child That U.S. Interogator Threated With Gang Prison Rape

August 27, 2010

WASHINGTON, DC - After working for a year to redeem the international reputation of military commissions, Obama administration officials are alarmed by the first case to go to trial under revamped rules: the prosecution of a former child soldier whom an American interrogator implicitly threatened with gang rape.

The defendant, Omar Khadr, was 15 when he was captured in Afghanistan and accused of throwing a grenade that killed an American soldier. Senior officials say his trial is undermining their broader effort to showcase reforms that they say have made military commissions fair and just.

“Optically, this has been a terrible case to begin the commissions with,” said Matthew Waxman, who was the Pentagon’s top detainee affairs official during the Bush administration. “There is a great deal of international skepticism and hostility toward military commissions, and this is a very tough case with which to push back against that skepticism and hostility.”

Senior officials at the White House, the Justice Department and the Pentagon have agreed privately that it would be better to reach a plea bargain in the Khadr case so that a less problematic one would be the inaugural trial, according to interviews with more than a dozen current and former officials. But the administration has not pushed to do so because officials fear, for legal and political reasons, that it would be seen as improper interference.

Mr. Khadr’s trial at the naval base in Guantánamo Bay started earlier in August but was put on a monthlong hiatus because a lawyer got sick and collapsed in court. The pause has allowed the administration to consider the negative images the trial has already generated.

Chief among them are persistent questions about the propriety of prosecuting a child soldier. Moreover, in a blow to establishing an image of openness, the Pentagon sought to ban journalists who wrote about publicly known information that it decreed should be treated as secret.

The judge declined to suppress statements Mr. Khadr made after an Army interrogator sought to frighten him with a fabricated story about an Afghan youth who disappointed interrogators and was sent to an American prison where he died after a gang rape. In a pretrial hearing, the interrogator confirmed making that implicit threat, but the judge ruled it did not taint Mr. Khadr’s later confessions.

And prosecutors disqualified an officer from the jury because he said he agreed with President Obama that Guantánamo had compromised America’s values and international reputation.

Administration officials would speak only anonymously about their deliberations on whether to try to abort the trial. But their view about the need improve the system’s perceived credibility — so allies will cooperate by providing evidence or extraditing defendants — was echoed by Kenneth L. Wainstein, assistant attorney general for national security in the Bush administration.

“It is important for the government to be able to proceed through a trial, to do so in a transparent way, and have the world see that this is a fair process with strong safeguards and full due process,” he said. “The sooner that happens, the better.”

No one intended the Khadr case to be the first trial under the revamped system.

He had already been charged when President Obama froze the tribunals in January 2009. In November, after Congress overhauled commission rules, Attorney General Eric H. Holder Jr. included Mr. Khadr in an initial batch of five detainees who would remain in the military system.

At the time, officials say, it was assumed that other referrals would quickly follow. But controversy over Mr. Holder’s decision to move five other detainees to the regular court system for a trial in New York over the Sept. 11 attacks shut down the process, and military prosecutors resumed Mr. Khadr’s case.

Mr. Khadr, who was born in Toronto and comes from a Qaeda-linked family, was a teenager in 2002 when he was found, heavily wounded, at a compound in Afghanistan after a firefight with United States troops. A grenade blast in that battle killed an Army sergeant, Christopher Speer.

Investigators concluded that Mr. Khadr threw the grenade — a theory defense lawyers reject. A videotape found at the compound was said to show Mr. Khadr helping to make and plant roadside bombs. But the centerpiece of five charges against him is Sergeant Speer’s killing.

Earlier this summer, prosecutors and retired Vice Adm. Bruce MacDonald, the commission “convening authority” who must approve any sentence, apparently raised the possibility of a deal that would allow Mr. Khadr to serve only a few years, rather than a potential life sentence, if he pleaded guilty.

But Mr. Khadr, now 23, reacted by firing two defense lawyers. He told the court he was offended by what he saw as an attempt to “legitimize the sham process” by dangling “the least sentence possible” to coerce a confession.

Still, Dennis Edney, a Canadian lawyer assisting the Khadr family, said a deal involving a lesser charge, like conspiracy to support terrorism, remained possible.

“I would strongly recommend a reasonable deal to Omar if the murder charge was off the table,” Mr. Edney said.

Sergeant Speer’s wife, Tabitha Speer, might object to that outcome. She attended the opening of the trial and has written of her husband’s death, “The pain now carried by both myself and our children will last a lifetime.”

Administration officials have discussed whether senior civilian leaders at the Pentagon or elsewhere could get involved, helping to revive plea negotiations or even directing Admiral MacDonald to offer a more attractive offer. (Admiral MacDonald did not respond to an interview request.)

A similar high-level intervention would clearly be allowed in the regular court system, where the attorney general supervises prosecutions. But tribunal rules insulate commission officials.

A provision in the Military Commissions Act prohibits “unlawful command influence,” defined as attempting “to coerce, or, by any unauthorized means, influence” the judgment or actions of prosecutors or the convening authority. Officials are debating what that means.

The provision’s wording was suggested to lawmakers in 2006 by Col. Morris D. Davis, then the chief commissions prosecutor, who complained that Bush appointees had inappropriately pressured him to take aggressive steps like using evidence he considered tainted by torture.

Now retired, Colonel Davis said he believes the provision was not meant to bar pressure to sweeten a plea offer: “It’s clearly not ‘command influence’ to do something favorable to the accused,” he said. “The whole concept was the opposite of that.”

Still, the statute makes no such distinction. And officials do not want to risk intervening, lest it become partisan ammunition for conservatives who might accuse them of using political interference to coddle a terrorist.

Eugene R. Fidell, who teaches military law at Yale Law School, said there was “ no clear answer” to how far administration officials may intrude. But given the risks, he said, “they are right to be cautious.”

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