The alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four other men charged with helping launch those attacks ended their first day in a military commission arraignment by saying they would wait to enter their pleas.
The day was contentious. The men refused to answer routine questions from Judge James Pohl, refused to participate in the proceedings, and even refused to listen to the simultaneous Arabic translation of what was going on all around them.
Courtroom No. 2 at the U.S. naval base was packed. Mohammed, also known as KSM, read the Quran and magazines as defense and the judge sparred for hours. He was dressed in a white robe, the white turban of a mullah and a long beard dyed red with henna.
The men tried with him took cues from KSM, refusing to acknowledge the judge or the proceedings. They seemed to have good relationships with their attorneys, so the passive resistance seemed to be a strategy on which the attorneys and their clients had agreed.
"I believe Mr. Mohammed will decline to address the court. I believe he is deeply concerned about the fairness of the proceeding," Defense Attorney David Nevin told the judge.
Arraignments in federal courts generally end with a plea. It is different in military commissions. If the men had entered pleas, they would have sped to trial. There is a rule in military commissions that requires a trial to start 120 days after arraignment. The government suggested an August 2012 start date. The defense asked for a year's delay.
The 9/11 case has become a test of the military commissions system and the specter of harsh interrogation tactics has cast a pall across the proceedings. Military prosecutors say they don't need evidence derived from those techniques to make their case. The defense says the harsh treatment of their clients is part and parcel of the case and can't be stripped out.
"How our clients were treated is reflected in their behavior today," defense attorneys said time and again as their clients glowered in the courtroom.
The five men are facing eight charges, including conspiring to commit acts of terrorism, murder and hijacking, as well as intentional attacks on civilians and civilian property. If convicted, all five face the death penalty.
The first of the Sept. 11 defendants to enter the courtroom was Ramzi bin al-Shibh. He allegedly wanted to come to the U.S. in 2001, and be one of the Sept. 11 hijackers, but he couldn't get a visa. Prosecutors say he took another job instead, as a terrorist financier.
Bin al-Shibh allegedly served as a Hamburg-based deputy to KSM, transferring money to some of the hijackers and even tried to enroll in flight school with the other hijackers. He came into the courtroom wearing the traditional Muslim shalwar chemise and a white skullcap. He sat down, stroked his beard, opened a Quran and began to pray.
The entrances of the other defendants sent similar subtle messages. Ali Abdul Aziz Ali, also known as Ammar al-Baluchi and KSM's nephew, came in wearing biker sunglasses.
Walid bin Attash, a 33-year-old Yemeni, followed, but in a different way: he was, literally, tied to a chair on wheels. Officials say he struggled with guards outside the courtroom and they had to restrain him to get him to appear. His arms were tied down so a guard had to carefully put Attash's glasses on his nose. Attash lost a leg in Afghanistan; his prosthetic arrived to the courtroom about five minutes after he did. He's been charged with being the number two in the so-called "Plane Operation."
The last defendant to appear was the most dramatic: Khalid Sheikh Mohammed, who has said that he masterminded the Sept. 11 attacks "from A to Z," shuffled into the courtroom with a phalanx of guards. His co-defendants watched him carefully as he sat down. He was wearing white and had hennaed his long beard to a bright red. He was wearing glasses and looked down the line of the defense tables making eye contact with each man. It became clear, just minutes later, that they had a plan.
When KSM declined to answer Pohl's questions, the other defendants followed suit. When he prayed, they prayed. He read the Quran, they picked up the book too. At one point, two of the men passed around a recent issue of The Economist. It was as if the legal battle being waged in the room had little to do with them.
The Issue Of Torture
To hear the defense attorneys tell it, the biggest issue in the case is not whether their clients committed the Sept. 11 attacks, but rather how they were treated when in U.S. custody. The CIA has admitted to waterboarding two of the defendants — KSM and Ramzi bin al-Shibh — and that was the elephant in the room all day.
The defense attorneys said that before the proceeding even started, torture need to be addressed. Their clients, they said, were boycotting the proceedings and acting out because of the way they had been treated in the past.
They claimed that their clients weren't wearing headphones for translation because it reminded them of the torture they suffered. One of the techniques used in enhanced interrogation is to put headphones on a prisoner and play loud music. The lawyers suggested the translation coming through the earphones reminded their clients of that.
The defense strategy suggests that the Sept. 11 trial, which has been almost a decade in the making, is going to be a battle. The defense has already filed a motion that argues that the case wasn't properly brought to the military commissions. Should they win that motion, the trial of KSM and the alleged Sept. 11 hijackers would go back to square one.