While last Saturday’s opening of the 9/11 trials at Guantánamo received some news coverage, it’s worth pausing over just what transpired. The defense—joined by the accused themselves—challenged the legitimacy of nearly every aspect of the proceedings, making for dramatic courtroom theater and boldly emphasizing, again and again, the deep differences between these military commissions and civilian courts.
Partway through the day, the judge, Army Colonel James L. Pohl, asked wearily, “Why is this so hard?” The hearing was expected to be a two- to three-hour proceeding, but it had already passed that mark and nothing much had been accomplished. Instead, a parade of oddities had set the tone for a morning that included surprises, interruptions and challenges to the court itself. From the newly henna-dyed beard of Khalid Sheikh Mohammed to the prosthetic leg of Walid bin Attash, brought into the courtroom after the defendant himself was seated, to the wearing of the traditional Muslim abaya by a female defense attorney, this courtroom scene was neither orderly nor ordinary. Instead, it was a bitter standoff in which the defense attorneys challenged the court at every turn, causing the day’s session to last 13 hours.
The five defendants—Khalid Sheikh Mohammed, Walid Muhammad Salih bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali and Mustafa Ahmed al-Hawsawi—set the tone, refusing to look up at the judge or to wear headphones in order to hear the translated proceedings. But it was their defense attorneys who gave voice to the protest that was brewing. There were, all told, ten such attorneys present in the courtroom. Both civilian and military lawyers, they were there to represent the five co-defendants. They began by explaining that the commissions were off to an unfair start. They were not talking about legal issues at this point; they were talking about the physical comfort of the defendants. Khalid Sheikh Mohammed and Ali Abd al-Aziz Ali had not been allowed to wear the vest and turban provided by their attorneys; bin Attash had been brought to the courtroom, unexpectedly, in shackles. And as for the headsets, as KSM’s lawyer, David Nevin, explained, his client’s refusal to wear them “has to do with the torture that was imposed upon him.” Bin Attash’s attorney, Cheryl Bormann, clad in her abaya, made it clear that this wasn’t just a matter of past mistreatment: “What happened to these men this morning has affected their ability to focus on the proceedings at hand….”
The lawyers then turned to the crux of their frustration: their inability to properly represent their clients. At every point they could, they identified those factors that had “interfered with our ability to perform our duties competently.” It was a litany of obstacles that had frustrated the defense since the Obama administration’s decision just over a year ago to mount these trials by military commission rather than in federal civilian courts. A significant lack of resources, an absence of sufficient translators, plus the tight constraints on attorney-client communications had all “severely restricted” their ability to perform their duties, the lawyers explained.
Overall, the larger point they were trying to make, issue after issue, was that these were not Article III courts, the federal civilian courts in which these defendants were originally slated to be tried. Commander Walter Ruiz, the Navy lawyer representing al-Hawsawi, made the point crystal clear as he explained in a lengthy statement that one solution to the impasse created by the defendants’ unwillingness to elect counsel at the hearing would be to “proceed with what we do in federal courts.”