Khalid Sheik Mohammed, the self-professed and self-aggrandizing mastermind of the 9/11 terror attacks in the US, gets his first day in court since 2008 Saturday as the US military arraigns him on charges of murdering 2,976 civilians by ordering 19 operatives to hijack four jet liners and use them as cruise missiles against civilian and military targets in New York and Washington.
But also on trial as KSM and four co-conspirators face a judge at the low-slung Guantánamo Bay prison complex is the US military commission system, which was first used by President George Washington after the Revolutionary War and modified for the 9/11 terror trials after an unsuccessful bid by the Obama administration to try KSM in a civilian New York court in 2009.
“The arraignment represents more than the possibility that we might hear once again from the flamboyant and mesmerizingly evil KSM,” writes Benjamin Wittes, a national security and law expert at the Brookings Institution, in the Washington Post. “It is also likely to serve as a make-or-break test for the military commissions system, a system in which the Obama administration has – despite its initial instincts and ongoing misgivings – invested considerable prestige and energy.”
While prosecutors say the men will receive a fair trial, some legal analysts are doubtful because of the secrecy around Gitmo and because the power of prosecutors to challenge and void defense statements and lines of questioning is stronger under the military system.
At a previous arraignment three years ago, Mohammed acknowledged planning the attacks from “A to Z,” and said the trial process, especially if it ends in a death sentence, will make him a martyr for the cause of radical Islamism.
The fact that Mohammed is one of three captured Al Qaeda operatives on whom the CIA admits using controversial interrogation techniques, including waterboarding, will likely present one of the main challenges for the prosecution, which has said it will try Mohammed on facts, not coerced testimony.
“Some have said that any attempt to seek accountability within the military commissions system must inevitably be tainted by torture … but the law prohibits the use of any statement obtained as a result of torture or cruel, inhuman or degrading treatment, and we will implement the law,” Gen. Mark Martins, the military’s chief prosecutor, told the press Friday night. “It was Judge Advocate General of the Army George Davis who denounced the use of the euphemistically named ‘water cure’ during the Philippine Insurrection more than a century ago, and United States military lawyers since that time have been an important voice for the principle that confessions of an accused must be voluntary.”
Some observers remained skeptical. On hand at Guantánamo as an observer, Loyola University law professor David Glazier said Martin’s assertion that coerced testimony won’t be used is bold and risky.
“I can’t help but find myself comparing Martins’ approach with that of Justice Robert Jackson before Nuremberg,” Prof. Glazier writes. “Jackson cautioned that the Nuremberg tribunal must be fair to merit international credibility, and dedicated himself to achieving that result. Martins insists that the Guantánamo tribunals are fair in the face of international doubts about their credibility, and has seemingly dedicated himself to persuading us of that belief.”
President George W. Bush set up the current commissions, which arraigned Mohammed in 2008 at a circus-like hearing where he appeared with a long, gray-flecked beard, looking dramatically different than the CIA-released photo of his capture, where he appeared disheveled in a torn white T-shirt.
On the presidential campaign trail in 2008, President Obama vowed to shut down Guantánamo and give the 9/11 conspirators a trial outside of the military system, but an attempt to hold such a trial in New York was dropped after a public outcry. Congress then explicitely barred the White House from transferring Gitmo prisoners to the US mainland.
To the the frustration of many Obama supporters, Guantánamo remains open and the Obama administration returned to the commission format Bush approved, with some modifications, including ones that give broader rights to the defendants.
The trial could take up to a year, and would likely be followed by appeals. While Mohammed in the past has, in essence, pleaded guilty and even invited execution, today’s hearing may give insight into what tack the defense will ultimately take.
Captured in Pakistan in 2003, Mohammed, who grew up in Kuwait and attended college in Greensboro, N.C., has at times bragged about his exploits, going so far as claiming he’s the person who beheaded Wall Street Journal reporter Daniel Pearl in 2002. That incident is not included in the current indictment, which includes charges of terrorism, hijacking, conspiracy, and murder.
One immediate question is the extent and manner to which Mohammed will be able to address the court, given that the hearings will have a worldwide audience.
“He likes to be in command of the situation and have everybody hanging on his every word. He loves to be the centre of attention,” Josh Meyer, who co-wrote the book “The Hunt for KSM” with Terry McDermott, tells the Toronto Star. “He’s probably been waiting for this day for a very long time.”