Guantanamo Bay, Cuba (December 9, 2008) -- In what may well have been the last major hearing during the Bush administration in the case against the five “high-value” Guantánamo detainees accused of coordinating the 9/11 attacks, each defendant began the day-long proceeding on Monday by indicating his desire to confess and plead guilty to all charges. But when the court reconvened after lunch, Mr. Mohammed withdrew his request to plea and his co-defendants immediately followed suit due in large measure to lawyers from the John Adams Project. The project is a partnership between the National Association of Criminal Defense Lawyers and the American Civl Liberties Union that sponsors expert civilian capital trial counsel to assist the under-resourced military defense counsel for several Guantánamo detainees.
Speaking before a full courtroom, including the families of five 9/11 victims, alleged mastermind Khalid Sheikh Mohammed proclaimed, “I know we’re in big drama. I just want to plead.” A few minutes later Walid bin Attash called the hearings “a play.” The phrase “show trials” hung in the air as the court began the first post-election hearings in Guantánamo.
“The Bush administration touted that the Military Commissions process would be full, fair and open, but these proceedings are mere theater,” said Michael Price, NACDL National Security Coordinator, adding that “although the accused may sit in a courtroom, the Commissions lack the basic guarantees of due process and equal protection that are the cornerstone of American values and American justice. And at the end of the day, these prosecutions are not about the accused. This is about us, as Americans, and whether we can hold fast to our values in spite of the accused and their charges.”
Military Judge Steven Henley noted that he received a letter from the five accused dated Nov. 4 indicating their request to withdraw all pending motions filed on their behalf, plead guilty and “confess” to the Commission. Judge Henley, however, refused the request from two of the defendants, Ramzi Binalshibh and Mustafa al-Hawsawi, since their competence to waive counsel and stand trial remains in doubt. Mr. Binalshibh has been put on psychotropic medication, possibly to treat schizophrenia, while the basis for concern about Mr. al-Hawsawi’s mental state is still classified. All five, however, were held in the CIA’s “high-value detainee” program for three-and-a-half to four years and subjected to prolonged periods of isolation, psychological manipulation and abuse, and the cruel, inhuman and degrading treatments euphemistically called “enhanced interrogations techniques,” such as waterboarding.
Despite the longstanding prohibition against any testimony of torture coming into the Military Commissions, torture was mentioned a number of times, at least once by Mr. Mohammad, who stated “I do not trust Americans. . . . Not Bush, not the CIA who tortured me.” The second reference was from Maj. Jon Jackson, speaking of his client al-Hawsawi, whose competency is now in question “as a result” of torture.
During an examination of Brig. Gen. Thomas Hartmann regarding allegations of unlawful command influence, John Adams Project lawyer Jeff Robinson pressed him on the review of evidence obtained by torture when he was the legal advisor to the Convening Authority. Gen. Hartmann introduced a new phrase into the lexicon of absolution from torture. Speaking of the evidence obtained by so-called “clean teams” (as opposed to the same evidence earlier obtained by torture), Gen. Hartmann embraced this evidence as acceptable under “the attenuation analysis.” In the same hearing, former Staff Judge Advocate Capt. McCarthy testified that Gen. Hartmann “was pushing and pushing for tapes of the ICRC interviews,” a fact sure to be unwelcome news to the International Committee of the Red Cross.
During the morning session, Judge Henley had asked the prosecution to brief whether the Military Commissions Act prohibits the imposition of a death sentence if a defendant pleads guilty instead of being convicted at trial. When the hearing resumed at 1 p.m., Mr. Mohammed asked Judge Henley, “If we plead guilty, we will not be able to be sentenced to death?” The prospect of a guilty plea resulting in a life sentence rather than death, together with the fact that Judge Henley would not permit all five detainees to enter a plea together, was apparently enough to cause Mr. Mohammed, Walid Bin’ Attash, and Amar al-Baluchi to withdraw their offers to plead – at least until the issue of Mr. Binalshibh and Mr. al-Hawsawi’s competency is resolved. “We wish to wait for our brothers,” the three said.
It remains unclear whether the competency issue will be resolved before President-Elect Barack Obama takes the oath of office on Jan. 20. Mr. Binalshibh has been evaluated by a board of military psychiatrists, but his defense team has yet to receive critical discovery regarding his mental and physical health prior to his transfer to Guantánamo Bay in 2006. Mr. al-Hawsawi, however, has yet to be evaluated, and his defense team has not received any of his medical records.
More information on the John Adams Project is available online at: www.aclu.org/johnadams
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The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.