Sabotage in Guantánamo

How the 9/11 suspects are trying to exploit the major flaws in the military commissions implemented by the Bush administration.

Editor's note: Since May, staff members of Human Rights Watch have been reporting on U.S. judicial proceedings at Guantánamo for Salon.

By Stacy Sullivan

Read more: Terrorism, Politics, Human Rights, News, Torture, Al Qaeda, Guantánamo Bay, Guantanamo military commissions

July 15, 2008 | GUANTÁNAMO BAY, Cuba -- When Mustafa Ahmed al-Hawsawi, the 39-year-old Saudi alleged to have been al-Qaida’s financial manager, appeared before the military commissions at Guantánamo Bay last month, his lawyer, Major Jon S. Jackson, intended to defend him on multiple charges. Al-Hawsawi is accused, in a group indictment with four others, of planning the 9/11 attacks. Jackson, a lumbering 6-foot-4 Army lawyer from Memphis, Tenn., had met repeatedly with al-Hawsawi and built a rapport with him.

But when al-Hawsawi met with other alleged al-Qaida brethren in the Guantánamo courtroom -- including Khalid Sheikh Mohammed, the alleged 9/11 mastermind -- he seemed to have a sudden change of heart. Al-Hawsawi told the court that he didn't want Maj. Jackson or anyone else to represent him. Like his alleged co-conspirators, he now wanted to represent himself.

For Jackson, there is no question of what precipitated the reversal: He says that Khalid Sheikh Mohammed and some of the other accused intimidated his client into rejecting counsel. "It was very clear to me what happened," Jackson said, noting that al-Hawsawi was visibly shaking during the courtroom encounter. The prisoners had been escorted into the courtroom and briefly appeared to be laughing and joking, seemingly happy to see each other. But upon learning that al-Hawsawi and another of the detainees planned to cooperate with defense counsel, Mohammed glared at them and reportedly said: "What, are you in the American Army now?"

Last week, Judge Ralph H. Kohlmann, the Marine colonel presiding over the proceedings here, held individual hearings with each of the accused to ascertain whether any of the men had somehow been coerced into rejecting counsel and to implore them to change their minds.

The commission rules, in a nod to international fair trial standards, explicitly permit self-representation. Beyond the difficulties any accused criminal would face defending himself without a lawyer, U.S. officials doubtless remain worried that the 9/11 defendants will use their day in court to make grandstanding speeches impugning the U.S. and the Bush administration's war on terror. If last week's hearings are any indication of what is to come, the defendants are likely to direct attacks against the military commissions themselves, and not without reason. Given the enormous flaws in the procedures at Guantánamo -- particularly the use of coerced and secret evidence -- the defendants may not need professional lawyers to show legitimate shortcomings in the process.

Hearings for the five men accused of plotting the 9/11 attacks have been problematic from the start. Ramzi Binalshibh, the alleged 20th hijacker, refused to appear before the commission at all. According to his lawyers, he is mentally disturbed and taking a cocktail of psychotropic drugs. Unlike at past hearings in which military extraction teams were sent in to force the detainee to appear in court, Guantánamo officials allowed him to miss the hearing, probably because he is scheduled to have a hearing next month on his mental competency to stand trial.

The four others each appeared individually in the courtroom last week, their military and civilian counsel sitting beside them. Reading from a prepared script in a slow and deliberate voice, Judge Kohlmann asked each of the accused whether or not he had made the decision to represent himself of his own free will.

"Did any of the other accused do anything as a directive to you about the choices you should make about these proceedings?" he questioned.

"Without a doubt, no," al-Hawsawi responded in his hearing. "Absolutely no."

Judge Kohlmann asked the question several more times, in different ways. Was there anything that could be perceived as a threat? Are any of the other four men in a position to influence your actions concerning defense counsel?

Again, in each hearing, the detainees answered with a definitive "no."

Judge Kohlmann spent the better part of each hearing warning the men about the dangers of self-representation. "I think it is unwise to represent yourself and I strongly advise you to accept representation of counsel as is your right under the Military Commissions Act," he said.

He warned that the accused are facing very serious charges and could be sentenced to death. Legal defense counsel, he instructed, could file legal motions, make objections in the courtroom, cross-examine witnesses, call witnesses to the stand and present material as evidence much better than the defendants could. In addition, he noted that the accused, because they lacked security clearances, would not be given access to classified material before the trial, which could seriously hinder their abilities to represent themselves.

Indeed, from their cells in Guantánamo, it would be virtually impossible for the defendants to adequately defend themselves. (The accused don’t have access to telephones, computers or a law library, and obviously cannot travel to interview witnesses.) The military commission restrictions go well beyond what regular criminal defendants would face representing themselves.

This may be precisely one reason that the accused, perhaps at the behest of Mohammed, are insisting on representing themselves. None of the men seem particularly concerned about winning their case; they have already admitted guilt, and they say they are proud of their acts and would like to be sentenced to death. On their way to so-called martyrdom, they are eager to point out the injustices of Guantánamo. As various reports in Salon and elsewhere have shown, they have ample material to work with, thanks to the Bush administration's policies at the prison.

Next page: "My lawyer is not going to serve any death sentence. I feel I have the right to review these classified documents"