Chaos in the 9/11 courtroom

In Guantánamo, Khalid Sheikh Mohammed and his four co-defendants don't know the rules -- and neither does the judge.

By Jennifer Daskal

Read more: George W. Bush, Terrorism, Cuba, Opinion

Reuters/Janet Hamlin /Pool

A courtroom drawing from Guantánamo Bay on December 8 shows 9/11 victim family members Vaughn Hoglan (R), Hamilton Peterson (2nd R), Alexander Santora (3rd R), Alice Hoagland (4th R) and Jim Samuel (rear, in green) and defendants Khalid Sheikh Mohammed (L, top), Walid Bin Attash, (L, 2nd from top), Ramzi Bin al Shibh (L, 3rd from top), Ali Abudl Aziz Ali (L, 4th from top) and Mustafa al-Hawsawi (L). The defendants are being tried on charges related to the 9/11 attacks.

Dec. 11, 2008 | GUANTANAMO BAY, Cuba -- When alleged 9/11 mastermind Khalid Sheikh Mohammed and his four co-defendants entered the Guantánamo Bay courtroom Monday, they came armed with a plan to martyr themselves at the hands of a tainted legal system. By the afternoon, the plan was in disarray.

The five defendants wanted to plead guilty, but only if it brought them their desired outcome. "If we plead guilty, can we still be sentenced to death?" Mohammed asked U.S. Army Col. Stephen Henley, the military commission judge responsible for trying the men.

No one in the courtroom knew the answer, including Col. Henley. In perhaps the most important terrorism trial in American history, the rules of the game are still being made up along the way.

This was the fourth hearing in the military commission case against Mohammed and his four co-defendants -- Ali Abdul-Aziz Ali, Ramzi bin al-Shibh, Mustafa al-Hawsawi, and Walid bin Attash . They are accused of planning and organizing the 9/11 attacks. Forty-nine journalists from 15 countries came to the U.S. Naval base in Guantánamo Bay, Cuba for the show. For the first time in the six-plus-year history of the commissions, the government also brought down a group of five 9/11 family members and their guests.

Khalid Sheikh Mohammed, who is representing himself, immediately attempted to take charge of the proceedings. He interrupted Col. Henley, a replacement for the recently retired Marine Col. Ralph Kohlmann, and chided him for taking so long to read his pleadings. Mohammed complained that he and his four co-defendants had sent the commissions an important message over a month ago and still hadn't received a response.

"Is the military commission using a carrier pigeon?" he asked Col. Henley, in English.

Col. Henley calmly and carefully justified the delay in responding. The filings are all kept in secure facilities, he explained. Although he knew of the filings weeks ago, he did not have access to a secure facility and could not read them until the previous night, he added. The judge then asked the court clerk to distribute to counsel the defendants' filings, now labeled Exhibit 89.

When Exhibit 89 had been distributed, he judge read aloud from it. His words were piped back electronically to courtroom observers like me, who were separated from the judge, the prosecution and the defendants by a glass partition. A 20 to 30 second delay in the electronic transmission allowed enough time for a commissions staffer to hit mute if any of the defendants or their counsels blurted out classified or otherwise sensitive information: "In accordance to what was agreed upon," read Col. Henley, "in the joint meeting for defense strategy, Tuesday, November 4, 2008, the brothers" -- meaning the five 9/11 codefendants -- "agree to the following: (1) to stop filing any motions; and (2) an immediate hearing session to announce our confessions and plea in full."

The cool and calm Col. Henley then turned towards Mohammed and explained that he needed to be sure that he understood the written request he had just read aloud. One by one, he asked three of the defendants -- Mohammed, bin Attash, and Aziz Ali -- a series of questions: "Did you write this? Does it reflect what you want to do? Did you discuss it with your lawyers?"

"I understand. I understand. We do not want waste any more time," an impatient Mohammad responded. "We do not want to waste time."

The judge warned that there were limits to his ability to move things along. Before accepting any plea, he needed to do a thorough factual inquiry to ensure that the defendants were confessing to facts that formed the offenses for which they were being charged, and confessing voluntarily. That inquiry would not happen this week.

Mohammed was not pleased. Neither was bin Attash. "We hope to set a hearing in the near future, as fast as possible," bin Attash urged, in English. Aziz Ali chimed in, also in English: "I wish you to hurry this up."

As for the other two defendants -- bin al Shibh and Hawsawi -- they were out of luck. Their commission-appointed, military defense attorneys had filed motions challenging their mental competency, and the judge said he would not even consider their requests to enter a guilty plea until he had resolved that question.

Neither defendant was dissuaded, and the judge's explanation seemed to irritate both men. "I want to get rid of this woman," said Bin al Shibh, referring to his detailed military counsel Lt. Suzanne Lachelier. The judge explained he had no choice.

Next page: Mohammed asked again. The judge still could not answer