Terror trial defense lawyers criticize military tribunal process

By Richard A. Serrano

May 6, 2012 12 AM PT

GUANTANAMO BAY, Cuba — The defense team for Khalid Shaikh Mohammed, now formally charged with capital murder in the Sept. 11 terrorist attacks, on Sunday angrily called the military commission legal process a political “regime” set up to put him and the four other defendants to death.

David Nevin, Mohammed’s civilian attorney, said new rules imposed under the Obama administration bar them from discussing with their clients whether they were mistreated by U.S. authorities -- and in the case of Mohammed, “tortured” -- after their arrests eight years ago.

“We are operating under a regime here,” Nevin said. “We are forbidden from talking to our clients about very important matters.

“And now the government wants to kill Mr. Mohammed. They want to extinguish the last eyewitness so he can never talk about his torture. They want the political cover so he’ll be convicted and executed.”

According to CIA accounts and other documents, Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks, was subjected 183 times to waterboarding at a classified CIA black site before he was moved to the detainee prison at Guantanamo Bay.

On Saturday he and his four alleged Sept. 11 comrades were formally arraigned on conspiracy, terrorism and murder charges. They deferred entering pleas of guilt or innocence in the case, with the government planning to ultimately seek five death sentences.

Army Gen. Mark Martins, the chief prosecutor, said Sunday that the public should remember Sept. 11 and what happened that morning when nearly 3,000 people died at New York’s World Trade Center, the Pentagon outside Washington and a field in western Pennsylvania.

“The enemy force,” he said, “was sophisticated, patient, disciplined and lethal.”

But Martins also vigorously defended the military tribunal process, and said it was fair to both sides.

“However long the journey, and the arraignment was only the start of a legal process that could take many months,” he said, “the United States is committed to gaining accountability for those who attacked and killed innocent people.”

He said defense lawyers can talk to their clients, but cannot show them classified documents that disclose harsh treatment. Otherwise, he said, “they can talk to their clients about anything.”

He added that even if there was some form of torture, it should not “pollute” the entire case.

“The remedy is not to just dismiss all the charges,” he said. “It does not mean that everybody goes free, that everybody is free of accountability just because somebody else did something wrong. That’s not good.”

Rather, he said, it is important for the case to proceed and the public to decide its fairness.

“This will be in the highest traditions of our country,” Martins pledged. “It’s important that people realize that this will be done methodically and patiently. Justice in every society is methodical, determined and patient.”

On the accusation that prosecutors are purposely seeking the death penalty, the brigadier general said their goal is simply to submit the case to a jury of 12 U.S. military service members.

“That’s what we want,” he said. “That’s justice, I believe. It will be a real jury, and we will trust this thing with them. These people will be impartial, and that’s what’s going to happen.”

He added, “This death penalty stuff is premature. We are trying to put this through the process.”

Martins also defended women on his prosecution team who he said were dressed “appropriately” at the arraignment Saturday. He was responding to complaints from Cheryl Bormann, a Chicago defense attorney for Walid bin Attash who wore a long black abaya to court.

On Sunday, Bormann explained her abaya, saying her client is offended by women who do not dress in conservative Islamic attire, feeling that it causes him to sin. “It is distracting to him to see a woman who has anything bare other than her face,” she said.

She added that she has met with her client a dozen times, and always dresses respectfully. “He is that conservative,” she said.

James Connell, civilian attorney for Ammar al Baluchi, aka Ali Abdul Aziz Ali, noted that the five defendants coordinated a silent protest at the arraignment, refusing to answer the judge’s questions. Except for one very short outburst, their behavior was sharply different from their last public hearing four years ago when they shouted that they hoped their executions would win them martyrdom.

“The accused participated in peaceful resistance to an unjust system,” Connell said of their silent, defiant behavior Saturday. “These men have endured years of inhumane treatment and torture. This treatment has had serious long-term effects and will ultimately infect every aspect of this military commission tribunal.”

He said issues of torture and cruel treatment should be litigated before the case goes forward. “These proceeding may turn out to be the only public examination of the torture years,” he said.

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