Strange Things Are Happening at Khalid Sheikh Mohammed’s Trial

If the trial had happened in federal court in New York City, like the Obama administration originally wanted, it’s unlikely that the surreal shenanigans of justice that went down this week at the Khalid Sheikh Mohammed’s pre-trial hearings in Guantanamo Bay would have gone so unnoticed. After all, it’s the trial of the century, except it’s being held in a secretive offshore facility and administered with rules of evidence and procedure that are still being figured out.

To refresh your memory, KSM is the alleged mastermind of the 9/11 attacks and a host of other Qaeda initiatives. He was captured by CIA and Pakistani intelligence forces in 2002 and was shuttled between CIA black sites until he took up permanent residence at the Guantanamo Bay Detention Camp in Cuba in 2006.

It’s there that a military commission, a kind of ad hoc court-martial-like trial, is being held for KSM and four of his top-level al Qaeda associates. These proceedings are the War on Terror’s first forays into“bringing these terrorists to justice,” as President Bush said in a speech to a joint session of Congress in the weeks after the attacks in 2001.

But things got weird on Monday, during a pre-trial hearing. Some of the evidence that will be used against the five defendants in the case was either obtained through enhanced interrogation techniques or is classified information that cannot be released to the public. So the courtroom at Gitmo, which was specially built for these proceedings, is equipped with a “censorship button” that an assigned security officer of the court presses at the behest of the judge, Army Colonel and retired judge James Pohl, when classified information is brought before the court. After that button is pressed, the audio of the proceedings cuts out, and a red light illuminates on the judge’s bench, letting members of the media, who are already listening in on a 40-second delay, and trial counsel know that this information is being blocked.

On Monday, it became entirely unclear who is in charge of pressing that button and by extension, who or what entity is really running this trial or monitoring the proceedings externally. According to unofficial court transcripts obtained through the Office of Military Commission’s website, the censorship button was pressed during an exchange between the judge and defense counsel.

After the red light went off, Judgle Pohl said, “Trial counsel, note for the record that the 40-second delay was initiated, not by me. I’m curious as to why.” He continued, “If some external body is turning the commission off under their own view what ought to be… then we are going to have a little meeting.”

Then the prosecution attorney, Deputy Trial Counsel Joanna Baltes suggested that she might have an answer. “I understand and I can provide explanation at the 505 (h) hearing,” describing a post-motion hearing about trial procedure.”

The suggestion that the prosecution, which is the representative of the United States Department of Defense, knew more than the judge set off defense counsel: “Your Honor, on behalf of Mr. Mohammad I would like to know who has the permission to turn that light on and off, who is listening to this, who is controlling these proceedings…”

A defense attorney for another of the accused echoed the same concern, adding, “Before we can proceed any further we can only assume that maybe they are monitoring additional communications, perhaps when we are at counsel table.”

Together, the defense attorneys filed an emergency defense motion “to prohibit electronic monitoring and recording of Attorney-client communication.” On Thursday, the judge ordered that no third party can cut the courtroom feed, and that any external facilities that would have the power to do so must be disconnected.

Media access to this trial is tightly regulated by the Council on Military Commissions, and reporters who are at Guantanamo have limited access to viewing the trial and must live in special encampments on site. We spoke with Brigid Bergin, a reporter from the public radio station WNYC in New York, who has been covering the trial to see how victim’s families are responding to process.

It’s understandable that these never-before-seen hearings are hitting procedural roadblocks as the government tries to balance national security interests with achieving a sense of fairness and justice in court, but judging from Brigid’s experience, it makes for some strange courtroom drama.

VICE: What was your impression of the censorship button issue?
Brigid Bergin: That happened on Monday, during the afternoon session. After the proceedings got out they went into a closed session. And they after that, the defense lawyers came over to the media center where we’re working—watching things on closed circuit TV, using Internet and phones—and they related to how the incident was explained to them, which wasn’t a whole lot of information.

It seems to be implied by this incident is that there’s some sort of external power that potentially has information or censorship information and holds more power than the commission.
This is not the first time the button has been pressed. To actually experience what it means – I was sitting in the gallery where you are watching the courtroom in front of you behind a Plexiglas window, looking through the glass, watching the court proceedings, and the feed that comes in from the closed-circuit television is on a 40-second delay. The last words that we heard were “closed” and “secret.” So, we’re sitting there, it cuts off, the static, we wait, there’s a little red light that’s sitting on the judge’s desk, so we know why we’re hearing this static. We know the system has been initiated. But the way I experienced it, when they turned the feedback on, the judge appeared to me to be visibly annoyed and said that he had not initiated this system, he had not prompted the security system to go off.

What’s it like reporting on this trial? What kind of access are you given to the courtroom or where the defendants are being held?
There are only 10 reporters who can go to the courtroom, and there are certainly more than 10 reporters here. I think this week there are a couple dozen, but they have room for 60 reporters to be at the facility. The rest of the gallery is filled with family members of September 11th victims and human rights observers. We are sitting behind a Plexiglas wall – it is walled-off from the courtroom – but you are looking in from the back at what’s happening.

The defendants are on the left side of the room. There are five tables. They have to sit at the end of the table, and on the floor in front of them, there’s actually this large chain that I guess can be used if the court needs to retrain or shackle the detainee. I did not see that happen, but you certainly see the chain when you walk into the courtroom.

They actually walked us through that portion of the facility on Sunday night. There’s a chain-linked corridor, and at the end of that walkway, there are five individual holding cells that basically look like five small trailers. And that’s where the detainees are when they’re at the court facility. And when you go inside, you go to the far back where the detainees would actually stay. There’s a cot. There’s an arrow on the floor pointing to Mecca, and there’s a mat, there’s a prayer rug, and then a urinal and a kind of beat-up looking mirror thing. And then a grate and a steel door that separates another portion of that cell where the lawyer can actually go in and talk to the client. Right outside the door to the courtroom, there’s this separate trailer that apparently is just for this extra security team in case, for some reason, they are needed. And along the entire wall where the defendants are sitting, there are soldiers all dressed in fatigues, just sitting there.

But how does that make you feel as a member of the media to be inside this controlled environment?
Practically speaking, it’s not an easy place to report from. We’re using prepaid phone cards, and you can hear a crackly connection, internet that slows down if anyone’s uploading video or anything that takes up too much bandwidth. And you have the feeling of being monitored, of being watched. And you are being watched. The folks who work here that are sort of assigned to be our escorts and minders are all very pleasant, but there is a fine line, and they will let you know when you are even getting near it.

Apparently on this particular trip they’ve loosened up the rules more than they have in the past. They showed us three designated spots where you are allowed to take pictures. You are allowed to take more pictures than that, but they are very, very cautious about not wanting any pictures to get taken that could indicate the structure of the facility or the overall layout, and if you take anything that’s of actual landscape, I think that’s where they get anxious. And they ask to see all of the photos before anyone uploads things. There’s a Slovakian public television station here and they took some video on the ferry—there’s a ferry between the airport where you land and the portion of the base that we’re on—and they took some footage as we’re arriving at this portion of Guantanamo, and they had to delete it.

Well, it all sounds pretty strange.
Yeah, it is strange. I think that before I came here, I did a piece for WNYC where I talked to some of the families who have been impacted. I met a man, Jim Riches, who is a retired firefighter, his son was a firefighter who died in Tower 1. He actually came down here back in January of 2009 and was here when President Obama signed the executive orders suspending the commissions for the first time. So he was actually here for something very similar to what we’re experiencing right now, and it was interesting talking to him because he felt – and here we are four years later – kind of back at square one.

I also talked to Karen Greenberg, who’s this expert at Fordham Law School. Her position – and she’s open about it – is that she thinks the detention facility should be shut down. She doesn’t support the military tribunal process. The point that she made that I thought was interesting, and I understand it better now, is that she disagreed with Mr. Riches point that we’re back at square one, because they have made decisions. They are going through this process – the trial process. But this isn’t just a federal trial or a military trial. It’s like they’re trying to infuse the proceedings with a little bit of both, so they’re basing decisions and making rules as they go, and it’s a process that seems like they have a lot of questions about.

How did you end up covering the trial?
I was a general assignment reporter over the summer and we wanted to cover this trial for our listeners who feel very connected to the terrorist attacks of September 11th as well as the family members, to make sure that they knew what was happened related to this.

To get actually be allowed to cover this, members of the media must apply to the Joint Task Force Guantanamo for credentials. The JTF public information officer selects reporters according to the number of spaces available, their media market, and the extent to which the outlet has been covering the proceedings. Victims’ family members are selected through a lottery system.

So here we are – the first set of hearings in the second Obama administration in a place that theoretically could have been closed, and yet we don’t really know what happens here, we don’t really know what’s going on, and four years later it’s not closed. And so we submit the credentials, not know necessarily that anything would come out of it, and we found out the next day that we got it, and it just felt like an opportunity to see something that was going to be important for our listeners to know about.

And so have you been able to talk to any family members of the victims who are there?
Oh, yeah. We met with them on the very first day, so we met all the families that wanted to meet with us. There are five families here. They don’t all come talk to us, but three of the mothers in particular are very open to talking with us. We actually just met with them again this afternoon.

How has the uncertainty of the hearings made victims’ family members feel? Must be difficult to get a feeling of closure or of justice?
They’re also picked from a lottery and so for them, this was the hearing they were picked to see. One of the mothers we spoke to this afternoon, Joyce Woods, she said it was a little disappointing when you are only able to see four days of this pre-trial portion of the proceedings, and one of the days they don’t meet, that she felt like it was frustrating. However, all three family members agreed what they wanted was to make sure the process was done right, so it didn’t give the defense ground for a lot of appeals, that when there’s a verdict there’s a verdict, and that stands. That sentiment I’ve heard from several of them.

In some ways, the minutiae of these hearings obscure the broader ideas of the war on terror, the attacks of 9/11, the sense of justice, and closure. Those don’t even seem to be on the horizon of what’s being tackled on a day-to-day basis.                                                                          One of the fathers who I spoke to has made the point several times that he feels very frustrated by the fact that this story doesn’t get the coverage that he thinks it deserves. Why isn’t it on CSPAN so people can just watch it? Why does he have to go to a military facility to watch a feed of it, when he’s back in the United States. There are only certain spots where you can watch it.

The emotions are very much on the surface. Most of them have told us at some point the story about the loved one that they lost and what they’re left with. What they did. The families keep connecting me back to why we’re here. But then at the same time you listen to some of the emotions from the defense attorneys. Part of yesterday’s hearing was the defense attorneys want to be able to spend 48 hours in the facility where their clients are detained, so essentially they want to spend 48 hours inside one of these detention facilities. They want to be able to tour all the ones that are here, and they will argue that they government would arrange a two-hour tour, and one of the defense attorneys said it will be like the government leading them on a two-hour tour on a Disney jungle cruise, where you’re on the ride and you see elephant, and it turns out it’s a mechanical elephant. And he really took this metaphor I think much farther than anyone was expecting him to, but it was sort of funny. The judge who is overseeing this process usually makes funny quips. When they started to make this motion about wanting to spend 48 hours at the detention facility he said, “You wanna sleep with your clients?” Which, again, was like, “Why don’t we have any of this on tape? It’s amazing.” The reason for making that motion is that the defense is saying that they have a good-faith basis to suggest that the conditions their defendants are being detained in could potentially be part of the mitigating defense if there was an appeal. So, you’re getting into discussions of things like the conditions, the black sites, and all that classified information. Not only have they not figured out how to enter that evidence, but they haven’t figured out how they’re going to talk about classified information.

The thing it kind of reminds me of is like when you get together with friends and play a game of touch football, some of the minor rules of how you might play the game aren’t decided before you start. So then something happens for which there is no rule. When someone falls down, are they in fact down, or do they need to be touched? And then there’s a five-minute discussion about what isn’t already settled. What I’m hearing from you with the Disney metaphor and “do you wanna sleep with your clients?” quip is maybe just a human reaction to particularly strange and absurd bureaucratic and magisterial system.
I think that is not an unfair description.