by Stephen Lendman
At issue is prosecuting five 9/11 suspects: Khalid Sheikh Mohammed (KSM: the alleged mastermind), Ramzi bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali, and Mustafa al Hawsawi.
Defense lawyer James Connell announced a tentative May 2013 trial date. A scheduled one hasn't been named. Army Brig. General Mark Martins expects months of defense motions delaying it.
"I am getting ready for hundreds of motions because we want them to shoot everything they can shoot at us," he said.
On May 5, their Guantanamo arraignment was held. It took 13 hours. They remained mute. They refused to respond to alleged charges for good reason. Serious questions remain regarding their guilt, including KSM. More on why below.
On April 4, 2011, Attorney General Eric Holder said:
"In November 2009, I announced that (KSM) and four other individuals would stand trial in federal court for their roles in the" 9/11 attacks."
"After consulting with prosecutors from the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue (was) federal court. I stand by that decision."
Months of inaction let Congress "intervene and impose restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue."
"(T)hose restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer....We must bring the conspirators to justice."
On April 4, a Department of Justice press release headlined, "Justice Department Refers Five Accused 9/11 Plotters to Military Commissions," saying:
"As the indictment unsealed today reveals, we were prepared to bring a powerful case against the 9/11 defendants in federal court, and had this case proceeded as planned, I'm confident our justice system would have" prevailed.
A 10 count, 80 page indictment accused them of:
• "conspiracy to commit acts of terrorism transcending national boundaries;
• acts of terrorism transcending national boundaries;
• conspiracy to commit violent acts and destroy aircraft;
• violence on and destruction of aircraft;
• conspiracy to commit aircraft piracy;
• aircraft piracy;
• murder of US officers and employees;
• destruction of property by means of fire and explosives; and
• conspiracy to kill Americans."
At the time, ACLU Director Anthony Romero called Holder's "flip-flop devastating for the rule of law." Military commissions have no legitimacy. They're kangaroo courts, not real ones.
The 2006 Military Commissions Act (MCA) authorized them. Congress enacted sweeping unconstitutional powers to detain, interrogate, and prosecute alleged suspects and collaborators (including US citizens).
They can be tortured and held without evidence (charged or uncharged) indefinitely in military prisons. Habeas and other constitutional protections are denied.
Those charged are guilty by accusation. Presidents have diktat power to try suspects in military commissions or detain them indefinitely uncharged. On March 1, 2003, KSM was arrested in Rawalpindi, Pakistan. Some believe it was a year earlier in Karachi.
Over 10 years later, his trial is tentatively scheduled to begin next year. It may be delayed further. Torture extracted evidence against him and co-defendants will be used. Throughout their detention, they were isolated with no counsel. KSM was horrifically treated.
He was isolated at black sites for over two years. He spent time at Afghanistan's "Dark Prison" near Kabul International Airport. It's infamous for its pitch darkness and brutalizing torture.
He was also held in a facility north of Kabul called the "Salt Pit." One detainee was stripped naked and left chained to the floor in freezing temperatures to die.
In Afghanistan, KSM was hog-tied, stripped naked, hooded, and tortured. He was kept in a prolonged state of sensory deprivation for months. He was waterboarded over 180 times.
He was chained naked to a metal ring in his cell in a painful crouch in intense heat and extreme cold. He was also bombarded with deafening sounds round the clock for weeks.
He was thrown against walls forcefully. The procedure is called walling. At other times, he was suspended from the ceiling by his arms so his toes barely touched the ground.
He was beaten with electric cables and given electric shocks.
He was forced to endure a variety of stress positions for extended periods. Excruciating pain was inflicted.
In 2006, he was sent to Guantanamo where torture continued. His co-defendants received similar treatment. The ICRC said high-level detainees were repeatedly tortured. To extract a confession, KSM was told:
"We're not going to kill you. But we're going to take you to the brink of your death and back."
After years of horrific torture, mistreatment, and deprivation, it's astonishing he's still alive to be tried. Doing so in military courts is scandalous. At issue is their illegitimacy. It's also about using torture extracted evidence.
Torture is prohibited at all times, under all circumstances, with no allowed exceptions. Evidence so obtained is unreliable and inadmissible. Civil courts won't allow it or shouldn't.
According to MCA provisions, it's permitted. Appeals are prohibited. Convictions are certain. Executions will follow. Justice will be denied. The real 9/11 co-conspirators remain free. They're in charge of condemning innocent suspects to death.
Two earlier Supreme Court decisions ruled torture extracted evidence constitutionally inadmissible. In Brown v. Mississippi (February 1936), the court held:
"The rack and torture chamber may not be substituted for the witness stand."
The ruling cited an earlier Fisher v. State (November 1926) High Court decision, stating:
"Coercing the supposed state's criminals into confessions and using such confessions so coerced from them in trials has been the curse of all countries."
"It was the chief iniquity, the crowing infamy of the Star Chamber (the notorious 15 - 17th century English court), and the Inquisition, and other similar institutions."
"The Constitution recognized the evils that lay behind these practices and prohibited them in this country wherever the court is clearly satisfied such violations exist, (and) it will refuse to sanction such violations and will apply the corrective."
In other words, confessions and alleged evidence obtained under torture are unreliable, suspect, and inadmissible. That was then. This is now. KSM and co-defendants face certain unjust convictions.
On May 5, they stayed silent for good reason. Some call their proceedings the "trial of the century." Independent jurists call it a sham.
Defense lawyers raised issues of torture and mistreatment. Military judge Colonel James Pohl dismissed them. Also requests to wear civilian clothes was denied.
Attorney David Nevin said KSM won't address the court. "I believe he's deeply concerned about the fairness of the proceedings."
Lawyers were told earlier they're prohibited from raising torture accusations. They're central to the case but can't be introduced.
Nonetheless, Nevin asked Pohl whether KSM's "treatment during incarceration, which consisted of torture, is appropriate mitigation" for lesser punishment. Pohl declined to answer.
Nevin also asked if he had "any experience with the issue of torture of prisoners?" Pohl refused to use the word torture. He said only that he's been involved in detainee abuse cases after the Abu Ghraib scandal. Several low-level soldiers were prosecuted. Higher-ups ordering their behavior remain uncharged.
Bin Attash's attorney, Cheryl Bormann, said her client was forcibly dragged from his cell to the hearing. Scars on his arms bear testimony. Bin Attash tried removing his shirt to show them. He was ordered to keep it on.
Al-Shibh was the only one to speak. He interrupted an exchange between his lawyer and Pohl with comments on Muammar Gaddafi. When Pohl told him to be quiet, he continued in broken English, saying:
"Maybe they will kill me and say I committed suicide. Maybe you are not going to see me any more. This is the way that we are treated in this camp."
A handful of family members who lost loved ones on 9/11 were chosen by lottery to attend the proceedings. Those of defendants are considered non-persons. KSM and others are guilty before verdicts are rendered.
Long ago justice was compromised in US civil courts. Today, ordinary people haven't a chance. Imagine what's ahead for KSM and co-defendants. Executions will follow convictions.
Given what they've been through with no possibility of freedom, they may yearn for ending their long ordeal.
Between now and then, Washington will make it tough as possible on them. That's how police states operate. On a global scale, America's by far the worst.
Stephen Lendman lives in Chicago and can be reached at firstname.lastname@example.org.
His new book is titled "How Wall Street Fleeces America: Privatized Banking, Government Collusion and Class War"
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge discussions with distinguished guests on the Progressive Radio News Hour on the Progressive Radio Network Thursdays at 10AM US Central time and Saturdays and Sundays at noon. All programs are archived for easy listening.