9/11 plotters tell judge of legal woes

Times Staff Writer

Facing the death penalty for their roles in the Sept. 11 attacks, self-described mastermind Khalid Shaikh Mohammed and an alleged accomplice told a judge Thursday that the military commission process was so dysfunctional that they could not file legal motions in their defense or have pretrial documents translated into their native languages.

In separate hearings, Mohammed and Walid bin Attash and their legal advisors ticked off one example after another of a pretrial system they say is barely operating. “We are not in normal situation. We are in hell,” Mohammed told the military judge, Marine Col. Ralph H. Kohlmann.

Some of the defendants’ claims were confirmed by government prosecutors, a Pentagon official and Kohlmann, who said he would look into them.

Last month, Kohlmann granted requests by Mohammed, a Pakistani, and Attash, a Yemeni, to act as their own lawyers in the case, in which they and three other men face a variety of charges in connection with the attacks on New York and Washington in 2001. That means they are entitled to file legal motions and have access to much of the evidence -- like the Justice Department and military prosecutors seeking to convict them -- according to officials from the Pentagon’s Office of Military Commissions, which is overseeing the controversial and unprecedented trials.


Kohlmann acknowledged to both men that he never received motions each of them had written in their detention cells, nor other communications the men wanted the judge to see.

Three letters from Mohammed to his backup legal counsel, written more than a month ago, also were not delivered, according to Mohammed and the three lawyers. Recent court filings and other communications by prosecutors and the judge himself either were never delivered to Mohammed and Attash or were sent in English, not Arabic.

Attash, accused of training some of the hijackers at Al Qaeda camps in Afghanistan, said he received one important six-page filing by prosecutors that had been translated into Arabic -- but not until Thursday morning, nine days after it was filed, as he was walking into the high-security court for his hearing. “I was handcuffed, and I didn’t read it,” he added, prompting the judge to call a recess so that Attash could read it.

Kohlmann appeared taken aback by the assertions and promised to look into them if the two suspects filed court motions requesting that he do so. He said he would consider ordering a mass translation of potentially thousands of court documents.


Several human rights special observers who attended Thursday’s proceedings said there were breakdowns in the system that could take months, if not years, to address. Those problems have already undermined the credibility of the military commission process, they said.

“The whole system is completely imploding,” said observer Anthony D. Romero, executive director of the American Civil Liberties Union. “It is astonishing that they cannot get documents, file legal memos or have things translated for them. Today’s hearing shows that these commissions are just not workable and that Judge Kohlmann realizes the headache he is in for.”

A Pentagon spokesman, Navy Cmdr. Jeffrey D. Gordon, acknowledged some of the problems and said that Joint Task Force Guantanamo “has implemented a process to ensure that filings and legal mail to and from the court are handled appropriately and efficiently.”

The military’s chief prosecutor, Army Col. Lawrence Morris, said authorities were working to ensure that the five suspected terrorists get a fair trial and that those who are acting as their own lawyers get the resources and access to documents they need, as long as it doesn’t jeopardize national security.


Kohlmann had ordered the two hearings, and three others over the last two days, to ensure that Mohammed and Attash understood the consequences of representing themselves. At both hearings Thursday, Kohlmann stressed to the accused men that they would fare better if they allowed the government-appointed legal teams to represent them, especially since the lawyers could file motions, track down witnesses and do other things the defendants could not from their cells.

But Mohammed, in one of many back-and-forths with the judge, said the system was so dysfunctional that “it won’t make a big difference if I reject my lawyer.”

Mohammed and Attash said they still wanted to represent themselves, but with some military and civilian lawyers as standby counsel.

A third suspect, Ramzi Binalshibh, refused to attend his hearing Thursday for unspecified reasons. The judge has ordered a mental competency exam for Binalshibh, who is on government-administered psychotropic drugs, to see if he is fit to act as his own lawyer.


Legal advisors for Mohammed and Attash said the problems with the military commissions went far beyond those the men face while acting as their own lawyers.

Navy Capt. Prescott L. Prince and civilian lawyers David Nevin and Scott McKay said, for instance, that the government has decreed that anything Mohammed says or writes is considered classified, essentially prohibiting them from using it in court filings or in investigative efforts aimed at determining whether he is guilty of the terrorist acts for which he has claimed responsibility.

“There is impediment after impediment after impediment,” McKay said.

Throughout the hearings Thursday, Mohammed and Attash remained polite and responsive, often engaging Kohlmann in discussions about their legal rights.


Mohammed, who has said he wants to “martyr” himself, or be put to death for his self-described role as the orchestrator of the attacks, appeared especially interested in determining how he could oversee his defense.

Attash said: “Any attack I undertook against America or even participated or helped in, I am proud of it and am happy about it.”