Defending ‘the most hated man in the world’
They make an unlikely pair, the world’s most notorious captured terrorist and the Navy captain assigned to defend him against war-crimes charges that could lead to his execution. But together, the two men are quietly embarking on a legal odyssey that could last years, and may ultimately help define the constitutional parameters of the United States’ role in the global war on terrorism.
On three occasions over the last few weeks, Khalid Shaikh Mohammed, the self-described orchestrator of the Sept. 11 attacks, has sat with his legs shackled to a chair in a cramped, windowless briefing room at the Navy base at Guantanamo Bay, Cuba. Mohammed has probably spent most of the last five years in similar leg irons, fielding questions from American officials.
But now, for the first time, the man who has been sitting across from him is a potential ally, a Navy Reserve judge advocate general named Prescott L. Prince.
Prince was recently tapped to be Mohammed’s lead defense lawyer for the military commission proceedings in which he is charged with murder in the deaths of nearly 3,000 people in the 2001 attacks.
In 10 hours of interviews, the two men have sized each other up, talking about themselves, the American justice system and the imminent arraignment of Mohammed and four alleged co-conspirators, scheduled for June 5.
“I call him Mr. Mohammed,” said Prince. “He calls me Mr. Prescott.”
Prince is prohibited from disclosing details of what Mohammed told him in their conversations, but his description of their encounters offers a rare glimpse of a man whose persona has taken on monstrous proportions since his boastful media interview in 2002 about how he masterminded the Sept. 11 attacks. He was captured the following year in Pakistan, and the harsh interrogations he was subjected to while hidden away for three years in the CIA’s secret detention program -- which many think constituted torture -- have sparked a furor over whether the Bush administration violated U.S. and international law.
Prince’s meetings with Mohammed also offer a glimpse into the defense strategy in the most high-profile American terrorism case in the post-Sept. 11 world, a trial sure to be followed by millions when it gets underway, probably many months from now.
Prince, a Southern lawyer who only a year ago was running a small civilian defense practice, expects the case to go on for years and culminate in a landmark Supreme Court decision. To him, it’s not only the welfare of his infamous client that matters, but also protecting the integrity of the Constitution, which he says the Bush administration has trampled by coercing information out of Mohammed and subjecting him to a system of military justice that is stacked against him.
“I think it’s the constitutional case of our time,” Prince, 53, said in a recent interview in his office, U.S. and Navy flags front and center on his desk. “Because in the 221st year of America, the question is whether the Constitution applies to the government.”
Mohammed, a U.S.-educated engineer who is believed to be 43 or 44, was once the operations chief and third in command of Al Qaeda. In a preliminary court proceeding at Guantanamo last year, he claimed credit for dozens of terrorist plots and attacks -- bragging, for instance, about how he orchestrated Sept. 11 “from A to Z” and how he personally beheaded Wall Street Journal reporter Daniel Pearl because he was a Jew.
Mohammed may be the killer he claims to be; during their meetings, Prince said, he was a model client and the picture of decorum and politeness. “He does not come across as angry or bitter or hateful,” said Prince. “He is unquestionably involved and engaged in his defense.”
So far, Mohammed has not formally committed to allowing Prince and a still-forming legal team to represent him. And Mohammed has not indicated how he wants to plead at his arraignment. But it is Prince’s impression that he is considering supporting what is likely to be a protracted legal battle waged by a small team of military and civilian lawyers against the might of the U.S. government.
“I have no idea whether he did even half of those things he is accused of doing,” Prince said. “But if he did commit those offenses, there are still issues of whether this court has jurisdiction, whether he is an enemy combatant who should be tried in a tribunal of this nature.”
Expecting an appeal
Prince said he was framing the defense case with an eye toward appealing the decision made to try Mohammed in a military commission -- and toward appealing whatever verdict comes from it. He and other lawyers for the defendants are also moving to have the case thrown out or transferred to a military court-martial or even federal court, where Mohammed was indicted in absentia in 1996 on suspicion of plotting to bomb U.S. airliners over the Pacific.
“He believes his treatment has been illegal,” Prince said. “I believe it’s been illegal too. And I personally believe that he cannot, as a result of all these things, get a fair trial.”
Air Force Brig. Gen. Thomas W. Hartmann, the legal advisor at Guantanamo Bay, disputed that view. “The system that we have here, the military commission system, is extraordinarily fair in terms of the number of protections it provides for any of the accused,” he said.
Jeffrey F. Addicott, a former senior Pentagon advisor to the military commissions, agreed that the case almost certainly would end up at the Supreme Court. Addicott, a law professor and director of the Center for Terrorism Law at St. Mary’s University in Texas, predicted a legal battle involving some of the most contentious issues in the nation’s counter-terrorism campaign, including what constitutes torture and what kind of evidence can be used against suspected terrorists.
Prince and his associates, Addicott said, “are good defense counsel, and they will throw as much mud on the wall as they can and see what sticks.”
A year ago this week, Prince was working in Richmond, Va., looking forward to some “us time” with his wife after their two daughters graduated from high school and went off to college. He enjoys yardwork and long-distance runs.
When he was recalled to active duty, “I assumed I’d get a desk job in Washington,” said Prince, who smiles frequently, exposing a slight gap between his two front teeth.
Instead, he was sent to Iraq for six months as a Navy legal advisor for detainee operations. Superiors knew of his background as a veteran defense attorney with a reputation for tenacity and his recent two-year stint as a senior Reserve advisor on military prosecutions. While he was still in Iraq last December, they asked if Prince would consider representing one of the high-value detainees who might soon be facing charges in the Sept. 11 attacks, perhaps even Mohammed himself.
“They said, ‘This may be perceived as the Nuremberg of our times, and people might think ill of you for doing this,’ ” Prince said. “They asked, ‘How would you deal with people calling you a traitor, defending the most hated man in the world?’ ”
That question was easy, Prince recalled: “I said, ‘I’m a defense attorney; I get that all the time.’ ”
Prince was appointed by the Defense Department, and in January moved into the defense team’s unmarked working quarters in a nondescript commercial low-rise in Rosslyn, Va., a suburb of Washington near the Pentagon. He said he soon began to feel badly outgunned by the big team of government lawyers and investigators that had for years been building the case against Mohammed.
Prince has to share a paralegal with another detainee lawyer, and he still hasn’t gotten top-secret security clearances for Scott McKay and David Nevin, the two Idaho-based civilian attorneys who, along with Army Lt. Col. Michael Acuff, make up his legal team.
He said he had trouble getting the Pentagon to take him to Guantanamo and, once there, to allow him to see his client. And, he said, all of his requests for discovery material have been denied.
He said he had also been hamstrung by institutional obstacles, including evidentiary rules favorable to the prosecution that will probably allow the use of hearsay and confessions and other evidence obtained through coercion.
Prince said a protective order he had to sign prohibited him from discussing publicly anything his client said to him, even to people who could potentially be corroborating witnesses. And, he said, he is prohibited from taking his notes with him after interviews with Mohammed, making it more difficult to follow up on the information.
Hartmann, the legal advisor at Guantanamo, said he could not discuss any specific pending case, including Mohammed’s. He did say that the Pentagon was devoting extraordinary resources to the defense of the five defendants and that their combined legal team was larger than that of the prosecution.
Hartmann also said that although the protective order was in place to safeguard classified information, he was unaware of any restrictions on defense lawyers using the information to pursue leads that could help their clients. And he said the military commissions were working to improve lawyers’ access to classified materials.
Meanwhile, Prince is trying to build rapport with a client with whom he has few, if any, mutual interests -- a client with an extreme distrust of anyone working for the U.S. government, especially someone wearing a military uniform. The CIA has admitted that Mohammed is one of three suspected Al Qaeda leaders that it subjected to waterboarding, a technique that simulates drowning.
The first meeting between attorney and defendant took place April 24. As he approached the interview room, Prince stopped. “I took a deep breath and said, ‘Oh my word, I’m about to meet Khalid Shaikh Mohammed,’ ” Prince recalled. “I walked in and introduced myself. I offered my hand, and he shook it. And then I was just working with a client.”
Prince said Mohammed was smaller than he had imagined. He gave his business card to his new client, who put it in his stack of legal papers, and discussed his rights. Prince said he told Mohammed that, despite his military uniform, he and his legal team were there to defend him to the hilt, as part of an American justice system that guarantees legal representation for all.
Prince also told Mohammed that he believed the military commission proceedings were inherently unfair and that he would try to get Mohammed’s confessions thrown out, along with other evidence reportedly obtained through coercive techniques.
And he assured him that his team would fight the case on appeal, no matter how long it took.
Mohammed listened, and when Prince was done, they began a long dialogue, talking for several hours about the nuts and bolts of the commission proceedings.
From the start, Prince’s trust-building efforts were helped by the fact that Mohammed speaks English well and does not require a translator. Mohammed, who graduated from North Carolina Agricultural and Technical State University, “speaks better English than most taxi drivers in the D.C. area,” Prince said. “Sometimes he will search for a word, and ask if a certain word is proper.”
A mental disorder?
Prince said that although Mohammed usually seems sharp and attentive, Prince is beginning to see indications that Mohammed might have some kind of disorder that distorts his judgment.
“It is very likely that he is cognitively impaired,” said Prince, who has a master’s degree in psychology as well as a law degree. “I can’t point to one thing, but I do have concern as to his functioning level.”
That could explain why Mohammed has boasted about being behind so many terrorist plots, Prince said, including some in which U.S. intelligence officials believe he played no role. Prince said he planned to raise the issue at trial and to seek a psychological evaluation of Mohammed, including a neuropsychiatric exam, to see if the suspected impairment was a result of his incarceration.
Prince said he considered it his mission as a military officer and a lawyer to represent Mohammed as best he can, even if his client is as reprehensible as he claims publicly to be. He said there was much he still did not know about Mohammed, including whether Mohammed planned to use the trial as a soapbox.
But, Prince added with a smile, “in the past, he was not shy about speaking, now was he?”
(BEGIN TEXT OF INFOBOX)
In January 2002 the U.S. military sent the first group of detainees to Guantanamo Bay, Cuba. President Bush decided these terrorism suspects were not entitled to be treated as prisoners of war under the Geneva Convention.
A month later, lawyers for the Center for Constitutional Rights filed a habeas corpus petition on behalf of several detainees who sought a court hearing. In June 2004 the Supreme Court ruled that the detainees were entitled to go to court, but the decision did not spell out how judges were to handle these cases.
The Pentagon agreed to give detainees status review hearings to decide whether to hold them as “enemy combatants.” Separately, the military moved ahead with plans to try some of the detainees as war criminals, but in June 2006 the Supreme Court rejected the rules for these tribunals.
Then, in October 2006, Congress passed the Military Commissions Act, which authorized the military trials and said enemy combatants could not have access to the civilian courts. That law is being challenged in a case pending before the Supreme Court.
Source: Times research