Sept. 11 defendants can’t be forced to attend hearings, judge says

— Pretrial hearings for Khalid Shaikh Mohammed and four other alleged top Al Qaeda terrorist operatives opened Monday with a ruling that the defendants cannot be forced to attend the legal proceedings at the U.S. naval base at Guantanamo Bay, Cuba.

The decision by Judge James L. Pohl came after Mohammed and his codefendants sat quietly and respectfully during the opening day of testimony at Guantanamo, sharply different from their courtroom protests during their arraignment last spring.

In May, the defendants — who face the death penalty for their alleged involvement in the Sept. 11 attacks — sought to disrupt the proceedings. One detainee was restrained, several refused to listen to Arabic translations on headphones and some outright ignored the judge. Two abruptly stood to pray.


But on Monday, all of them remained silent, led by Mohammed. He wore traditional white robes and turban, his long, thick beard dyed red. His four “brothers” sat silently behind him next to their own legal defense teams.

The proceedings were relayed by video to reporters at Ft. Meade.

Mohammed is accused of masterminding the 2001 attacks, serving under Al Qaeda leader Osama bin Laden. The other defendants are Ramzi Binalshibh, the alleged manager of the cell that carried out the attacks; Walid bin Attash, an alleged Al Qaeda training camp steward; and Mustafa Ahmed Hawsawi and Ammar al Baluchi, aka Ali Abdul Aziz Ali, alleged Al Qaeda financiers.

Monday was the opening day in a weeklong pretrial hearing dealing with 25 legal disputes in the only trial arising from the Sept. 11 terrorist attacks. The defendants are named in 87 charges including conspiracy, murder, aircraft hijacking and terrorism. About 3,000 people died when hijacked airliners crashed into the World Trade Center, a Pennsylvania field and the Pentagon. A trial is tentatively set for May.

The government asked the judge to force the five defendants to appear at all court hearings and the trial, and to prohibit them from staying in their jail cells to protest the military commission trial.

Brig. Gen. Mark Martins, the chief prosecutor, argued that under the military commission rules, the defendants had no “right to refuse” to attend. “The government should not be forced to proceed against empty chairs,” Martins said.

But defense lawyers said the defendants should not be compelled to appear. “There may be reasons why our clients don’t want to come to court on a particular day,” said James Harrington, a Binalshibh attorney. “Our clients may believe they don’t want anything to do with this court, that they don’t recognize the court.”

Air Force Capt. Michael Schwartz, representing Attash, said: “If my client feels like this process allows him to adequately defend himself, he would like to be here. But when the government says this process is humane, we should have the opportunity to refute that.”

He said the government wanted them there to give the proceedings “the appearance of justice.”

Pohl ruled that the defendants “can choose to voluntarily not attend a session.”

The judge, an Army colonel, read each of them a separate “statement of understanding.” Under it, each morning the defendants would sign the document if they wished to remain in their holding cells. From there, they could monitor the proceedings on a video feed.

Each defendant agreed to the arrangement, even when the judge told them the case would continue if they were to escape from the terrorist prison at Guantanamo Bay. “Though your chances may not be very high,” the judge added.

That drew a response from Binalshibh. “Dealing with the guard is very difficult,” he said. “The guards can be very problematic.”

Baluchi joked about the idea of one of them escaping the heavily fortified bay prison. “I’ll be sure to leave a note when I go,” he told the judge.

Mohammed agreed to the arrangement but added, “I don’t think there’s any justice in this court.”

Also Monday, Hawsawi asked for an extra attorney who specialized in capital punishment to help him avoid the death penalty. Speaking through a translator, he told the judge he wanted David A. Ruhnke, a New Jersey lawyer, to assist in the complicated case.

In another matter, prosecutors complained that Navy Cmdr. Suzanne M. Lachelier has a conflict of interest because she helps defend Hawsawi even though she earlier represented Binalshibh.

But Binalshibh and Hawsawi said they were not concerned about any apparent conflicts. “I have no objection for Ms. Lachelier to assist my brother Mr. Hawsawi if he wants her,” Binalshibh told the judge.

Pohl took both matters under advisement.