All five men accused of orchestrating the Sept. 11 attacks sat quietly at the Pentagon war court on Monday as lawyers launched into a week of pre-trial hearings - a stark contrast to a defiant May 5 arraignment.
The judge, Army Col. James Pohl, swiftly rewarded them with a ruling that will allow them to voluntary skip attendance day by day for this week's court session - 25 pre-trial motions that haggle over legal issues to set the stage for their death-penalty trial, likely years from now.
Khalid Sheik Mohammed, the accused mastermind, appeared in traditional white garb topped with a black vest and white turban – not the paramilitary style uniform that the prison camps commander had forbade.
His beard was once again red, apparently from henna, as he sat quietly at the defense table. His four alleged co-conspirators in the 2001 al-Qaida terror attacks sat quietly behind him, with none of the evident tension from their 13-hour May 5 arraignment in which the accused refused to cooperate. In May, they sat mum in court as the judge advised them of their rights to defense lawyers, and refused to either don headsets piping in Arabic-English translation or answer the judge's questions.
For Monday's session, the Pentagon had installed a workaround: speakers clamped below each defendant's table that broadcast the simultaneous translation. A Defense Department official could not immediately say how much the new technology had cost at the $12 million expeditionary legal compound.
The court atmosphere was noticeably different than in May, when the accused both ignored the judge and interrupted the session for Muslim prayers. This time, the accused showed signs of cooperating with the process. Both Saudi Mustafa Hawsawi and Yemeni Ramzi bin al-Shibh responded through Arabic translators while the judge questioned them on a conflict-of-interest motion. At issue was whether a Navy defense lawyer, Cmdr. Suzanne Lachelier, could work on Hawsawi's defense team. She was assigned to defend bin al-Shibh at the Bush administration run war court.
"I have no objection for Miss Lachelier to assist my brother Mustafa, if he wants her," bin al-Shibh told the judge, after signing a waiver that neither the prosecution nor the public could see.
Pohl ruled against the prosecution, which wanted Lachelier excluded from legal work on the case. Lachelier, a former federal defender who serves as a Navy Reservist, was not in court.
Mohammed, the alleged ringleader of the 9/11 attacks, never spoke throughout the morning.
The Pentagon's chief war crimes prosecutor Army Brig. Gen. Mark Martins had argued that attendance at their death-penalty trial can't be voluntarily waived because of "awful penalty that could follow." Pohl noted that the Pentagon's own Manual for Military Commissions provides for a voluntary absence after arraignment.
Pohl said he was creating a formula for waiver - prison camp staff wake the accused and ask them if they want to go to court each morning - only for this week's hearings. He said he would revisit the question during more hearings in December.
"I'm ruling that he has a right to waive his presence," Pohl said. "Understand this, it's a waiver for the whole day."
All five men were held in secret CIA prisons, where their lawyers say they were tortured. Defense lawyers argue that the trip to court from the prison camps can be traumatic. The captives are woken before dawn, shackled and have blinders put on their eyes for each early morning trip to the war court compound.
The hearing was a held a day after lawyers for Mohammed's nephew filed an emergency motion to skip Monday's hearings because his father had died in recent weeks. Pohl denied the request. The nephew, Ammar al-Baluchi, 35, sat through the proceedings animatedly talking to his translator. He was the only man among the five to come with his head uncovered.
The nephew's lawyers also asked the judge to order the Pentagon to let al-Baluchi have an International Red Cross video call with his mother, who is believed to be in either Pakistan or Iran. As a former CIA prisoner, his lawyers said, al-Baluchi has never been allowed a video chat with family across a decade of U.S. confinement. Most Guantanamo prisoners do get Red Cross video visits with his family.
This week's hearings were delayed four times: first by the execution of a man in Idaho because Mohammed's lawyer, Boise attorney David Nevin, was defending that man, too. Then the judge agreed to postpone the hearings until after Ramadan.
The court participants were assembled at Guantanamo in August. But a computer outage at the courthouse complex derailed the proceedings by a day, then the Pentagon evacuated the compound back to Washington, D.C., because Tropical Storm Isaac had formed in the Caribbean.
Mohammed, 47, and his alleged accomplices got to Guantanamo in 2006 from years of interrogation in the CIA's secret prison network where, CIA declassified documents disclose, he was waterboarded 183 times. Once here, the U.S.-educated, Pakistani-born Mohammed bragged to a military panel that he orchestrated the 9/11 attacks from "A to Z."
His four co-defendants allegedly trained, funded and arranged travel for the 19 hijackers that killed nearly 3,000 people at the World Trade Center, Pentagon and in a Pennsylvania field in the worst terror attack on U.S. soil.
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