United States v. Khalid Sheikh Mohammed, et al.

United States v. Khalid Sheikh Mohammed, et al. is the upcoming trial of five alleged Al-Qaeda members for aiding the September 11, 2001 attacks. Charges were announced by Brigadier General Thomas W. Hartmann on February 11, 2008 at a press conference at the Pentagon. The men charged are Khalid Sheikh Mohammed, Mohammed al Qahtani, Ramzi Binalshibh, Ammar al-Baluchi, and Mustafa al-Hawsawi.

Charges
In an 88-page complaint, the group was charged under the military commission system, as established under the Military Commissions Act of 2006, with attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, terrorism, and providing material support for terrorism. If convicted, the five will face the death penalty.

The charges include 2,973 individual counts of murder — one for each person killed in the 9/11 attacks.

The U.S. government is seeking the death penalty, which would require the unanimous agreement of the commission judges.

Human rights groups, including Amnesty International, Human Rights Watch and the Center for Constitutional Rights, and U.S. military defense lawyers have criticised the military commissions for lacking necessary rights for a fair trial. Critics generally argue for a trial either in a federal district court as a common criminal suspect, or by court-martial as a prisoner under the Geneva Conventions which prohibit civilian trials for prisoners of war. Mohammed could face the death penalty under any of these systems.

The Pentagon insisted that Mohammed and the other defendant would receive a fair trial, with rights "virtually identical" to U.S. military service personnel. However, there are some differences between U.S. courts-martial and military commissions.

The U.S. Defence Department has built a $12 million "Expeditionary Legal Complex" in Guantánamo with a snoop-proof courtroom capable of trying six alleged co-conspirators before one judge and jury. Media and other observers are sequestered in a soundproofed room behind thick glass, at the rear. The judge at the front and a court security officer have mute buttons to silence the feed to the observers' booth—if they suspect someone in court could spill classified information.

The Trial in a Military Commission
The trial, presided over by judge Ralph Kohlmann, began on June 5, 2008, with the arraignment. About thirty-five journalists watched on closed-circuit TV in a press room inside a converted hangar, while two dozen others watched through a window from a room adjacent to the courtroom.

Mohammed insisted he would not be represented by any attorneys. The other detainees quickly followed suit and said they too wanted to represent themselves. One of the civilian attorneys Mohammed spurned, David Nevin, later told the Associated Press that he would attempt to meet with Mohammed to "hear him out and see if we can give him information that is helpful."

Mohammed was careful not to interrupt Kohlmann. He lost his composure only after the Marine colonel ordered several defense attorneys to keep quiet "It's an inquisition. It's not a trial," Mohammed said in broken English, his voice rising. "After torturing they transfer us to inquisition-land in Guantanamo."

He explained he believes only in religious Sharia law and railed against U.S. President George W. Bush for waging a "crusade war." When judge warned Mohammed that he faces execution if convicted of organizing the attacks on America, Mohammed said he welcomes the death penalty. "Yes, this is what I wish, to be a martyr for a long time," Mohammed declared. "I will, God willing, have this, by you."

A sound feed to journalists from the courtroom was turned off twice.

The sound was also turned off when another defendant discussed early days of his imprisonment. Judge Ralph Kohlmann said that in both cases sound was turned off because classified information was discussed.

On September 23, 2008, in the voir dire process, Mohammed questioned the judge on his potential bias at trial. "Glaring and poking an occasional finger in the air," Mohammed told Kohlmann, "The government considers all of us fanatical extremists," and asked, "How can you, as an officer of the U.S. Marine Corps, stand over me in judgment?" Insisting that he was attempting to work out if Kohlmann was a religious extremist, he continued: "[President] Bush said this is a crusader war and Osama bin Laden said this is a holy war against the crusades. If you were part of Jerry Falwell or Pat Robertson’s group, then you would not be impartial."

For his part, Kohlmann attempted to maintain his dignity, explaining that he was currently unaffiliated with a church "because I’ve moved so often." He added that he had previously worshipped at "various Lutheran churches and Episcopal churches."

Mohammed then proceeded to ask Kohlmann about his views on torture. As part of the background materials supplied to him — or made available to the civilian lawyers who are voluntarily assisting him in his defense — he referred to an ethics seminar that Kohlmann had conducted at his daughter’s high school in 2005, in which the students had been asked to consider their responses to a “Ticking Time Bomb” scenario. Based on a fictional proposition that a bomb is about to go off, and an unwilling captive knows its location but is unwilling to disclose the information, the scenario is widely used by proponents of “enhanced interrogation techniques” to justify the use of torture.

Kohlmann explained that he encouraged the debate as part of "a complex question that might be dealt with differently if someone were specifically trying to save the nation or just looking at it from an ethical sense or just looking at it from a legal sense," and dismissed a combative question from Mohammed — "It seems that you are supportive of the use of torture for national security?" — by stating, "I have no idea where that would come from."

On October 12, 2008, Kohlmann ruled that Khalid Sheikh Mohammed, and his four co-charged, should be provided with laptops, so they can work on their defenses.

In November 2009, according to an Administration official, Mohammed was being transferred from Guantanamo Bay to New York to face a Federal Trial. Four other detainees will be facing trial in front of civilian federal court, as well.

On January 22, 2010, The Pentagon officially dropped military charges against Mohammed and the four other alleged conspirators, clearing the path for likely transfer from Guantanamo to the United States to face charges in a civilian federal court.

White House announces position on his guilt
The Obama White House announced that it expects Mr. Mohammed to be found guilty and executed. "Khalid Sheikh Mohammed is going to meet justice and he's going to meet his maker. He will be brought to justice and he's likely to be executed for the heinous crimes he committed," said White House spokesman Robert Gibbs on CNN The White House spokesperson's statement has been criticized as violating the principle of the presumption of innocence and has been characterized as egregious by an attorney of Guantanamo Bay detainees.

Kohlmann unexpectedly replaced
Kohlmann was scheduled to retire in 2009. In November 2008, he was unexpectedly replaced by Stephen Henley.

Possible guilty plea
On December 8, 2008, Khalid Sheikh Mohammed and his four co-defendants told the judge that they wished to confess and plead guilty to all charges. The plea will be delayed until mental competency hearings for Mustafa Ahmad al-Hawsawi and Ramzi Binalshibh can be held; Mohammed said, "We want everyone to plead together." Spencer Ackerman, writing in the Washington Independent, reported that Presiding Officer Stephen Henley had to consider whether he was authorized to accept guilty pleas.

Transfer of the Case to a Civilian Court
On 13 November 2009 US Attorney General Eric Holder announced that Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali and Mustafa Ahmed al-Hawsawi will all be transferred to the U.S. District Court for the Southern District of New York for trial. He also expressed confidence that an impartial jury would be found "to ensure a fair trial in New York."

On 21 January 2010 all charges have been withdrawn in the military commissions against the five suspects in the Sept. 11, 2001 terror attacks being held at Guantanamo Bay. The charges were dropped "without prejudice" - a procedural move that allows federal officials to transfer the men to trial in a civilian court and also leaves the door open, if necessary, to bring charges again in military commissions.

In February 2010 Fox News reported that the legal counsel of Khalid Sheikh Mohammed, and the legal counsel of several other captives, was halted without warning. The attorneys had made the trip to Guantanamo in the usual manner -- a trip that requires advising authorities of the purpose of their trip. However, upon their arrival in Guantanamo, they were informed they were no longer allowed to see their clients. They were told that letters to their clients, telling them that they had travelled to Cuba, to see them, could not be delivered, as they were no longer authorized to write to their clients. Camp authorities told them that since the charges against their clients had been dropped, while the Department of Justice figured out where to charge them, they no longer needed legal counsel. Camp authorities told them that, henceforward, all access to the captives had to be approved by Jay Johnson, the Department of Defense's General Counsel. Fox reported that during earlier periods when the charges had been dropped the captives had still been allowed to see their attorneys. Fox claimed that questions they asked camp authorities lead to the captives' access to their attorneys being restored.