Arraignment Ends as Legal Teams Gird for Long 9/11 Trial

By Karen Parrish

American Forces Press Service

NAVAL STATION GUANTANAMO BAY, Cuba, May 6, 2012 – Defense and prosecution teams said today they expect the trial of five alleged 9/11 co-conspirators to take many months or years, while family members of those killed Sept. 11, 2001, said they’re glad the trial is in the military’s hands.

Yesterday’s roughly 13-hour arraignment here of Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi was the first chapter of what attorneys on both sides describe as an epically complicated trial to come.

Army Col. James Pohl, the judge in the case, yesterday set the first motions hearing for June 12. Army Brig. Gen. Mark Martins, chief prosecutor, said he expects “hundreds of motions” during the proceedings.

“For so many determined people involved in this trial, the pursuit of justice is worth every moment spent,” he said.

Martin noted many of the motions the defense team has filed and likely will file involve classification issues. The motions process -- in which either side can file, the other side responds, and finally the judge rules – serves to “tee up” a common approach to contested issues, the general said.

Martins acknowledged government investigations have concluded defendants were tortured during the early stages of their confinement. That greatly complicates the case, he said, but doesn’t lessen the trial’s importance. Torture is deplorable and shameful, he said. “The remedy is not to just dismiss all charges; it’s harder than that,” he added.

Martins said the government’s case will not include any evidence resulting from torture. He added he doesn’t agree with defense attorneys’ contention that classification rules prevent them from discussing their clients’ mistreatment or torture with them.

“They can talk to their clients about anything,” the chief prosecutor said. What attorneys can’t do, he said, is provide their clients with information that involves “sources and methods”: locations of detention facilities; identities of cooperating governments; identities of anyone involved in the capture, transfer, detention or interrogation of detainees; interrogation techniques applied to individual detainees unless that information has been declassified; and conditions of confinement.

“If, in those five categories, there’s material that relates to source and method that can still protect people from terrorist attacks, … then that’s going to be classified, and we’re going to work to protect it,” he said. Typically, that sort of information would be discussed in closed court, he said.

Defense attorneys have a “healthy skepticism” about the level of transparency possible in the case, Martins noted.

“What we’re trying to do is put the question of the fate of these individuals – their guilt or innocence … and the appropriate sentence – to a panel of 12 jury men and women,” he said.

Defense attorneys differed in the views they shared with reporters today on yesterday’s arraignment.

James Harrington is “learned counsel” for Shibh, which means he is experienced in death penalty cases. Under military commissions rules, each defendant in a capital case is assigned a learned counsel.

While the arraignment was very long, Harrington said, “I could say it went smoother than some people had anticipated. … Things are set to progress.”

Defense teams’ jobs are to defend their clients, regardless of public opinion or the sympathy the attorneys feel for 9/11 victims’ families, he added. “[The defendants] are entitled to a fair trial,” he said. “It’s our obligation to try and get them a fair trial.”

Navy Cmdr. Walter Ruiz, learned counsel for Hawsawi, said yesterday’s proceedings were “terrible.”

“We had some measure of hope” that legal issues raised by defense attorneys would be heard, Ruiz said. “They were not.”

He said that after the arraignment yesterday, he discussed the likely duration of the coming hearings and eventual trial with a colleague. Ruiz recounted what he told his coworker: “I said, ‘I didn’t believe you when you said I might retire from here.’ And then I said, ‘I may never have another legal job.’”

He added he hopes the second trial for the accused – the first was suspended, and the military commission process changed – doesn’t repeat the mistakes of the earlier proceedings.

“What is important to understand is that the reason this process has to drag on … is because [proceedings under the previous rules] tried to cut corners constitutionally … [and] procedurally,” Ruiz said.

While attorneys on both sides predict a hard grind ahead, several family members of 9/11 victims who attended the arraignment said they are glad the proceedings happen here.

Mary Henwood and her sister, Tara Henwood-Butzbaugh, attended the proceedings in memory of their brother, John Henwood, who was 35 when he was killed in the World Trade Center’s Tower 1.

“He was murdered that day. He was terrorized, and he was murdered,” she said. To the question of whether military commissions are appropriate to the case, she replied, “Absolutely.”

Henwood said she has met with the prosecution and has seen the trial facilities here. “I feel very comfortable that this is finally happening,” she said.

Cliff and Christina Russell came here in honor of Cliff’s brother, Stephen, a New York City firefighter who died in Tower 1.

“I’m comfortable with it being [a capital case], … I’m comfortable with it being military, and I’m comfortable with it being here, as opposed to being in [a] federal courthouse,” he said.

Russell added he came to see the proceedings not out of a desire for vengeance, but for “some kind of psychological satisfaction.”

Eddie Bracken came to Cuba to pay tribute to his sister, Lucy Fishman, who died in Tower 2. Bracken said a fair and just trial for the accused will show the world what America is based on.

“Do I respect the people that are defending them? Yes,” he said. “It’s about our justice system and how we uphold it.”

On the location, Bracken said, “I’d rather have it here. This is the safest place in the world.”

Bracken offered a comment he’d direct to Defense Secretary Leon E. Panetta if he were here: “Your people are doing a great job.”

Martins said the reading of the charges in yesterday’s arraignment provided a “stirring reminder” of the crimes that occurred Sept. 11, 2001.

He emphasized that as in any U.S. court proceeding, charges in the 9/11 case are only allegations. “The accused are presumed innocent, unless and until proven guilty beyond a reasonable doubt,” Martins said.