United States V. Khalid Sheikh Mohammed - Transfer of The Case Back To A Military Commission

Transfer of The Case Back To A Military Commission

On 7 January 2011 US President Barack Obama signed National Defense Authorization Act which explicitly prohibits the use of US Defense Department funds to transfer detainees from Guantanamo Bay to the United States or other countries. It also bars Pentagon funds from being used to build facilities in the United States to house detainees, as the president originally suggested. The move essentially barred the administration from trying detainees in civilian courts. The president objected to the provision in the bill before signing it, calling it "a dangerous and unprecedented challenge to critical executive branch authority" but also said his team would work with the US Congress to "seek repeal of these restrictions."

On 4 April 2011 Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other 9/11 terror suspects will face a military trial at the Guantanamo Bay detention facility. In announcing his decision, Holder blasted Congress for imposing restrictions on the Justice Department's ability to bring the men to New York for civilian trials. "After thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court. I stand by that decision today," Holder said. "As the president has said, those unwise and unwarranted restrictions (imposed by Congress) undermine our counterterrorism efforts and could harm our national security. Decisions about who, where and how to prosecute have always been - and must remain - the responsibility of the executive branch." Holder insisted, "We were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators - one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor." He added, "Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over 200 years." Holder had promised to seek the death penalty for each of the five men and on 4 April he warned that it is an "open question" if such a penalty can be imposed by a military commission if the defendants plead guilty.

On 5 May 2012 the trial started. A small number of 9/11 victims' relatives were attending the hearing. Proceedings were delayed as one of the defendants, Waleed bin Attash, appeared in court while restrained in his chair. The restraints were later removed after defence counsel had given assurances that he would "behave". Khalid Sheikh Mohammed refused to answer the judge's questions. All the defendants refused to wear the earphones that provide translation into Arabic. Then an Arabic translator present in court ensured that the accused could follow proceedings.

The trial is conducted in a specially-built courtroom at Guantanamo. Witnesses may see the proceedings through soundproof glass and hear an audio feed that is time-delayed 40 seconds. When classified material is mentioned in the court, the Court can press a censorship button to cut the audio feed to the observers and "illuminate a red light on the judge's bench." However, "it became entirely unclear who is in charge of pressing that button and by extension, who or what entity is really running this trial or monitoring the proceedings externally."

On Jan. 28 2013, during a pretrial hearing, "the sound system in the courtroom was suddenly cut, to the surprise of even the judge", as if the "censorship button" was pressed, audio feed was cut and the red light was illuminated. When the audio feed resumed, trial Judge Col. James L. Pohl said, "Note for the record that the 40-second delay was initiated, not by me. I’m curious as to why. If some external body is turning the commission off under their own view what ought to be with no reason or explanation, then we are going to have a little meeting about who turns that light on or off." The Miami Herald reported that "The judge was clearly furious."