At the trial of KSM et al., Guantánamo Bay, Cuba
KSM is praying. He has pulled his chair out from the long table and spread a prayer rug out before it. He stands on the rug in gray socks, facing the corner of Courtroom II. He bows at the waist, then the knees. He settles down on his haunches. His forehead kisses the rug. It is said that he has a mark on his forehead, from all the praying, but I am in the gallery and cannot see it from thirty feet away. He stands, waves his hands beside his ears, palms forward. He looks over his left shoulder to one of his co-Accused, Ramzi bin al-Shibh. Ramzi follows.
KSM is forty-seven years old. He looks older. He has grown his beard long, brushed it out, and dyed it red. With his dark eyes, this gives him the appearance of a small red panda. He is wearing a white turban and a baggy white shalwar kameez. On top he wears a camouflage vest, the subject of some controversy. One of his attorneys said the vest is like the ones he wore as he “distinguished himself on the battlefield” in Afghanistan and Bosnia. The clothes seem rather new. Sixteen soldiers are formed in three rows to keep watch over the lunchtime prayer. They are keeping what you might call a respectful distance. KSM bows. He bows again. Ramzi follows.
The young Public Affairs Officer sitting next to me in the gallery has been chatting with another soldier about life at Guantánamo Bay Naval Base. There are boat trips, drive-in movies, Pilates. The officer’s current detail guarding the detention camps is not so bad, she tells the other soldier — there is lots of downtime for hanging out and playing cards. She turns to me and says: “They’re very careful not to have people in there during prayer times. So we don’t disturb ’em.”
KSM turns and faces us. Despite the three panes of soundproof Plexiglas between us, the mutual awareness of presence is suggestive of what it might be like to be in the same room. His face is dark. From thirty feet away the heavy brows and the folds around the mouth combine into a dark supercontinent. I lower my notebook and make like I am looking at nothing in particular, as though we were on the subway. Instead of the hatred I am supposed to feel, I feel afraid.
KSM stares a little longer and returns to his prayers. He and Ramzi fold up their rugs. They return to their tables. Beneath each table, two chains are bolted to the floor, for restraining the Accused. Today they are slack. After a series of outbursts at their May arraignment, the Accused have been finding milder ways to protest. The lawyers begin to return from lunch. The gallery fills and the judge enters. The Accused do not rise.
* * *
On an earlier trip to this strange island, one Victim Family Member told me: “I was anticipating seeing these monsters that murdered my child. … I wanted to see them, look them in the eye.”
That is also why I came. I wanted to see “monsters,” men who are known by all to be much worse than guilty, men who are generally forbidden to be seen. What does a fair trial mean, exactly, when you are dealing with monsters?
In another century, the trial of KSM would not have taken so many years to get underway. It would have happened in the pitted ruins of the World Trade Center. After it was over, the corpses would have stayed up for days, and we all would have had the chance to throw a stone.
As Michel Foucault puts it:
People were summoned as spectators … pillories, gallows and scaffolds were erected in public squares … sometimes the corpses of executed persons were displayed for days near the scene of their crimes. Not only must people know, they must see with their own eyes. Because they may be made to be afraid; but also because they must be the witnesses, the guarantors, and because they must to a certain extent take part in it. The right to be witnesses was one that they possessed and claimed … there were protests when at the last moment the victim was taken away out of sight.
From the moment of his capture, KSM has been kept out of sight. The 9/11 Commission Report calls KSM “the principal architect of the 9/11 attacks.” His statements source more than a quarter of the report’s footnotes. And yet the man himself remains a phantom; the authors were not given access to KSM or his interrogators, only documents. Along with a few other “High Value Detainees,” KSM is now held in a separate detention camp known as Camp Seven. The camp’s exact location on the island is a secret. One defense attorney known to have visited Camp Seven was brought there in a windowless van.
United States v. Khalid Sheikh Mohammed, et al. is an “open” and “public” proceeding, but getting as close as I could to the courtroom required spending roughly $1,000 and more than a week away from home. Most of the money was paid in two $400 checks made out to the U.S. Treasury, which covered a seat on a charter flight to Cuba from Andrews Air Force Base. To accept the Pentagon’s “invitation” to cover the proceedings, I was required to sign the thirteen-page Media Ground Rules document. Among other things, I agreed not to disclose any Protected Information. The definition of Protected Information makes ample use of the word “includes” and sets no upper limit on what Protected Information might be. In 2010, four News Media Representatives were banned from covering the commissions after they named a witness, an Army interrogator whose identity was already public. After their employers protested, they were allowed to return.
Guantánamo Bay Naval Base is forty-five square miles of Cuban territory held by the U.S. military since 1903. One area resembles a small town, population 6,000, with a school, church, playing fields, a drive-in movie theater, suburban-style homes for service members, and dormitory-style housing for migrant workers. The camps are located on the side of the base facing the Caribbean and cannot be seen from this residential and commercial area. During our stay at Guantánamo, we News Media Representatives were taken on regular chaperoned forays to the base’s mess hall, gym, and supermarket. There were chaperoned excursions to the beach, the Jamaican-style jerk chicken stand, and the Irish pub. We were permitted to order sandwiches from Subway and drinks from Starbucks and take incongruously long, unchaperoned jogs. We were not, however, allowed to see the detention camps. The Pentagon forbids media from seeing the camps and the court proceedings on the same trip — a separate trip must be arranged. For the most part, we were confined to a few acres known as Camp Justice. Cut off from the town and the detention camps, Camp Justice is carved up into a jigsaw of designated zones by every conceivable type of wall: interlocking traffic barriers, chest-high, made of orange plastic; chains hanging between yellow stanchions; retractable fabric bands stretched airport-style between flimsier black stanchions; chain-link fences veiled in black tarps and topped with spools of concertina wire; chain-link blocks wrapped in green tarps and filled with rubble; “no photography” signs; “restricted area” signs; gates that swing on hinges; gates that pop up from the ground.
News Media Representatives and other visitors sleep in khaki tents with plywood floors and powerful air conditioning that trickles out of a perforated tube running along the ceiling. Instead of lamps, there are caged bulbs hanging from thick wires. The showers are made of pipes and canvas. Their floors are pocked with mold. There is a “media rec” tent containing a refrigerator, a telephone, a few chairs, a TV, foosball table, and ping-pong. The overall effect, to quote a senior News Media Representative, is of a “Potemkin war zone,” the illusion of being billeted at a forward operating post on a hostile frontier. With respect to the rule of law, this is more or less correct.
In the morning, News Media Representatives walk a few hundred feet to a leaky airplane hangar once used to test experimental blimps. Each Representative is given a desk and a phone in the “Media Operations Center,” a windowless press room divided into two chambers. Hard-wired Internet is available for $150 a week. On the wall of each chamber are two large TVs. Whenever court is session and the security button has not been pressed, one shows whatever happened forty seconds ago. We are not allowed to record or photograph the courtroom broadcast, or to discuss classified information on the phones, which bear stickers announcing that they are “subject to monitoring at all times. Use of this telephone constitutes consent to monitoring.” The Media Operations Center is staffed by Pentagon press officers who will occasionally toss us a morsel of innocuous color, such as: “It is rumored that some of the detainees have very specific sauces that they prefer for their McNuggets.” Or that KSM dyes his beard with an improvised blend of berries and breakfast juice.
At the center of Camp Justice is the Expeditionary Legal Complex, a few trailers and peak-roofed, shed-like structures surrounded by floodlights. To enter the court complex, News Media Representatives navigate a maze of concertina-wired fences, passing through three checkpoints and two metal detectors. Our names and faces are checked against our Pentagon-issue badges and our passports, as though we were entering another country. Our pocket litter is emptied into clear plastic bags. In the antechamber, before entering the gallery, we are allowed to choose from one of three government-approved pens. The security process is a ritual, a washing away of unknowns to cleanse us of our latent terroristic potential.
In the months after September 11th, a U.S. general characterized the Accused as people who “would chew through a hydraulics cable” to bring down a cargo plane. The island’s security has fantasized about all possible contingencies. Certain trailers have concertina wire wrapped around their bottoms, lest the Accused slip their shackles and burrow through the floor. Pre-hearing conversations between the Accused and their attorneys take place in a narrow vestibule divided by two layers of wire mesh. The complex has no scales, no sword, no statue of a blindfolded woman, just the seals of the five military branches and an American flag.
The gallery of the courtroom is segregated into three zones, one for each of the castes allowed to travel to Guantánamo. On return flights from the island, News Media Representatives are confined to three rows at the back of the plane. They are the only group that must pay for the flight. Moving upward, the next caste of Guantánamo visitor is that of the NGO Observers, who represent human rights groups and legal associations. There is no ideological litmus test for who the Department of Defense will let in — just as The Nation was among the News Media Representatives, so Amnesty International was among the Observers. The controls on Observer movements are more lenient; they are allowed, for instance, to take drive-by “windshield tours” of the detention camps. Above the Observers are the Victim Family Members, who are treated almost like guests, with modern accommodations, meetings with the Office of Military Commissions staff, and protection from unstructured interactions with News Media Representatives. If Victim Family Members so choose, they can privatize their zone of the gallery by drawing a blue curtain. They are allowed to do things that would probably never fly in a normal courtroom, such as wearing portrait-sized photographs of the departed around their necks.
A broadcast of the proceedings can be viewed at eight “Remote Viewing Locations,” seven military bases and one federal building on the East Coast of the United States. These also are segregated — four for victims, two for media, one for “first responders” (police, fire, and emergency personnel), and one shared by Pentagon employees and the “general public.”
Excluding the public from the island ensures that News Media Representatives must turn to the Victim Family Members when seeking an “objective” opinion on the meaning of the trial.
The Victim Family Members who come to Guantánamo are chosen by lottery from a pool of about 275 families who participate in the Pentagon’s Victim and Witness Program. They are accompanied by their own Pentagon chaperones at all times and tend to express views favorable to the Pentagon. They seemed vested in a catharsis narrative where some sort of just resolution to 9/11 is still possible. Most of what I saw suggested that there will never be a resolution, that we are all both victims and authors of this elaborate penal apparatus, and that this is not the end of the war on terror, but the beginning. I kept these views to myself.
Six speakers embedded in the panels of the drop ceiling are the sole conduits through which sound can pass from the courtroom to the gallery. Before reaching our ears, these sounds passed through a forty-second audio delay controlled by a mysterious government contractor. If at any point someone were to say something that I was not supposed to hear, this censor could push a hidden button. The button replaces the courtroom audio feed with white noise, and causes a red beacon on the bench to light up and spin around. The record reports that “the security button was pushed,” and then goes deaf and dumb until the button is un-pushed.
When one is trying to follow a verbal exchange, forty seconds is a very long time. In a normal courtroom, one sees the record unfold with all the characterization and physical nuance of theater. In Courtroom II, where observers are unable to hear words being spoken in real time, the memory of what you see dissolves long before the broadcast of what you would have heard can catch up. There, just on the other side of the Plexiglas, is the “live” courtroom, but the forty-second gap distorts it into an inscrutable mime show. To help make sense of it, there are five TV monitors hanging on the far side of the glass, synced up to the speakers, displaying whatever happened forty seconds ago. The thing is happening right in front of you, but pretty soon you give up and watch it on TV.
* * *
Khalid Sheikh Mohammed is a terrorist mastermind — some newspapers put it just like that. Some modify “terrorist mastermind” with “self-styled,” “self-proclaimed,” or “confessed.” A few use “accused” or “alleged,” but not many, because everyone knows that KSM is guilty. Among the many crimes of which he stands accused is a conspiracy to hijack four commercial airliners on September 11, 2001, and fly them into the World Trade Center, the Pentagon, and the U.S. Capitol, resulting in the deaths of 2,976 people. The charge sheet has him as the field marshal of the attacks, handling funding, logistics, recruitment, oversight, training. He advised individual attackers on passports, flight training, blending in. He instructed them on sneaking box cutters through security and had them practice slitting the throats of livestock. He has yet to publicly deny any of this.
In 2008, before the incoming Obama administration tried and failed to transfer the case to a civilian court, KSM and his four codefendants said they wanted to plead guilty. In 2009, they co-signed a document entitled “The Islamic Response to the Government’s Nine Accusations,” in which they take credit for “the blessed September 11 operation,” and reaffirm a sacred duty to “killing you and fighting you, destroying you and terrorizing you.” They do not dispute the government’s assertion that they are a foreign military that thinks nothing of killing civilians; their only rebuttal is to accuse the U.S. of doing the same. They conclude by suggesting that they want to die, to “leave this imprisonment with our noses raised high in dignity, as the lion emerges from his den. We shall pass over the blades of the sword into the gates of heaven.” Reading this document, one gets the sense that the Accused are indeed “monsters.” To put it in less histrionic terms, they are total assholes.
From time to time, News Media Representatives walk a few steps from the Media Operations Center to a trailer with a wooden podium in front and curtains pulled across the windows.
During the first day’s press conference, we heard many frightening assertions from the defense. Army Captain Jason Wright, one of the officers assigned to KSM, said we were about to witness “a secret show trial.” Cheryl Bormann, the civilian death penalty expert or “learned counsel” assigned to Walid bin Attash, said her team’s office at Guantánamo was so filthy that some had to seek medical care. I had already heard many stories of the unusual lengths that defense counsel had to go through to defend their clients. Air Force Captain Michael Schwartz, an attorney working with Bormann, described to me the lengthy process he has to go through to meet with his client. First, he must give Joint Task Force Guantánamo two weeks’ notice before flying to Cuba. Whatever papers he brings into the meeting will be read for “informational contraband,” by a “privilege review team” of independent contractors who work for the Pentagon. So all he brings in is blank paper. The meeting begins with a few minutes of silence as Schwartz writes out an agenda of memorized items. As his mind is the only vessel he has for unscreened communication with his client, he takes periodic breaks to go out to his car and memorize another batch.
“I have to go in and tell him as much as I can,” Schwartz told me. “All the motions. So in my car I’ll have a stack of paper three feet high.” It can be hard, he said, to convince a client like bin Attash that he is actually on his side. “A lot of these meetings are about building rapport. A typical client might be a little suspicious of me. I’m an officer. It might seem to him like I’m working for the prosecutor’s office, or that I might not really care if he wins his case. I can break through that. Now this guy,” bin Attash, “I’m his named enemy. I’m wearing a military uniform. And people in the same uniform have done things to him that are so bad that I’m not even allowed to talk about them. So the process of building rapport is really slow.”
“This guy wears the uniform of the United States Air Force,” one soldier said to me, referring to Schwartz. “He’s an honorable guy with a bizarro-world fucking assignment. … People think the military are all of one stripe. That’s not true. You have thinking people in the military. People who are really angry at the last president for getting us into an optional war, for hemorrhaging billions of dollars, not to mention the lives that were lost. And for getting this motherfucker started.” “This” being Guantánamo. I would like to think that I share some of the soldier’s confusion, and that this confusion has come to be normal for most thinking people living in a republic with certain aberrant tendencies. On the one hand you feel like the victim of the authorities; on the other hand the authorities are acting in your name. The authorities themselves often say that they are making the best of a bad situation, which further muddles the question of who, if anyone, is responsible.
Leading the government’s side is Brigadier General Mark Martins, Rhodes Scholar, former infantryman, first in his class at West Point. He is a tall man who exudes the effortless superiority of command. The way his eyes are set behind his blade-like nose is not unlike an eagle. When faced with a statement he disagrees with, he sucks in his lower lip, tilts his head, and looks upwards, as though he were entertaining the idea. He speaks with mildness, frequently throwing in a lawyerly “I would submit” after making an assertion. This combination of coolness and ease can, at times, resemble the manner of the president, with whom he worked on the Harvard Law Review. “I don’t really experience highs and lows,” he said, when asked for highlights of the week. Also Obama-like is his way of repeating the same few things over and over again. His refrains are: “Read the filings,” “read the motions,” “listen to both sides,” and “make up your own mind.” Martins was part of the effort early in Obama’s term to reform the military commissions. The administration succeeded in amending some of the more draconian measures in the military commissions act adopted under the Bush administration, and accelerated the transfer detainees away from Guantánamo. However Obama did not make good on his promise to close the detention camps entirely, and he has maintained that the military has a right to hold detainees indefinitely, without charge.
“We’re in a system where people can make allegations,” Martins said at the Sunday conference. “They can impugn the integrity of others. You really have to make up your own mind. We rely on you, the independent press, to look at the different arguments.” Martins has broken up criticisms of the military commissions into seven “uns,” — unfair, unsettled, unknown, unbounded, unnecessary, un-American, unpopular. He has a reply to each. He learns the names of News Media Representatives, makes himself available in person and over email, and seems to be almost emotionally invested in the legitimacy of the commissions. Indeed, one of the strongest arguments in the commissions’ favor might be the involvement of a man like Martins. I can’t seem to shake the worry, as I write all this, that it will hurt his feelings.
* * *
KSM’s whereabouts between his capture (March 2003) and his transfer to Guantánamo (late 2006) remain secret. The secondary literature has him shuttled from secret site to secret site, perhaps in Jordan, Poland, Egypt, and/or a floating naval dungeon. The authorities performed on him 183 waterboardings and all manner of other tortures, the details of which have been documented by the Red Cross, a Senate committee, and the Inspector General of the CIA.
There is considerable evidence that at least some of the torture was motivated by the desire for vengeance. In his book Securing the City, Christopher Dickey writes of officials who spoke of “getting a piece of” certain detainees. A CIA official told Dickey that “part of the reason KSM was waterboarded was for revenge, pure and simple. ‘People said, “This guy killed three thousand Americans.” They said these people were just scum and they wanted to waterboard them every day forever.’” Under Obama’s reforms, some evidence obtained through torture is no longer admissible in court. It seems this change may have been anticipated, as the CIA waterboarders were followed by FBI “clean teams” who served the detainees tea, read them their rights, and took down a second set of official confessions.
The Hunt for KSM, by Terry McDermott and Josh Meyer, is the most complete public account of KSM’s past. Here I find myself trying to glean what I can from their years of research. KSM was born in Kuwait, the eighth of nine children, to a large and devoutly Muslim family. His parents’ roots were in the stateless mountain region of Baluchistan, which is divided between present-day Iran and Pakistan. His father was fifty-seven at the time of his birth and died four years later; KSM grew up under the influence of his older brothers. He appears to have fashioned a vision of himself as a natural-born rebel; while trying to explain himself to the CIA, KSM said he had climbed up the flagpole on top of his elementary school to rip down the Kuwaiti flag. He was a good student, particularly in science, and his brothers scrimped to send him to college in North Carolina, where KSM fell in with a group of fellow Kuwaitis, who looked down upon fellow Arab students — many of them wealthy — who neglected their religion to revel in the substance-driven profligacy of college life. There are no photos of KSM in the yearbooks at either college he attended. A former teacher, who knew him to be a charming extrovert, remembers him returning to the Middle East sullen and withdrawn. By this time, many of his older brothers had been swept up in the jihad against the Soviet occupation of Afghanistan.
After the Soviets pulled out of Afghanistan in 1989, most of the Arab expatriate fighters returned home. KSM, along with Osama bin Laden, was among those who did not disarm. He took on the life of an Islamic warrior/wanderer, raising money and building a network of militant Muslims around the world. Like many radicals, his antipathy towards the United States hardened when the U.S. turned its back on their former Taliban allies and then used Saudi bases during the first Gulf War. There were many who shared KSM’s hatred of the United States and willingness to attack civilian targets; what appears to have set him apart was hustle. As Osama bin Laden began to emerge as the foremost venture funder of global terrorism, KSM fashioned a career as an incubator, an “entrepreneur,” according to the 9/11 Commission, who served as a link between those willing to fund attacks and the pliable losers who carried them out. McDermott has called KSM an “operator,” and his account emphasizes “charm” as an essential factor in his rise.
September 11 was one of many large-scale plots cooked up by KSM since the early ’90s and confessed to at a “combatant status review hearing” in 2007. At various points in his career he also plotted the destruction of former U.S. presidents, Pope John Paul II, suspension bridges, the Sears Tower, the Empire State Building, the New York Stock Exchange, nightclubs, airports, embassies, hotels, nuclear power plants, oil tankers, and the Panama Canal. At the hearing he framed these plots as acts of war, and argued that there was no moral difference between him and his captors:
What I wrote here … I’m not making myself hero, when I said I was responsible for this or that. But you are military man. You know very well there are language for any war. … If America, they want to invade Iraq, they will not send for Saddam roses or kisses. They send for a bombardment. … So when we made any war against America we are jackals fighting in the nights. … As consider George Washington as hero, Muslims, many of them, are considering Osama bin Laden. He is doing same thing. He is just fighting. … So when we say we are enemy combatant, that right. We are. … Any country waging war against their enemy, the language of the war are killing. … Because war, for sure, there will be victims. When I said I’m not happy that three thousand been killed in America. I feel sorry even. I don’t like to kill children and kids … killing, as in the Christianity, Jews, and Islam, are prohibited. But there are exceptions to the rule when you are killing people in Iraq. You said “we have to do it.” We don’t like Saddam. But this is the way to deal with Saddam. Same thing you are saying. Same language you use, I use.
Before his execution for the 1995 bombing in Oklahoma City, Timothy McVeigh made similar arguments — that what he did was no different from what governments do in times of war. Governments, McVeigh said, make exceptions. They commit great crimes and try to excuse them with necessity; McVeigh said there was no good reason why he shouldn’t be able to do the same.
Here is one difference between good and evil. The good hold themselves to some higher principle. One can judge them on the quality of the principle, the degree to which they adhere to it, and the degree to which they fall short. The evil, knowing how badly they would fare in such an accounting, define themselves by pointing to what they are not, and argue that they are the least worst. The worst of the worst point to what they say they are no worse than.
In their “Islamic Response” filing, the Accused cite Hiroshima and Nagasaki as part of their reply to the charge of attacking civilians. Rather than deny the charge of terrorism, they assert that
“America is the terrorist country number one in the world. [It] has nuclear weapons of mass destruction, and the hydrogen bombs … threatening countries’ safety and security.”
I would submit that you cannot justify some “X” through favorable comparison to some “Y,” if that “Y” is already known to be bad. If the U.S. is indeed better than the terrorists, then U.S. officials shouldn’t have to resort to not-as-bad-as logic to justify U.S. policy. Nevertheless, they do:
Donald Rumsfeld, 2004, attempting to justify the military’s treatment of detainees:
“Does it rank up there with chopping someone’s head off on television? It doesn’t.”
John Yoo, 2010, arguing for the president’s power to order the massacre of civilians:
“If, I thought it was military necessary … all you have to do is look at American history … look at the bombing of Hiroshima and Nagasaki.”
Henry Stimson, 1947, attempting to justify Hiroshima and Nagasaki:
“Additional fire raids of B-29′s would have been more destructive of life and property … this deliberate, premeditated destruction was our least abhorrent choice.”
Rumsfeld echoed Stimson when he called Guantánamo “the least worst place we could have selected.” When the best we can do is to call ourselves the least worst, it should be taken as a sign that we are much worse than we might realize.
* * *
For many months the existence of Camp Seven was kept secret. “Detainees are transported in a manner that is extremely arduous and, reportedly for security reasons … designed to disorient the detainee,” wrote the military’s chief defense counsel, in 2009. “Their current incarceration conditions would be considered extreme even by ‘Supermax’ standards.” The cells are said to have no windows. The lights never go off; observation by closed-circuit TV is continuous. Detainees must wear eye masks in order to sleep. For a time, detainees at Camp Seven and elsewhere who did not want to attend their hearings were subjected to “forced cell extractions.” Many have gone on hunger strikes and been force-fed with tubes inserted through their noses.
At the week’s final press conference, Commander Walter Ruiz attempted to discuss some of the conditions under which his client, Mustafa al-Hawsawi, is being held. A News Media Representative had asked why al-Hawsawi hadn’t shown up since the first day.
“Multiple reasons,” Ruiz said. “He does not acknowledge this as a legitimate system of justice. It is a very long day. It takes a long time for them to get to court, from court. The process itself, the types of searches that they undergo, the types of movements that they undergo, it’s pretty elaborate. Laborious.” It was also a Muslim holiday, Ruiz said.
A follow-up: “The elaborate searches and process — that’s associated specifically with the movement to the court, versus just being in the detention camps?”
“Can you give us a sense of what those searches are? The process they undergo?”
Ruiz stared to answer. He was interrupted by a Pentagon press officer: “No.”
From the press, a brief murmur.
Ruiz continued: “Well, I wasn’t going to get into the specifics of it. But I know there was a large issue in the first proceeding about exactly what they went through. And it was something that they believed — and that he in particular felt — was very degrading. And unnecessary, given existing technology. And that’s about the extent I can go to.”
“Dude, it’s your clearance,” said the press officer.
From the press, laughter.
But the press officer might only have been half-kidding. Like all the other defense counsel, Ruiz holds a Top Secret security clearance. He faces criminal prosecution if he breaks the many rules about how to handle classified information related to the case.
Though the conditions of KSM’s storage suggest that he is more dangerous than a hydrogen bomb and more precious than a bar of gold, the label “High Value Detainee” is a misnomer. The government has already extracted most of his value — the propaganda value from his capture, the intelligence value from his statements; the retributive value from his body. What’s left of KSM is a liability. The trial is about disposing of him in some “legal” way; there is little agreement about what this entails. I doubt that one of my fellow News Media Representatives was the first to remark how much simpler it would be to “set him loose and drone him.”
We were on the island for seven days; we sat through five days of proceedings, not so much a trial as negotiations of the terms under which a trial could take place. The Accused asked for and won the right not to show up. Three of the five began exercising it the next day. They won the right to choose their own dress. KSM began garbing himself in camouflage. They asked for and did not receive a ruling on whether they were entitled to the protections afforded by the Constitution. The security button was pushed once, as Lieutenant Commander Kevin Bogucki, one of the military officers defending Ramzi bin al-Shibh, encroached upon the subject of torture in an exchange with the judge, Colonel James Pohl. Through the glass I saw Bogucki at the podium spreading his arms above his head. I heard the words “I would like to adopt the argument …” Then the red beacon lit and spun and the sound turned to static. About twenty seconds later, the video went black, along with feeds to the Remote Viewing Locations. Through the glass, Bogucki and the judge continued their soundless exchange. The gallery murmured. Perhaps two or three minutes passed. Then the beacon went dark, and whatever was said seemed to have been condensed into much shorter speech.
POHL: Just for the record, the public record, start your argument again exactly as you did before.
BOGUCKI: Right now, sir?
BOGUCKI: Your Honor, if I beat you, I’m not providing you information. If I chain you to the ceiling, I’m not providing you information. I’m doing something to you.
POHL: The record shall reflect that that’s actually what he said earlier when the red light went on. Proceed.
BOGUCKI: Thank you, your Honor. When I do those things to you, I’m not providing you information. At most, I’m providing you with a memory of my conduct. And that conduct, your memory of my conduct, cannot reasonably be classifiable … to characterize our clients as having been participants in the CIA program would be like characterizing an assassination victim as a participant in the assassination program. It is ridiculous to suggest that somehow they’ve been afforded access to classified information and that therefore their memories need to be treated as classified information.
Here Bogucki is referring to portions of the Protective Order, a document governing, among other things, the red beacon, the forty-second lag, and what can and cannot be publicly aired:
Because the Accused were detained and interrogated in the CIA program, they were exposed to classified sources, methods, and activities. Due to their exposure to classified information, the Accused are in a position to reveal this information publicly through their statements. Consequently, any and all statements by the Accused are presumptively classified until a classification review can be completed … In addition, the term “information” shall include without limitation observations and experiences of the Accused …
The government is claiming not only the right to classify information (objects that can be locked in safes and loaded onto hard drives) but also the right to reach inside a person and classify consciousness as potential information (experiences, observations, words not yet spoken, thoughts). Like the contractors who read detainees’ legal mail in search of “informational contraband,” the government is denying the enemy all possible zones of redoubt, be they geographic, legal, or mental.
After the May arraignment, General Martins quoted a point made by Justice Robert Jackson, who led the prosecution of twenty Nazi leaders at Nuremberg. Jackson said that any fair trial will, at times, become a “sounding board” for the Accused. The Accused will have some opportunities to speak out, act out, and disrupt the court, Martins said, but this was all, in Jackson’s words, part of “bring[ing] forth the best sources of proof obtainable.”
In the same passage of the same speech, Jackson warned: “You must put no man on trial if you are not willing to hear everything relevant that he has to say in his defense and make it possible for him to obtain evidence from others … the ultimate principle is that you must put no man under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.”
* * *
KSM is a small man whose presence barely fills his chair. His voice is high and nasal. His first statement of the week was short: “I don’t think that there’s any justice in this court.” His second was lengthier, delivered after Pohl agreed to “take him at his word” that he would not touch on torture, rendition, or related issues. He read it from a sheet of a white paper. Here is part of it, as delivered through an Arabic-to-English translator:
KSM: Yes. In the name of God, most graceful, the government at the end of the argument gave you an advice. They told you any decision you’re going to issue you have to keep in mind the national security and to remember that there were 3,000 people killed on September 11. And I would like to give you a similar advice … we have heard the expression of national security again yesterday and today, about tens of times. And everyone use this expression as he or she chooses. … When the government feels sad for the death or killing of 3,000 people who were killed on September 11, we also should feel sorry that the American government, who is represented by General Martins and others, have killed thousands of people——
KSM interrupted the translator, cried out “millions!” The translator continued:
… every dictator can put on this definition [of national security] as they choose.… Many can kill people under the name of national security and to torture people under the name of national security and to detain children under the name of national security, underage children …
The court security officer did not press the button. KSM went on for a little while longer. “Your blood is not made of gold and ours is made out of water. We are all human beings,” he concluded.
The statement was contradictory. On the one hand, he was reasserting his claim to a murderous impunity that he likened to that of the state apparatus that was holding him. He was making up a monster that he could claim to be no worse than. And at the same time, he was nakedly begging for empathy.
It isn’t hard to find Americans who attempt to justify violence by pointing to their enemies, just as KSM does here. As a Time magazine columnist recently put it, in defense of drone strikes: “The bottom line in the end is — whose four-year-old gets killed? What we’re doing is limiting the possibility that four-year-olds here are gonna get killed by indiscriminate acts of terror.” His proposed solution: Indiscriminate acts of terror.
What crimes could reasoning like this fail to justify?
The word “torture” was not quite forbidden to pass through the censor and into the record. Nor did the judge choose to completely gag KSM’s words, even though the Protective Order states that “any and all statements by the Accused” are “presumptively classified,” not to be released without review. In practice, all these firewalls were used in the same way as the forty-second delay. Their function was not to silence the Accused entirely, but to make sure that they would never be able to narrate the stories of their own torture in public.
Why is this scenario so frightening to the government, given how much we know about it already? Attorneys for the Accused have said that the government is trying to avoid further “embarrassment.” General Martins said it could reveal the government’s “sources and methods.” These could presumably create problems for informants, allies, operatives, and other agents of U.S. power whose identities may need to remain undisclosed. Other government arguments echo the WikiLeaks case, that certain facts are best left in limbo between public knowing and official acknowledgement.
But there is a larger reason why we will never hear KSM narrate the story of his own captivity in full. If he were allowed to tell his own story, he could make a compelling case that he too is a victim. Such a scene would represent a serious disruption to the national moral order.
The doctrine of victimhood is one of a few unwritten codicils attached to the Jeffersonian pursuit of happiness. It begins with the essentially American belief that virtue and hard work are rewarded in this world. Therefore good things happen to good people, bad things happen to bad people, and all things happen for a reason. When something bad happens to someone good — whether it be bad luck, or a sudden eruption of history — it is a special case. The sufferer is a victim, a person of infallible moral status. We grant this status as a form of collective payback for suffering so profound that material reparations would never be enough. The core of a claim to victimhood is the firsthand story of trauma, not just what happened, but what it was like. Unless you have suffered as badly as the narrator, you are not permitted to judge them.
Under this doctrine, hearing KSM narrate the story of his captivity would threaten our ability to judge him. He would no longer be a “monster,” but a paradoxical monster/victim. What if he had some profound change of heart, forgave his captors, and pled for forgiveness in return? We might lose our stomach for further retribution. We might call into question not just this capital trial, but also the prison camps, the airport lines, the targeted killings. So when the government says that “national security” is the reason we will never hear much from the monsters behind the glass, there is some roundabout truth to it.
* * *
Back in August, before my first trip to the island was cut short by a hurricane, we’d had a short meeting with the Victim Family Members. We were taken by bus to a church overlooking the water and led to a luncheon room with the odor of decaying vinyl chairs. The public affairs officers discussed whether the meeting should be a “panel” or “roundtable” format. It was agreed that it should be whatever the family members wanted. One group formed a sort of receiving line for the News Media Representatives. The rest fled to a table in the back.
The first two Victim Family Members I shook hands with were Al and Josephine Acquaviva, a couple in late middle age. They wore identical portraits of a dark-haired and square-jawed young man around their necks.
“I just want to see him,” said Al, of KSM. “What kind of monster would bring those buildings down?”
“But he looks mild, like any other guy,” said another reporter.
“I don’t care,” said Al. “I want to see him.” A bit later, a press officer made this announcement: “I think we’re just about done. Are we done? We’re done.” He led us back to the bus. “I do believe we’ll be able to take you guys to the beach when we get back,” he said.
In October, Al stood at the podium and made a more formal address to the media. This is what he said:
He was on the 103rd floor of the World Trade Center. The North Tower. He was twenty-nine years old. He had a wife. He had a daughter that was two and a half. And his son was born in December of 2001. Now, I heard a lot of things said up here about the rights of vic —— … the rights of the accused. And I believe in our judicial system. I’m a reasonable person. But what happened to “justice delayed is justice denied?” We’re going on eleven years now. Where’s the justice for my boy? He hasn’t gotten any justice yet. My wife cries all the time. She hasn’t gotten any justice yet.
I know defense attorneys have a job. I don’t criticize them in the least. I know they have a function in our system and it’s wonderful. But to stand up here and be patronized and told that “oh, they don’t understand the system of a given state, with the death penalty, or with this and that,” is terrible in my opinion. We came here this week to see the hearing. It’s been a revelation to me. I’m on the side of the government. And if you were all standing in my shoes, you would be the same way. But these government lawyers, led by General Martins … have been terrific, have been fantastic. And my wife and I that take comfort on that. The victims — I’m sorry, the accused — have gotten every right. The judge, in my opinion, has bent over backward to accommodate them.
Now people here, they say there’s observers to see the trial is fair and everything. There’s no judicial system in the world that’s fairer than the United States of America’s. The accused, if they were in other country, particularly a Middle East country, they would have been hung, maybe ten years ago. The government has been more than fair. They bent over — the judge, Judge Pohl, in my opinion has gone too far. But I’ve been told that’s something they have to do to get the accused, a word I’ve learned this week … I don’t know what accused means. Who flew the planes into the World Trade Center? These defendants have admitted their participation. I understand we have to go through the judicial system. I understand that. And I respect that. We have to make a record, for my grandkids to read about it, years from now. My son’s life was just beginning. He graduated Columbia Law School. He was vice president of corporate development. He didn’t have an enemy in the world. And I’m not saying that as a grieving father. I’m saying that because it’s true. What justice has there been? Justice delayed is justice denied.
Other Victim Family Members spoke. One brought up the torture his daughter might have gone through before she died, and said that whatever was allegedly done to the Accused, it was not sufficient. Another said that the trial, slow as it was, compared favorably to the lynching of Gaddafi.
After the press conference, Al pulled me aside. At first it was not clear why. I had made little effort to connect with the Victim Family Members. Maybe they had been warned to avoid me; maybe I was avoiding them. Maybe Al, having just made an emotional speech, was in a mood to break this ice.
“I want you to know something about my son Paul,” Al said. He looked me directly in the eye, as though this were something concerning me, personally, as much as anyone who might read it later. “Paul was the starting quarterback on his high school football team. After he died, a young man came and knocked on our door. I had never seen him before. His hair was kind of long, like yours is.”
The young man told Al that Paul had always made a point of talking to him in the halls and hanging out with him in the cafeteria. Paul made him feel welcome. This, the father said, these words from a stranger on his doorstep, this meant more to him than all the poems and flowers.
* * *
Years from now, the killing of KSM will likely take place under circumstances similar to his trial. It will happen on the island of Cuba, behind glass, in a room with no windows, drop ceilings, a few religious props, and plenty of security. The Pentagon will fly in a few Victim Family Members and News Media Representatives. These spectators will be kept at an optimal distance, close enough to certify the event as “public;” far enough away to avoid partaking in the ugliness of the scene. KSM will give a speech. So long as he stays away from the topic of torture, the security button will not be pressed. The killing itself will be swift and professional. The newspapers will quote an official who will say that the body was disposed of in accordance with Muslim law.
It is strange to be a designated observer in a society that keeps this kind of secrecy around fundamental processes of law. Deprived of any real information, you get caught up in small things—the McNugget sauces, the color of a beard, the performance of the midday prayer. Because you are allowed to stand a bit closer, you forget that you are not seeing anything at all.
Excerpted and translated into German for Reportagen.
Interview with Deutschlandradio.