Q&A: Khalid Sheikh Mohammed’s lawyer
His client, a jailed al-Qaeda operative, releases a new manifesto arguing against the use of violence.
Khalid Sheikh Mohammed – the al-Qaeda operative who is accused of masterminding the September 11 attacks – has written a manifesto stating that violence should not be used to spread Islam.
The 36-page document, obtained by the Huffington Post and published on Tuesday, also tries to convince his captors to convert to Islam – and argues that the terrorist attacks he claims to have orchestrated were a means of self-defence.
In addition to the 9/11 attacks, the al-Qaeda member has claimed responsibility for the kidnapping and murder of American journalist Daniel Pearl in 2002. Khalid Sheikh Mohammed was captured in Pakistan in 2003 and has been held in the US’ Guantanamo Bay prison since 2006.
The CIA subjected him to waterboarding 183 times in 2003, which former US President George W Bush later said he personally authorised.
Although more than 12 years have passed since the September 11 attacks, the trial of Khalid Sheikh Mohammed and his accused co-conspirators may not begin for another few years, says David Nevin, the lead defence counsel for Khalid Sheikh Mohammed, due to the sheer amount of information and investigation involved.
Al Jazeera’s Sam Bollier spoke with Nevin in November 2013 about the legal proceedings against Khalid Sheikh Mohammed, torture, and the military tribunal system.
Al Jazeera: When will Khalid Sheikh Mohammed’s case come to trial?
Nevin: I don’t know the answer to that. I doubt that anyone does. But I would think something on the order of two years, maybe more. The government has said many times that it’s the largest criminal investigation in the history of the United States.
Naturally, it takes a while for everybody to get that kind of a case ready to be tried. The government had hundreds of agents who went to many, many different countries and conducted probably thousands of interviews. Not all of that will be brought to bear in the court, obviously, but there’s a lot of ground to cover.
Al Jazeera: Is the discovery process ongoing?
Nevin: It’s only barely beginning, actually … The Military Commissions Act of 2006 was passed and then these [defendants], the same five, were prosecuted beginning of 2008. Then the commissions were shut down after Obama was elected and the case was to be transferred to federal court, to the Southern District of New York in Manhattan. Politically there was a backlash against that … and the case came back to Guantanamo.
Our initial appearance, our first hearing occurred in May of 2012. So it’s been in active litigation for about a year and a half. … There was a sixth man, [Mohammed] al-Qahtani, who was to have been charged as well, but ironically, the convening authority decided that he could not be prosecuted because he had been tortured – which strikes all of us as anomalous, because in which case why is Mr Mohammed being prosecuted?
Al Jazeera: Are you able to meet with your client in any kind of regular manner?
Nevin: I have met with him many times and I’ve spent hundreds of hours with him. I’m in the mid-70s for trips to Guantanamo Bay. But as for “regular”? We went through a period where we were meeting in rooms and we noticed that there were smoke detectors in the room. And we became suspicious of the smoke detectors and one of us, not me, inquired at one point, “is that a smoke detector, or what is that?”
We suspected that it was a listening device and as it turns out, it was a listening device. So … there’s been a lot of litigation around the question of whether we’re really having regular confidential meetings with our clients.
We’re not allowed to make telephone calls to our clients. If you want to go to Guantanamo – I live in Idaho, and to get to Guantamamo takes two days of travelling in each direction for me. When you get there it’s difficult and there are many restrictions that are placed on meetings.
Up until about two weeks ago [in November 2013] – in other words, for the first year and a half of the case – there was a rule in place that limited the things we could talk about with our clients. There was literally informational contraband. These are not matters that can be discussed. And these included many of the things that would be our defences in the case.
Mr Mohammed and the others were tortured. So that's the kind of thing that you immediately would want to explore ... But the detention of any detainee and the identities of government personnel were both ruled to be contraband.
Possibly with respect to guilt, but definitely with respect to penalty, one is entitled to answer the question: Why did 9/11 occur? And yet, “historical perspectives on jihad” was ruled to be a contraband subject. In other words, Mr Mohammed would say in order to understand the events of September 11 and why I acted, we have to understand what’s been going on with the United States and the Muslim world for the last 100 years, let’s say. And we have to have some historical perspectives on jihad. The charge sheet directly alleges that he acted in order to retaliate against the United States.
Well, to retaliate for what? And so naturally, he will want to present evidence that the plight of the Palestinians, the abuses of the Israelis, the Iraq sanctions, the propping up of dictators in the Middle East, the exploitation of oil resources, the placing of military troops in the land of the two holy mosques, and on and on and on – no, that’s all contraband, or at least it was until two weeks ago.
Al Jazeera: What other subjects were considered contraband?
Nevin: There was a list of maybe eight or nine … the others that come to mind immediately are the detention of any detainee and the identification of government personnel. … Under US law in a capital case, the defendant is entitled to offer anything in mitigation of the sentence that has any reasonable chance of lessening the punishment.
So obviously Mr Mohammed and the others were tortured. So that’s the kind of thing that you immediately would want to explore. Who tortured you? Why? On whose orders? How long did the torture go on? Where did it take place? Who were the people specifically who did it? Were you able to observe all of it? How do you prove that it happened?
Those are all things that you would do prior to the sentencing in a capital case. But the detention of any detainee and identities of government personnel were both ruled to be contraband … We filed a motion and argued that that was inappropriate and the judge agreed with us, and issued a new set of rules that provide any subject can be discussed so long as it’s directly related to the litigation.
Al Jazeera: Will Khalid Sheikh Mohammed’s torture be subject to a gag order?
Nevin: The United States has classified their observations, so in other words the government takes the position that where Mr Mohammed was tortured, how he was tortured, who tortured him and so on – that those things are all classified.
And it sounds like a modest enough proposition when you hear it the first time. But if you think about it, you realise that these men were tortured – against their will, obviously – and now the government tells them you can’t talk about the details of this to anyone who doesn’t have a security clearance.
What that means is that they are unable to complain under the Convention Against Torture, they’re unable to complain to international bodies. The United States is a signatory to that convention. The effect of it is that they are unable to vindicate their rights under that convention. They can tell me, because I have a security clearance, but I can’t tell you these things because you don’t – and you don’t have a “need to know”. So it sharply limits our ability to investigate the case and when and if we are ever allowed to tell this story in court, the courtroom would be closed.
Al Jazeera: Have you defended clients in the military system before?
Nevin: No. But then again, no one’s defended clients in the military commissions system before because it didn’t exist until 2006. There is a very elaborate military justice system, the Uniform Code of Military Justice, that is used for military servicemen and women who are alleged to have committed criminal offenses. But that’s not an area that I normally practice in. … [The military commissions system] is a very stripped-down legal system. It has a little bit of the quality of the Potemkin village, where you have rules and regulations and you have a court, but the thing doesn’t really function as a genuine justice system.
Al Jazeera: Have you faced any backlash in your personal life for defending Khalid Sheikh Mohammed?
Nevin: Yes, there are some crazy people who have expressed anger about my involvement in the case. And I say “crazy”, because after all this is the thing that we fought the American Revolution for, in part.
Americans over 200 years have died and struggled and fought so that there would be a presumption of innocence and requirement of proof beyond a reasonable doubt. And in Gideon vs Wainwright in 1966, the US Supreme Court said you can’t put someone even in jail – never mind kill them – without providing them a lawyer.
You either agree with those things or you don’t. If you don’t, then you’re at odds with the Constitution of the United States, and I don’t know where you fit intellectually. But if you do agree with them, then there have to be lawyers.
Follow Sam Bollier on Twitter: @SamBollier