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A talk with Khalid Sheikh Mohammed’s legal team - ASHARQ AL-AWSAT English Archive
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London, Asharq Al-Awsat – Asharq Al-Awsat has gained unprecedented access to Khalid Sheikh Mohammed, the man considered by some to be the most dangerous in the world, and a mastermind behind the September 11th attacks, by speaking with his civil attorney David Nevin and his military attorney Jason Wright.

David Nevin, one of the most prestigious American lawyers specializing in terrorism cases, has travelled to Guantanamo on many occasions to meet with his client, Khalid Sheikh Mohammed, under the eyes and ears of the American guards at the heavily guarded Camp 7. Nevin is extremely cautious when speaking to the press, and objects to the commonly used media acronym “KSM” to refer to his client, because he feels it dehumanizes him. He is also cautious when talking about the specifics of his client such as his health, what he reads, eats and drinks, his physical exercise routine and so on. However, in the courtroom, Nevin can always be found on the right of Khalid Sheikh, sitting in the first row whispering legal advice to him.

Asharq Al-Awsat conducted an interview with Khalid Sheikh’s civil and military attorneys via e-mail during their visit to Kuwait and Qatar. They are searching for any possible relations to Khalid Sheikh Mohammed in the two Gulf States. Khalid Sheikh was born in Kuwait to Pakistani parents, before he later travelled to the US to study. His lawyers are due to arrive in London next January in further preparation for the trial scheduled for May 2013.

The following is the text from the interview:

[Asharq Al-Awsat] When was the last time you saw Khalid Sheikh Mohammed?

[Jason Wright] It is our duty to defend Mr. Mohammad, to challenge the government’s evidence against him, and to pursue any valid legal defense. As one of Mr. Mohammad’s court-appointed defense counsel, I must in general keep the specific details of any relationship confidential. I do meet with Mr. Mohammad, but as one of his attorneys, I would prefer to keep the specific details in confidence.

[Asharq Al-Awsat] How many times have you met him so far?

[David Nevin] The most I feel comfortable saying is, “many times.” Of course, the number of times we have met, and the content of our meetings, is strictly private.

[Asharq Al-Awsat] Each time, how long are you allowed to sit with him? Are these meetings monitored by the guards of private?

[Jason Wright] Mr. Mohammad is detained in Guantanamo Bay, Cuba. We have an opportunity to meet with him, but it does require us to travel from the United States. Mr. Mohammad is not permitted to use the telephone to contact his lawyers or anyone else, and even written communication between Mr. Mohammad and his attorneys is severely limited. We are permitted to meet with him at a secret location in Guantanamo Bay, Cuba, and the times when defense counsel are permitted to meet with detainees is subject to absolute control of the Camp Commander and his guards.

[Asharq Al-Awsat] Where is Khalid Sheikh Mohammed currently being held now?

[David Nevin] In general, Mr. Mohammad’s conditions of confinement are considered by the government to be “classified,” which is to say that they must be kept secret. This is unlike the rules which apply to other cases in the United States, in which the treatment of prisoners is protected by law, and in which they may speak publicly about how they are treated. Despite these secrecy rules, however, the government has admitted that Mr. Mohammad is confined at Camp 7. Camp 7 is a highly secret facility. Its location at Guantanamo Bay is closely protected, and very few persons other than guards and prison administrators have been allowed inside.

[Jason Wright] The U.S. has detained him at Camp 7 in Guantanamo Bay. He has been there since September 2006. From his capture in March 2003 in Pakistan to September 2006, Mr. Mohammad was forcibly disappeared by the U.S. Government, held at locations outside the United States, and subjected to torture and other mistreatment by the U.S. Government who were assisted by foreign governments. Camp 7, where he is now held, is where all of the so-called high value detainees have been placed. The precise location of this camp on the prison island is secret because the U.S. Government somehow claims that revealing its location would place the U.S. national security at risk.

[Asharq Al-Awsat] You have recently visited Qatar, Kuwait and London. Does this have any connection with the Khalid Sheikh Mohammed case?

[David Nevin] Yes. We came here to learn more about the Gulf region because Mr. Mohammad lived here for considerable periods. Mr. Mohammad’s family are of Pakistani/Baloch heritage. His father moved the family to Kuwait, and Mr. Mohammad was born and raised there. He left Kuwait in 1983 to study at universities in the United States, and he lived for a time in Qatar after returning to the region.

One thing is very important to bear in mind. Mr. Mohammad cannot be written off as “evil personified,” or a set of initials “KSM”, as some people would prefer.

Neither the United States government nor the world must be permitted to think of him as an object. We insist that he be seen as what he is: a human being from a family characterized by religious devotion and humility. He has a wife and 7 children whom he loves very deeply.

One other reason we are visiting the region just now: we want people here to know 2 things about the United States. First, that the United States, from the highest levels of government, created and maintained a systematic program of illegal arrest, detention, and torture; and it has created a fundamentally unfair justice system at Guantanamo, the primary purpose of which is to provide a thin veneer of process and obtain convictions of Mr. Mohammad (and others), while keeping “The Torture Program” secret. More broadly we recognize that the United States has a long and ugly history in this region, and that people here are deeply concerned and offended by this. And second, we want the region to know that not everyone in the United States believes that this history of “trauma, torture and tragedy” should be sustained. We believe these facts are inextricably entwined with Mr. Mohammad’s case, which cannot be fairly concluded without a full airing of this history.

[Jason Wright] “It is our duty to defend Mr. Mohammad – to challenge the evidence against him, to present a defense, and to do everything in our power to seek accountability against the U.S. government for its brutal treatment of him. We are required to keep the details of our work confidential. I can say that we are investigating the circumstances of 9/11 – which according to U.S. investigators from the FBI – is the largest criminal investigation in the history of the United States.

As part of this, we are also seeking to learn more about the more about the trauma and humiliation experienced by Muslims in the Middle East based on U.S. foreign policy decisions that extend back for decades. Part of our work is to understand this humiliation and suffering before 9/11, and perhaps most importantly today, how the U.S. has continued to alienate the Muslim world through its aggressive posture with the war on terror.”

[Asharq Al-Awsat] How did Khalid Sheikh Mohammed seem the last time you met him? Can you describe him to our readers?

[David Nevin] “The recent pictures provided by his family which have appeared on the Internet are good likenesses.”

[Jason Wright] “Mr. Mohammad is a human being who must be treated humanely – not only because it is required by international human rights law and U.S. law, but because it is the right thing to do. The U.S. government’s intelligence and security agencies have tried to characterize him as less than human – by changing his name from Khalid Sheikh Mohammad to just three letters in the English alphabet, “KSM.” They tortured him, and treated him like an animal. There is even a book about him, “The Hunt for KSM,” which implies that he’s an animal that must be hunted. What I’ve learned, in part, is that this is an extension of the humiliation that many Muslims feel about America. Mr. Mohammad is a human being, and all human beings – no matter the allegation, have a right to basic dignity.”

[Asharq Al-Awsat] In your own view why is Washington insistent on trying Khalid Sheikh Mohammed in military court?

[David Nevin] Very simply, Washington wants to perpetrate the contradiction of conducting a “secret show trial.” On the one hand, the government wishes to make the world believe that it has treated Mr. Mohammad fairly, and accorded him due process. On the other, it is deeply afraid that Mr. Mohammad will be found not guilty or that his life will be spared; and — even worse — that the case will reveal details about the persons who set up, approved, and carried out The Torture Program. Hence the “secret show trial”: the appearance of justice, but with special traps built in to guarantee conviction and execution.

[Jason Wright] The U.S. unlawfully disappeared Mr. Mohammad from Pakistan, and tortured him for more than 3 years. The White House, the Department of

Justice, the CIA, and the Department of Defense did not think through the consequences of its decision to violate international and U.S. law. In 2006, when the U.S. Government realized that it could no longer hold Mr. Mohammad and other high value detainees at black sites, they had a decision to make – try them in a U.S.

Federal Court in the United States where the U.S. Constitution applies, or send them to Guantanamo Bay and try them by a military commission. The U.S. chose to send them to Guantanamo Bay because it was the best place to obtain a conviction and a death sentence. The U.S. created special laws to try these men – called the “Military Commissions Act,” which allows for the use of secret evidence, where the Constitution may not apply, and where the rules are skewed in favor of the prosecution, and where the world would never learn about what the U.S. did to these men through torture. Why? Because it’s much easier to obtain a conviction and a death sentence when there is a secret trial with secret evidence hidden from public scrutiny.

[Asharq Al-Awsat] Do you believe it would be fairer to try Khalid Sheikh Mohammed in a civilian court?

[David Nevin] Yes. President Obama and Attorney General Holder apparently agree with me. President Obama announced in his inaugural address that he was closing Guantanamo Bay and ending “the unfair Military Commissions.” But then politics intervened and Congress passed a law forbidding civilian trials. The framers of the United States Constitution, however, were quite clear on this matter – – politics has no place in the administration of justice.

[Jason Wright] The world wants a fair trial – a fair trial is a critical part of any legitimate system of laws. The rules in the military commissions are not designed to be fair, and it is our duty to ensure that the process is fair no matter where Mr. Mohammad might be tried.

[Asharq Al-Awsat] Have you spoken to him since the death of Osama Bin Laden? If so, what was his reaction? Was he upset? How is his moral in general?

[David Nevin] I believe his morale in general is good; but our discussions about specific matters, including the death of Mr. Bin Laden, is strictly private.

[Jason Wright] To follow-up on the fairness of the system, the U.S. Government has prohibited us from sharing any words, comments, or statements from Mr.

Mohammad. They believe every word spoken or written by Mr. Mohammad must be treated as Top Secret because his words have the potential to somehow cause grave danger to the national security of the U.S. What the U.S. is doing, in reality, is trying to silence a torture victim. They do not want the details of his torture being revealed to the world. Because of this policy to classify Mr. Mohammad’s words as Top Secret, I cannot answer your question.

[Asharq Al-Awsat] In your view, would it have been better to arrest Bin Laden and to put him on trial rather than kill him?

[David Nevin] I do not know all the circumstances of Mr. Bin Laden’s killing. However, I am opposed to killing people who could be safely captured and detained under humane circumstances, and brought to justice.

[Jason Wright] I support the right to life as expressed in the Universal Declaration of Human Rights – not only as a human rights lawyer, but as a moral human being.

[Asharq Al-Awsat] Is Khalid Sheikh Mohammed on a diet? Does he participate in any physical activities?

[David Nevin] We are not allowed to describe his conditions of confinement, but President Obama commissioned a report on conditions there, which contains some descriptions of conditions. It can be found here: http://www.defense.gov/pubs/pdfs/REVIEW_OF_DEPARTMENT_COMPLIANCE_WITH_PRESIDENTS_EXECUTIVE_ORDER_ON_DETAINEE_CONDITIONS_OF_CONFINEMENTa.pdf. Please be aware that the report is incomplete, as we and many others have repeatedly stated. For example:

http://www.nytimes.com/2009/02/24/us/24detainees.html. Still, it contains some useful and interesting information.

[Jason Wright] The U.S. Government has declared that Mr. Mohammad’s “conditions of confinement” are classified at the highest level, again, because it would somehow cause grave danger to the U.S. Defense attorneys have consistently filed complaints with the Department of Defense concerning the treatment of detainees at Guantanamo Bay. For the 166 detainees who remain at Guantanamo Bay, it is a sad and tragic place where there is little hope.

[Asharq Al-Awsat] Khalid Sheikh Mohammed has claimed to have been tortured by the US, namely that he was waterboarded 183 times, kept awake for seven days straight and that his family has been threatened. What is the latest in this regard?

[David Nevin] These matters are not “claims,” because the United States government has admitted them in declassified documents. Furthermore, there are many ways other than these three in which Mr. Mohammad was tortured, but we are forbidden from revealing them. To give you an idea of what I mean, you should look at a declaration I prepared and filed in 2009 in which I described all the things Mr. Mohammad had told me about his torture. As you will see, large portions of the declaration are blacked out so that the information contained in them can be kept secret.

[Jason Wright] While the entirety of Mr. Mohammad’s brutal treatment has been classified – to protect the torturers – we filed a letter of allegation to the UN on 5 May 2012 requesting that the Special Rapporteur for Torture examine the U.S. Government and any other potentially complicity foreign government who may have tortured, or assisted in Mr. Mohammad’s torture. The letter of allegation relied solely on those facts that have been declassified – the 183 sessions of waterboarding, the 181 hours of sleep deprivation, and threats to kill his family.

[Asharq Al-Awsat] Do you have any hard evidence that he was tortured?

[David Nevin] The United States has openly admitted enough to prove conclusively that Mr. Mohammad was tortured, as I describe above. Much more remains to come out, but I wrote this in the declaration described above: “During my meetings with Mr. Mohammed, I have personally observed scars on his ankles and wrists consistent with his description of his treatment while in the custody of the United States. Additionally, although I am not a medical expert, it is my judgment based on my education, training and experience that his tone and affect in describing his prior treatment is consistent with a person who has been the victim of torture. Further, his descriptions to me of these matters have been consistent over time and at different interviews. It is also consistent with public source reporting on the treatment of Mr. Mohammed and other high value detainees.

[Jason Wright] The U.S. Government acknowledges that it waterboarded Mr. Mohammad 183 times. Waterboarding is a mock execution where the victim is tied down on a table, and forcibly drowned. He is brought to the brink of death and back. This happened to Mr. Mohammad 183 times. Yes, the U.S. Government tortured Mr. Mohammad, and not a single member of the Bush administration has been held accountable.

[Asharq Al-Awsat] Do you believe that those responsible for this will be tried?

[David Nevin] They should be. Whether they will or not remains to be seen.

[Jason Wright] No. The U.S. Government will do everything in its power to protect those people who designed, authorized, and conducted the CIA’s torture program. The U.S. has an obligation under the Convention Against Torture to investigate and prosecute torturers. Every government has a duty to protect legitimate state secrets that might harm its national interest, but it is difficult to understand how its torture of Mr. Mohammad and treatment of other detainees should be classified. The Convention Against Torture requires accountability, and the U.S. has violated international law.

[Asharq Al-Awsat] What’s the latest regarding Khalid Sheikh Mohammed’s trial?

[David Nevin] A trial date has not yet been set. The Military Judge recently set a date in May of 2013 at which we will discuss whether and when a trial date should be selected.

[Jason Wright] The 9/11 case is in active litigation, and a trial will be some time in the future. Right now, we have hearings before the military commissions on a periodic basis, about every 2 months, where we are filing legal challenges.” Our next hearing dates are scheduled for 15 to 19 October 2012.

[Asharq Al-Awsat] What is his mood like? Is he comfortable?

[Jason Wright] The U.S. Government’s policy that every word, statement, thought, or emotion from Mr. Mohammad’s mouth is classified prohibits me from answer that question. We have filed a legal challenge to this policy.

[Asharq Al-Awsat] What kind of books or newspapers does Khalid Sheikh Mohammed read at Guantanamo? Is he permitted to read Arabic newspapers?

[David Nevin] Again, we are not allowed to discuss the conditions of Mr. Mohammad’s confinement.

[Jason Wright] The U.S. Government’s policy that every word, statement, thought, or emotion from Mr. Mohammad’s mouth is classified prohibits me from answer that question. There has been a declassified and publicly released report from 2009 on the conditions of confinement at Guantanamo Bay that discusses some aspects of their confinement, but I cannot answer your question.

[Asharq Al-Awsat] What about his physical health? Has he been ill? Has he put on weight?

[David Nevin] This is a private matter which I do not believe is appropriate for public comment.

[Jason Wright] The U.S. Government prohibits me from answer this question because it is somehow classified. We have filed a legal challenge to this policy of presumptive classification because it is unlawful.

[Asharq Al-Awsat] Do you believe that American and western media outlets have been fair in general to Khalid Sheikh Mohammed?

[Jason Wright] Journalist and reporters have been covering Guantanamo Bay, the military commissions, and the 9/11 trial with careful thought and deliberation. The media – U.S., International, and Arabic press have generally come to the independent conclusion that Guantanamo is a symbol of suffering and oppression, and that the military commissions are second-class form of justice.

[Asharq Al-Awsat] What is your own view of Khalid Sheikh Mohammed’s Islamic faith? Do you consider him a moderate, a fanatic? Who would you say are his major influences?

[David Nevin] I believe Mr. Mohammad’s faith, and its particular tenets, are, at least for now, private matters which are not appropriate for public comment.

[Jason Wright] I cannot answer this question based on the restriction that every word from Mr. Mohammad’s mouth is classified. And again, we are doing everything in our power as defense attorneys to challenge the lawfulness of this policy in court.

[Asharq Al-Awsat] Have you personally read the Quran or books about Islam in order to better understand Khalid Sheikh Mohammed and others like him?

[David Nevin] I am engaged in ongoing study of the Holy Qur’an and Islam. I do not have scholarly knowledge, but I am very interested in the religion and in Mr. Mohammad’s commitment to it.

[Jason Wright] Yes. Mr. Mohammad is being charged with violating the laws of war. The U.S. Government’s formal charges against Mr. Mohammad claim that he engaged in a “jihad” against the U.S. by supporting Osama Bin Laden’s declaration of war against the U.S. I have a professional obligation to understand Islam’s laws that govern international law and the laws of war just as I have an obligation to understand the Western conception of public international law and the laws of war.

This has been a good opportunity for me personally. I have great respect for Islam and the Ummah, and am enjoying my study of the Holy Qur’an, and the life of the Prophet Mohammad.

[Asharq Al-Awsat] Khalid Sheikh Mohammed is being tried with 4 others? What is the latest? Is it easier or more difficult given that he is not being tried alone?

[David Nevin] There are great difficulties and complications associated with the case whether Mr. Mohammad is tried alone or with others.

[Asharq Al-Awsat] Can you please tell our Arab readers why you oppose a military tribunal for Khalid Sheikh Mohammed?

[David Nevin] It makes no difference the name you give the Court — what is important is whether it delivers fairness, due process, and reliable results. Of course, our civilian Courts, when they are functioning correctly, are second to none at achieving these goals. There was no legitimate reason to construct a new Court system out of whole cloth to try Mr. Mohammad — no legitimate reason, but a variety of illegitimate ones.

[Jason Wright] The prevailing opinion in the world is that Guantanamo, and its 166 suffering souls, are symbols of U.S. oppression and despair. The military tribunal is a second-class system of justice that is not designed to be fair, but to obtain a conviction. We are fighting to ensure that Mr. Mohammad has a fair trial.

[Asharq Al-Awsat] In your view, how long will this trial last?

[David Nevin] I don’t know how long the trial will take — there are two sides in any trial, and I cannot completely control how long the prosecution takes. It is worth noting, however, that the prosecution has estimated that the trial will last one year.

[Jason Wright] I cannot speculate – many years based on the complexity of the issues and the fact that we have an obligation to challenge every aspect of this special, secret court.

[Asharq Al-Awsat] As an American, don’t you think it is strange to find yourself defending the mastermind of the 9/11 attacks? Do you consider it an act of courage to defend a self-confessed enemy of America?

[David Nevin] It isn’t strange at all — on the contrary. In a very real sense, I consider myself to be defending not only Mr. Mohammad, but also the Constitution of the United States. There has never been a case like this one — my government tortured Mr. Mohammad and in the process gave up its position as the standard bearer for justice in the world. We are being asked a series of questions by Mr. Mohammad’s case: who are we? What do we believe in? What is important to us? My job, and my team’s job, is to answer these questions in a calm and carefully reasoned way. This is a task we are very willing and very proud to undertake.

[Jason Wright] We have taken oaths to support and defend the Constitution of the United States. The American people, and indeed the world, want to see a fair trial for Mr. Mohammad. It is our duty under the U.S. Constitution to defend Mr. Mohammad – to challenge the government’s evidence, to present a defense, and to ensure that the process is fair.

[Asharq Al-Awsat] Regarding Khalid Sheikh Mohammed’s childhood in Kuwait did you find anything interesting in this regard?

[David Nevin] We are not at liberty to share the findings of our investigation at this point.

[Jason Wright] I understand from public reports that Mr. Mohammad did grow up in Kuwait, but that is not the focus of our work. In Kuwait, we wanted to learn about the effects of U.S. foreign policy in the Middle East and the humiliation experienced by many Muslims. Also, an important part of our work involves educating people about the suffering at Guantanamo and the lack of fairness with the military commissions.

[Asharq Al-Awsat] Why did he join Al Qaeda, in your view?

[David Nevin] Whether, when, and why Mr. Mohammad joined al Qaeda is not a matter we are able to discuss at the present time.

[Jason Wright] I cannot express an opinion on this. It is the U.S. Government’s obligation to prove that Mr. Mohammad, as a member of al-Qaeda, violated the laws of war.

[Asharq Al-Awsat] President Obama had pledged to shut down Guantanamo Bay before taking office, but now in the last days of his first term, Guantanamo Bay remains open. What is Khalid Sheikh Mohammed’s view on that? As Khalid Sheikh Mohammed’s lawyer, what is your own view on this?

[David Nevin] I have touched on this subject in my answers above.

[Jason Wright] We are forbidden from expressing any words from Mr. Mohammad. As expressed earlier, Guantanamo is a concept, not a place. For 166 detainees, it is where they have spent great lengths of their lives without trial, and without hope.

For the world, it’s a symbol of hypocrisy, oppression, violence, abuse, hatred, and Islmaphobia.

[Asharq Al-Awsat] What do you hope to achieve with Khalid Sheikh Mohammed’s trial?

[David Nevin] Please see my remarks above in response to a similar question.

[Jason Wright] This case is a struggle for the soul of America. My government forcibly disappeared Mr. Mohammad, brought him to the brink of death and back

183 times on the waterboard, and has convened a secret show trial designed to execute him. The U.S. government now seeks to complete what it almost did 183 times – the U.S. government seeks to kill him. It seeks to strap him down again on board, to have a doctor present, to have guards present, and instead of drowning him with water, they intend to drown his blood with lethal medicine. This is an act of vengeance that continues a cycle of tragedy, trauma, and torture between the West and the Muslim world that has existed for far too long. It is time to stop.

There is hope. This case, representing the 9/11 years – the war on terror years – can be the final paragraph in this dark chapter. We can stop the cycle. Through this case, there is an opportunity for understanding, for dialogue, and a new era reconciliation, redemption, and rediscovery.

[Asharq Al-Awsat] Who is paying the legal fees for the trial, particularly as this will no doubt takes hours and hours of work?

[David Nevin] I am paid by the government to defend Mr. Mohammad. (This is, by the way, a very common occurrence in the United States. In 1966 the Supreme Court ruled that no one may be sent to jail in the United States without the assistance of a lawyer — and if the person is unable to afford to hire a lawyer one must be appointed at public expense. Some 80% of criminal cases in the United States involve publicly appointed and paid lawyers.)

[Jason Wright] I am appointed by U.S. law to represent Mr. Mohammad, and paid by the U.S. Government to defend him. U.S. courts frequently have court-appointed lawyers represent defendants and these lawyers are paid by the Government. In such cases, as here, the lawyer’s duty is to the client and to the client’s case as opposed to the Government.

[Asharq Al-Awsat] Do you have anything else you would like to add?

[David Nevin] Only this, thank you and your readers very much for your interest in Mr. Mohammad’s case. It is a case of vital importance, and its outcome affects us all. We very much appreciate your efforts to understand and report its significance.

[Jason Wright] Thank you for this privilege to discuss this important case. I would ask that your readers continue to follow the 9/11 case and not forget their brothers and sisters in Guantanamo Bay. We ask for your readers to decide for themselves whether Guantanamo Bay should continue and whether the military commissions are fair. I would finally ask your readers to consider that there is a difference between the American people and the policies of the American government. Many Americans believe in the right to a fair trial, and that all people have a right to be free from violence and torture. Through understanding, dialogue, and mutual respect and dignity, we can close this dark chapter and start a new era of rediscovery.

Asharq Al-Awsat

Asharq Al-Awsat

Asharq Al-Awsat is the world’s premier pan-Arab daily newspaper, printed simultaneously each day on four continents in 14 cities. Launched in London in 1978, Asharq Al-Awsat has established itself as the decisive publication on pan-Arab and international affairs, offering its readers in-depth analysis and exclusive editorials, as well as the most comprehensive coverage of the entire Arab world.

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