The pretrial hearing is the first time the five detainees have appeared in court since February 2020. Along with Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi are also charged in the capital case. If convicted, all five could receive the death penalty.
The case has faced a series of challenges since and before the detainees were arraigned at Guantanamo in 2012 during the Obama administration. The most recent 18-month hiatus was caused by the ongoing Covid-19 pandemic and personnel changes.
Mohammed and the other four detainees were dressed in culturally appropriate attire provided by their lawyers. Mohammed appeared in court wearing a Pashtun-style hat, with a white top covering his head and a navy-blue scarf braided and wrapped around his head and shoulders. His reddish-orange henna-dyed beard was visible.
Three of the men wore headscarves, and one, Ali Abdul Aziz Ali, referred to by his lawyers as Ammar al Baluchi, wore a gray Sindhi, a hat traditional of his native Pakistani province. Ali is the nephew of Mohammed.
All five detainees were escorted into the courtroom by prison guards wearing face masks, face shields and blue rubber gloves. Judge Col. Matthew N. McCall asked everyone in the courtroom to keep their masks on during the hearing. While all five of the detainees walked into the courtroom with masks on, four of them took their masks off during the hearing.
The detainees, who sat at the edge of tables lined along the left side of the courtroom, chatted with each other throughout the two and a half hours they were in court, both during the hearing and during two courtroom recesses.
Mohammed who sat closest to the judge in the order of detainees, was seen with his arm slung across the back of his chair talking with Bin ‘Attash, who sat behind him in the order they were arraigned in the courtroom. During the first courtroom recess, Mohammed walked out of the courtroom accompanied by guards. He waved at two reporters in the gallery on his way out.
James Connell, Ali’s attorney, said his client was talking with the other detainees and his legal team because he’s happy to be out of lockdown.
“The man has been in lockdown for as long as everyone else has been in lockdown, and to see people that he hasn’t, his legal team that he hasn’t seen in a long time is a cause for pleasure,” Connell said. “He’s pleased to be back in court, he’s pleased to see the case move forward, and he’s pleased to see his legal team after a long isolation related to Covid.”
Family members of victims of the September 11 terrorist attacks, observers and journalists watched the courtroom proceedings from behind soundproof glass on a 40-second delay to ensure that classified material is not accidentally made public.
A new judge
McCall, an Air Force judge, presided over his first in-person hearing in the case. Whether or not McCall should preside over the case at all has been an ongoing issue and is the subject of the first week’s hearings.
Prosecutors, representing the US government, protested McCall’s appointment initially because he did not have two years of experience as a military judge, a requirement to serve as a judge of a military commission.
McCall recused himself and was later reappointed after he acquired the right amount of experience to preside over the case.
The first week of hearings is expected to cover the issue of whether or not the prosecution or the defense teams have any objection to McCall presiding over the case. The prosecution and defense teams began questioning McCall today, but the hearing was interrupted when a military appeals court ruling regarding the very issue being discussed was handed down.
The appeals court ruling said McCall could preside, but the ruling also says any decisions McCall made while he served as the judge on the case before he acquired two years of experience are no longer valid.
Since the five detainees were arraigned at Guantanamo Bay in 2012, four judges have presided over in-person hearings in the case.
The questioning of the judge by both defense and prosecution lawyers will continue on Wednesday.