September 11, 2001, started a normal morning. After an overnight visit with a dear friend and his family, it would soon be time to head over to the airport to pick up my dad. While making breakfast, the phone rang. “Turn on the tv. A plane hit the World Trade Center. It is on fire.” We turned it on just as the second plane slammed into the second tower. America was under attack. But all I could think about was, “did someone just kill my dad?” I couldn’t fathom that my path would lead to fighting to save the life of the man I thought might have killed my dad.
My personal story before that day influenced what happened next, but that’s for another day. This is about what came after. Today, we know it was four planes and the attack ended by late morning. But on 9/11, reports were up to 11 or 12 planes were either hijacked or shot down, in the first of multiple attacks.
Then my dad’s company told my sister and I that my dad’s plane was lost. Then that it might have been shot down or hijacked. So, by late afternoon, we planned to regroup at my sister’s house to figure out how to tell her children grandpa is no longer with us.
It wasn’t until late that night we found out our dad was alive. It took another full day to hear his voice. My dad shared that the pilot said military aircraft was actually dispatched to shoot down his plane for not diverting after U.S. airspace was closed.
Young and angry, I tried to enlist in the Army. Infantry. I wanted to kill the men that tried to kill my dad. Was talked out of it at the time, but that started a path that took me back to college (night school), to law school, a federal clerkship, and to the United States Air Force Judge Advocate General’s Corps.
The MCDO is the defense arm of the Office of Military Commissions (OMC), which is organized under the Office of the Secretary of Defense (OSD). The MOC is a joint service and Department of Defense (DoD) civilian unit that runs the legal proceedings of detainees held on Naval Station Guantanamo Bay (GTMO). Its stateside offices are in a building in Crystal City, Virginia.
The assignment process started with an Initial interview with the “front office,” which consisted of the commanding general and about a handful of other senior leadership. Selection meant a second round of interviews, this time with individual defense teams. If no team thought you’d be a good fit, you spent your assignment banished to the front office.
Two major, still ongoing, cases are the USS Cole case and the now-four defendant 9/11 case. Both are (as of this moment, at least) death penalty cases.
I was assigned to the appellate defense division at the time, representing Airmen before the Air Force Court of Criminal Appeals (AFCCA) and the United States Court of Appeals for the Armed Forces (CAAF). A colleague who had previously served in MCDO told me that my background would get me on a decent team, but not Cole or 9/11. Those Accused rarely agree to a military lawyer joining their defense. The Military Commissions Act (MCA) requires one counsel of record to be military, but the rest are typically civilians.
Khalid Sheikh Mohammed (KSM), the lead Accused in the 9/11 case and alleged mastermind of the attacks, called first. By that I mean his defense team, of course.
So, clearly that was going to be a low threat, practice interview. It was the beginning of the Age of COVID. Society, and particularly the military, was just beginning to learn how to operate in a remote world. A Zoom call was scheduled and, of course, there was a meeting to prepare for the meeting the day prior. I was given the names of the interviewers and told it would be a rather informal call. Like all good interviewees, I researched each interviewer the night before.
The lawyer for Ted Kaczynski (Unabomber) . . . the lawyer for Randy Weaver (Ruby Ridge) . . . the lawyer for Henry Lee Lucas (“The Confession Killer,” on Netflix) . . . the Director of the ACLU’s John Adams Project and also a prominent capital litigation attorney . . . one of the most prominent mitigation specialists in the country . . . and these were just a sampling of their clients and DEEP experience.
Undeterred, I sat at my computer the next day, awaiting my informal call, in a “nicer,” solid colored t-shirt. Then panic set in. Less than 90 seconds before the call I thought . . . not that casual! I sprinted to my closet and ran back to my chair while trying to button up a white dress shirt, over my dark colored t-shirt, that needed to be ironed. That’s how I started my interview with the who’s who of American capital litigation . . . while out of breath . . . and wearing basketball shorts.
It was exhilarating. Everyone was gracious and personable. It would be challenging, but I allowed myself a little time after the call to picture myself contributing to the team and having that experience. Several minutes later though, I came back to Earth and looked toward the next interview, feeling good about my “practice” interview.
I received the call that same night.
The MCA is, with a few exceptions, a “copy & paste” of the Uniform Code of Military Justice (UCMJ). But with no precedent interpreting its provisions, or its relationship to the UCMJ, federal, or international law. Even its very foundation was uncertain. But the closest analogy to military commissions law is military justice. I clerked at CAAF, served as a prosecutor and defense counsel (large, high visibility base), practiced at the appellate level, and published in military justice. Because I devoted myself to the study and practice of military justice, my best asset was to be a resource.
The team went to the commanding general to pick me before anyone else could interview me. I would now try to save the life of the man accused of killing nearly 3,000 innocent people . . . who led to my path to military service . . . a sworn enemy . . . the man that almost killed my dad.
No attorney-client communication will be disclosed here. Or anywhere. I would need a written release, and that will never happen.
No litigation strategy will be disclosed here. Or anywhere. First, the most recent prosecution began in 2009. I was on the team for only two years. And the litigation barely crawled along. It was the height of COVID, and the plea agreements mucked up by the Biden Administration’s recent unlawful interference were getting underway. Second, I left the team at the end of 2022. Anything I was privy to has probably become overtaken by events (OBE). Third, no one will know the internal conversations I was privy to. I am a lawyer, and a professional. I have the professional responsibility to protect attorney-work product.
No classified information will be disclosed. Yes, I held the highest security clearance, even an unnecessary one specific to DoD, and was read into special programs. Yes, I am read out and no longer in the military. But the duty, and legal obligation, does not end.
Talk about what I saw, did, and experienced short of violating my disclaimer.
Share information found in unclassified pleadings that are in the public domain and any relevant personal opinion on what the pleading(s) say or are communicating, like any other commentator with relevant experience.
Share information and opinions/commentary from the voluminous pleadings, books, articles, social media, reporting, documentaries, and other sources publicly available to anyone interested in a more (in my opinion) comprehensive understanding of history and the issues that make this all so hard to resolve . . . and way more gray than black and white.
One cannot begin to try and grasp the sheer magnitude and size of the 9/11 trial, and the prosecution’s theory (and it’s credibility), without an understanding—not necessarily agreement, but understanding—of history.
The Federal Bureau of Investigation (FBI) has repeatedly described the case as the largest criminal investigation in the history of the United States. And that’s just one agency (albeit, a pretty important one). Several agencies are in this several decades long story. Several authors propose and argue that 9/11 began long before that fateful day.[1] But, I will just take us back to 1993, when America likely first encountered KSM.
In 1993, the World Trade Center was targeted in an attack led by an individual commonly referred to as Ramzi Yousef. One author notes that Yousef subsequently sent a letter to the New York Times that said:
We are, the fifth battalion in the Liberation Army, declare our responsibility for the explosion on the mentioned building. This action was done in response for the American political, economical, and military support to Israel, the state of terrorism, and to the rest of the dictator countries in the region.
Our Demands Are:
1 – Stop all military, economical, and political aid to Israel.
2 – All diplomatic relations with Israel must stop.
3 – Not to interfere with any of the Middle East countries interior affairs.
If our demands are not met, all of our functional groups in the army will continue to execute our missions against the military and civilian targets in and out of the United States. For your own information, our army has more than hundred and fifty suicidal soldiers ready to go ahead. The terrorism that Israel practices (which is supported by America) must be faced with a similar one. The dictatorship and terrorism (also supported by America) that some countries are practicing against their own people must also be faced with terrorism.
The American people must know, that their civilians who got killed are not better than those who are getting killed by the American weapons and support.
The American people are responsible for the actions of their government and they must question all of the crimes that their government is committing against other people. Or they – Americans – will be the targets of our operations that could diminish them.
In their book, The Hunt for KSM, the authors state the FBI became aware of KSM after the 1993 World Trade Center attack. He had wired money to Ramzi Yousef . . . who was also his nephew.
From then on, FBI agent Frank Pellegrino and the FBI hunted for KSM.
What happened between 1993 and 2001 is now well documented by McDermott and several others. And there is so much. Here is an assuredly incomplete summary.
In 1994, KSM collaborated with his nephew on a project known as the Bojinka plot. The plan was to detonate explosives on 12 commercial airlines enroute to the United States from several locations in Asia. According to the 9/11 Commission Report, this was the first time KSM engaged in the planning of an terrorist operation. The plan also allegedly included flying a Cessna packed with explosives into the CIA compound in McLean, Virginia (known as Langley because it is located on the old Langley Farm). It was to take place in 1995.
Among other test runs, Mr. Yousef detonated a device on Philippine Airlines Flight 434, killing one passenger and injuring several others. But the Bojinka plot was foiled when Philippine National Police responded to a chemical fire in the apartment being used by Yousef and his associates to manufacture the explosives. They narrowly escaped, but left behind a treasure trove of evidence including Mr. Yousef’s laptop. In it was a file that read:
All people who support the U.S. government are our targets in our future plans and that is because all those people are responsible for their government’s actions and they support the U.S. foreign policy and are satisfied with it. We will hit all U.S. nuclear targets. If the U.S. government keeps supporting Israel, then we will continue to carry out operations inside and outside the United States to include . . .
There was also apparently a message threatening to attack targets “in response to the financial and military assistance given to the Jewish state in the occupied land of Palestine by the United States Government.” It was signed “Khalid Shaikh – Bojinka.”
The United States Attorneys Office indicted Mr. Mohammed on terrorism charges in the Southern District of New York in 1996.
The FBI repeatedly tried to arrest KSM. And it came awful close on at least one occasion, in Qatar. But diplomats eventually waived them off. On September 11, 2001, in his hotel room in Malaysia, Agent Pellegrino apparently said, “My God, it’s got to be Khalid Sheikh Mohammed.”
About a year later, KSM sat for an interview with a journalist that was turned into a book. A year after that, a joint force apprehended him in Rawalpindi, Pakistan.
KSM’s legal team was large. The MCA requires a “learned” counsel lead each defense team on a death penalty case, paid for by the DoD. Then there were some additional team members (i.e. civilian attorneys, paralegals, mitigation specialists) that were also paid for by DoD. Some attorneys were pro bono, most were paid in some form by the American Civil Liberties Union (ACLU) John Adams Project. There were expert consultants and advisors from all over the planet. It was an extraordinary educational experience.
During my assignment, I was one of two detailed military defense counsel. The team limited the number of signatures on motions to five, and one of the five was usually the longest serving detailed counsel. My role on the team was to listen, learn, and support. I oversaw the team’s motion practice, and picked up joining the mitigation effort. But mostly, I was a military justice resource and researcher.
There were about 59 outstanding motions during my short tenure, going back to 2012. Most of them concerned discovery. For many reasons, discovery is a major problem with the military commissions. As criminal practitioners are aware, the prosecution must disclose what is within the government’s possession. Not only does that include terabytes upon terabytes upon terabytes, and more terabytes, of information, it is owned by dozens of agencies beyond the Department of Defense. And—at least 20 or so years ago—much was initially classified. That changed over the years, at least at the possessing agency. It was a common occurrence that, upon receiving a notice that requested discovery cannot be disclosed, or is disclosed heavily redacted, a team could obtain the exact same discovery, unclassified and unredacted, by filing a Freedom of Information Act (FOIA) request with the owning agency.
That was a real education. Handling that sort of volume, all the fight, and all the bureaucracy, was intense. I could go on and on about how difficult that process was. Even for prosecutors. It has to be such an ordeal to coordinate with so many agencies, over so much time, and the impacts of that time lapse.
For example, back in 2014, the defense filed a motion to compel the convening authority to provide a capable discovery management platform to organize and sort the volume of evidence in this case. The Commission ordered the convening authority to fund that request in 2015. By 2020, it had yet to comply, resulting in a motion to compel. It took until October 2023 for the Commission to order compliance. I left the team in 2022, so have no idea if that has happened yet. I doubt it.
There’s even a motion—I believe still pending—seeking to determine WHAT LAW APPLIES to the military commissions! International, constitutional, federal, military? Motions have to be a labyrinth of if/then statements. Well, except when they’re not.
At some point, the prosecution initiated the latest round of plea negotiations that eventually led to all the latest hoopla with unlawful command influence by the Secretary of Defense and the Biden Administration. With ongoing motion practice appropriately paused, I became more involved in the mitigation side of the potential case. A whole other impressive experience working with some of the top mitigation specialists and investigators in the country. And like almost everything that has anything to do with the military commissions, everything was derailed. The military judge all but ended a fascinating project I worked on, though almost everything was publicly available in open sources, including the base itself.
But again, I believe my biggest value add was as a military justice resource and my research and writing skills. As issues arose, when relevant, I would provide a draft addition to a section in a motion and discuss it. I always enjoy discussing military justice and military legal history.
In addition to the military commissions apparatus itself, the ridiculous part was traveling to and being onboard Naval Station Guantanamo Bay (GTMO). First, there is getting there. I’ll never forget my first visit. The DoD expends an enormous amount of money to contract out a single flight to NSGB and back every Saturday. I had to report to Joint Base Andrews, Maryland, to the passenger terminal to check in, check bags, and wait for the flight. Though a civilian airline (one I thought had long gone bankrupt), that’s where the similarities to your every day domestic and international travel ends. You roughly estimate the weight of your bags, plus you. You then get a laminated “boarding pass.”
Ordered to arrive by 0700, there is no specific departure time. It says 0900, but it may several hours later . . . or before. There are no boarding zones. If there are hearings, if I remember correctly the judiciary boards first, then the prosecution, then the families of 9/11 victims, then media/observers, and defense in the back. There were no hearings on my first flight, so a full (maybe) 727 flew down with maybe 20 people on board. I chose my seat in “first class.” Big seat with lots of leg room, but the same cafeteria sandwich as everyone. Definitely no in-flight entertainment.
But, much better than the early flights shortly after GTMO opened up.
An otherwise fine flight, maybe a tad long. But, you better use the bathroom before landing. Once on the ground, it will be HOURS . . . SEVERAL HOURS, before you see one again.
Inprocessing at “customs” was relatively straightforward for military. Just show your Common Access Card and some paperwork you have to take with you. You then get loaded on a bus after being offered a cold bottle of water. Lots of bottled water around. It’s ridiculously hot in GTMO.
From the “terminal” (and no, it isn’t like it looks in the movie Mauritanian) you ride to the dock. GTMO spans both sides of the bay, you need to take a ferry to the other side of the base. From the Leeward to the Windward side. The Leeward is basically just the flight line.
The ferry ride is actually pretty cool. GTMO has beautiful water. Once on the Windward side, you arrive at the “red carpet.” You roll up to a literal red carpet leading into a small room. There you get your relevant credentials (special, your lodging information, and your vehicle rental.
Let’s start with vehicle rental. To my memory, there are three options for what you will be assigned: (1) a Ford F350 (not sure, but a big one, (2) a something like a sixteen passenger van, (3) or some sort of non-air conditioned ATV thingy.
I got a sixteen passenger van. For myself. I drive a Mini Cooper.
As if that wasn’t enough of a challenge, there are strict driving rules on base. Yes, you will be pulled over for doing 21 miles per hour in a 20 mile per hour zone, but that is common on military installations. But GTMO has a plethora of an endangered species of iguana, the Cuban ground iguana. If you hit one, it’s a $15,000 fine and permanent disbarment from the island.
I’ve seen whole convoys stopped by a single iguana that felt no need to move from the middle of a road.
I tried to walk as much as possible. I didn’t trust myself behind the wheel of a bus.
Oh, and there are banana rats.
Now for lodging. Generally, civilian employees stayed at the Navy Gateway Inns & Suites. It isn’t the Ritz, but it’s the nicest of the three options. Contractors generally stay at the Navy Lodge. Middle of the road. So, maybe you might find some wildlife in your room here and there, but it’s still hotel-like. We service members stayed up on the hill.
A neighborhood of converted shipping containers.
Granted, they were powered by Olympic class A/C units. Think it was a permanent 60 or so degrees inside while 119 degrees outside. And, mine was surprisingly about the same size, if not a bit larger, than my apartment in DC.
But it was a converted shipping container. And I finally got there probably around 8 or 9 that first night, 14 or so total hours of travel and hassle.
GTMO is a small, obsolete location. Obsolete in terms of the physical base, not any particular mission. I was given a “nickel” tour when I arrived, since a majority of the installation is classified and inaccessible without both the proper clearance and a need to know. Few pictures are allowed, because odds are you are likely photographing something in the background that’s classified.
Most of the living/working part of the base is off one main road, including where the legal offices were. But if you take a turn down a long, winding road, you pass base housing and after a while, you reach the complex that houses the prison, the courtroom (build specifically for a five defendant trial), and additional work offices. You first encounter some pretty aggressive, stern gate guards, to whom you must show the proper credentials to pass. I won’t talk about any of the logistical procedures and movements beyond the gate. I leave that to others and the ever-growing list of documentaries, docuseries, and other Hollywood depictions. But you can work there, go to court there, and meet with the client in that area.
Now the time came, after several months of written communications, to meet the client in person for the first time.
I did not wear my uniform to client meetings, though I have to comply with customs and courtesies and the grooming standard. I had a job to do and every criminal defense lawyer will describe to you the importance of developing trust and respect with the client. And this was no ordinary client. Not sure it’s correct, but KSM has been at times referred to as the #3 in al Qaeda (I think at least 3-5 people, according to the United States and our allies, held that spot . . . simultaneously). I believe the journalist that interviewed KSM on the first anniversary of 9/11 asserts he referred to himself as the military commander of al Qaeda. If true, to me that was like representing someone like Heinrich Himmler at Nuremburg, or maybe someone like the Chief of Staff of one of the services.
No, I am not equating them, I’m referring to something like rank and importance or influence.
I needed KSM’s respect and trust. It was challenging enough that we were sworn enemies and I had my own personal connection to 9/11.
My first visit to GTMO was scheduled for a week (stretched to two). Though, with the size of the team and my rather junior role, I expected only a handful or so client meetings. I packed two long sleeve shirts.
Why long sleeves when it’s over 100 degrees by 8 am and stays that way well into the evening (imagine running and working out there!)? I have visible tattoos on both arms. As I understood Islam at the time, that is considered defilement of the body.
Respect and trust.
In my pre-meeting briefing the day before my first in person visit with KSM, I realized the color of my shirts might matter. I planned to keep my uniform in my CHU (converted housing unit) because I felt I could not look like his enemy if he was to trust me. And infiltration of defense teams had already been an issue. But I had not put thought into my civilian dress. Those that tortured (the Senate’s words, not mine) KSM for three years at various black sites wore all black.
Black is my favorite color.
Yup, you guessed it. Both long sleeve shirts were black. So there I was, rushing back down the hill to the Navy Exchange (the base “mall”) just before it closed to find shirts.
Barely a medium in sight. Almost everything was an XL or XXL. I ended up paying a boat load for a blue Hulk fishing shirt (don’t fish) and a Polo shirt (still wear on occasion).
Visits, I’m sure, must have been a hysterical sight and an obvious attempt to cover up.
There is so much I wish I could say about my interactions and brief relationship with KSM. It was a once in a lifetime experience. In my own personal opinion, I believe this debacle of constant politically-motivated unlawful interference with an already discredited “judicial” process actually harms the families of the victims who want closure by bringing this case to a close and having KSM answer questions at sentencing.
I do not, and never will, condone or justify the extremely heinous act he is accused of (and at least one journalist reports he admitted to). But, I will be so bold as to say KSM is not the boogeyman he has been portrayed to be. Let me try and explain.
Almost every criminal defense client I have represented has been considerably more relatable than the Government’s narrative. That even goes for a client responsible for the death of almost 3,000 people.
At its heart, the Military Commissions, and the 9/11 case in particular, is more political theater intended for domestic consumption more than to provide justice. You know, the stuff we accuse countries like Iran and North Korea, and Saddam Hussein’s Iraq, of doing. Here is just one glaring example I think is crass.
Everyone who even knows who KSM is can recall the picture splashed all over media outlets the day he was captured. The white undershirt, rough looking hair photo. Did you know that his captors actually re-did the photo to make him look like that?
In March 2020 (before I began my assignment), the defense team filed a motion to compel some photos, documents, and names. Here is how they put it to the military judge:
Specifically, in The Hunt for KSM, authors Terry McDermott and Josh Meyer describe a conversation between Marty Martin, said to be a former CIA operative, and then CIA director George Tenet after Mr. Mohammed was captured. Martin is reported to have asked for permission to release a photo intended to portray Mr. Mohammed in a negative light.
Apparently, photos of Mr. Mohammed were taken immediately after his capture, but those photos did not portray Mr. Mohammed as negatively as Mr. Martin had hoped. According to McDermott and Meyer, “Martin then asked if there are other photos available. The agent messed up KSM’s hair and then took another photo. The result was the famous photo of KSM—thickest, glowering, wild-haired, half dressed in his nightshirt.”
AE 768 (KSM), Motion to Compel Discovery Regarding Photos of Mr. Mohammed’s Capture, 12 March 2020), pg. 3-4. Director Tenet boasted about this in his own book, At the Center of the Storm.
Again, to be clear, I cannot countenance the killing of thousands of innocent people. Just as I cannot countenance the use of attack gunships in response to children throwing stones at checkpoints, or forcing hospitals to sterilize operating and other rooms with gasoline because chlorine is banned by sanctions, and other sanctions that only affect innocents rather than those in power actually causing the trouble.
But, for a brief, deeply impact time (in so many ways) I got to know a husband, father, grandfather, discriminated against refugee, and, as many have thoroughly described, someone who can reasonably believe is simply responding to an aggressor that has been on the offensive for decades. That has long supported, and actually engaged in, the punishing and deadly subjugation of a people.
This post is already far too long, but there is so much to say about my 9/11 trial experience and KSM. For those interested, check out my interview with John Hook of Fox 10 Phoenix on his show, Newsmaker, for a bit more.
And please reach out to me for book recommendations, and movies and documentaries to check out.
Ultimately, I hope that I did my job. I built a positive, professional relationship of mutual respect, and upheld the Constitution. It was a difficult job. So much so that, during my last visit, it showed. After a visit, a cherished team member (I believe) trained in social work reached out to me to check on my mental health.
It was a once in a lifetime opportunity to work with true giants in the capital litigation field; truly professionals. It was fascinating to be a very small part of history, and to bookend my path into, and out of, military service.
Hopefully, I demonstrated that my effort is why we are better. For a brief time, I worked to save my enemy’s life. I doubt he would have done the same.
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[1] While there is a cottage industry of books on this topic, I found Lawrence Wright’s book, The Looming Tower, very informative.