Accused 9/11 mastermind Khalid Sheik Mohammed wanted to wear paramilitary-style woodland-patterned camouflage clothing to court.
His nephew wanted to sport the same cap he used to pose for a Red Cross photo.
A series of documents unsealed at the Pentagon this week reveal a source of tension at the May 5 arraignment of the Sept. 11 accused at Guantánamo — the men sought to wear what the prison camps commander considered alternately unsafe, culturally inappropriate or disruptive attire. And he forbade it.
Now, lawyers for the five men who face a death-penalty trial are appealing to the chief military commissions judge to stop the camps commander, Rear Adm. David B. Woods, from interfering with their clients’ court wardrobe.
The challenge to the authority of Woods, who runs the camps that houses 169 prisoners, is the latest in a series by defense attorneys who argue that the career Navy officer, whose speciality is intelligence jamming, has interfered with the court process by having his forces go through the captives’ attorney-client mail. Woods, who will be replaced at the U.S. Navy base later this month, has countered that security is paramount.
Now, in an affidavit, the admiral explains how he and the colonel in charge of the prison camp guard force went through the accused’s proposed wardrobe — provided by their Pentagon attorneys, most uniformed officers — and rejected everything but the white gowns and prison camp uniforms that they wore to court for the unusual Saturday arraignment.
As a result, the most traditionally clad person in court was a secular attorney — Cheryl Bormann from Chicago — who donned a black abaya, a shapeless headscarf and gown that covered her hair and left only her face exposed.
Bormann, paid by the Pentagon to defend accused al Qaida deputy Walid bin Attash, said she was respecting her client’s Muslim sensibilities and at one point scolded women on the Pentagon prosecution team to watch their hemlines.
The hearing spanned 13 hours and began with attorneys bitterly complaining that the five men accused of organizing, training and funding the Sept. 11 hijackings were refused their choice of attire.
In the instance of the alleged mastermind, Woods wrote, Mohammed’s lawyer presented a jacket, hunting vest and fabric for a proposed turban all made of “woodlands camouflage print” — shown with a label calling it a “Ranger’s Vest” in a court document. Woods said he forbade it because of “security and good order and discipline concerns, and because they were inappropriate courtroom attire.”
War crimes defendants at World War II tribunals at Tokyo and Nuremberg were able to wear military-style clothing to their trials, said Mohammed’s attorney, Army Capt. Jason Wright. Mohammed sought to wear “militia-style” clothing in the Laws of Armed Conflict sense of the term, as a paramilitary organization.
Two of the accused sought to wear traditional Afghan caps and vests — no camouflage, purchased at a Virginia shop called Halalco that specializes in Muslim products. And in each instance Woods rejected that choice of attire because “such vests are traditionally only worn during the winter or in colder climates.”
James Connell III, the attorney for Mohammed’s nephew, known as Ammar al Baluchi, said the cap that his client wasn’t allowed to wear to court was the same as the one he wore to pose for photographs that were taken by the International Committee of the Red Cross. Those photos have turned up on websites sympathetic to al Qaida. Neither contained any messages, he said, describing Baluchi’s proposed wardrobe as “banal.”
All five of the men who got to Guantánamo in 2006 from CIA custody were allowed to wear their skullcaps to court, Woods said in the affidavit, “in recognition of their cultural and religious significance.”
And they were allowed to bring their prayer rugs with them, unfurling them inside the maximum-security courtroom during breaks.
But Woods wrote he was forbidding “clothing that is inconsistent with the decorum and dignity of a court proceeding whether in the United States or the Middle East.”
Plus, no vests allowed. Or anything with pockets, “a potential means of removing unauthorized items from the courtroom.”
“Excessive clothing could potentially complicate the guards’ ability to gain control of a detainee.”
Guards brought four of the Sept. 11 defendants to court unshackled. Bin Attash was brought in a restraint chair like those once used for forced feedings of prisoners, with his prosthetic leg detached due to an unspecific episode prior to the hearing. Eventually he was freed.
Bin Attash lost a leg in fighting in Afghanistan before the Sept. 11 attacks and also planned to dress paramilitary style for court. His lawyers got him a “foul-weather jacket of the Desert Camouflage Uniform print,” similar to those warn by U.S. Coast Guard members at the war court, according to Woods’ affidavit. “It was not culturally appropriate courtroom clothing,” Woods said.
Woods spokesman did not immediately respond Wednesday to a request for comment, including whether the admiral consulted with the judge, an Army colonel, on what would constitute “culturally appropriate clothing” in his court.
At the May 5 hearing, the judge, Army Col. James L. Pohl, said he was willing to take up the issue. “The rule is they are entitled to wear appropriate non-prison garb attire,” Pohl said, adding that if Woods made “some arbitrary and capricious decision on that, let me know about it and I will revisit it.”
The motion seeks to do just that. It argues that the men are still suffering from their treatment in CIA custody — Mohammed was water boarded 183 times — and that Woods’ “arbitrary, unpredictable and standardless denial of the detainees’ right to wear appropriate clothing” to court “replicated the psychologically disruptive nature of the CIA procedures.”
Also, they argue that Woods is prejudicing the case against them by forbidding them “to wear items of clothing customarily worn by belligerents within the context of hostilities under the laws of armed conflict reverses the presumption of innocence.” Mohammed is the self-described former chief of operations of al Qaida and has called himself a revolutionary just like George Washington.
At the prison camps they are held as the enemy. But at the war court they are afforded a presumption of innocence, according to the Pentagon, one reason why earlier judges have urged defendants not to wear their prison camps uniform to court. But one of the accused, Saudi Mustafa al Hawsawi, wanted to wear an orange jumpsuit to court, which Woods forbade, citing “institutional and security concerns.”
Only certain captives are kept in orange jumpsuits, the admiral wrote, and Hawsawi is not among them.
But orange jumpsuits have been seen at the war court before: Afghan teen Mohammed Jawad, since released after a federal judge ruled him unlawfully detained, was arraigned in March 2008 in an orange jumpsuit and ankle shackles, demonstrating he was uncooperative with his captors. And two years earlier Binyam Mohamed donned a traditional Pakistani tunic and trousers, a shalwar khameez, that his lawyer had had dyed jumpsuit orange in London for his arraignment. Mohamed has since been released to live in Britain, and cleared of all charges.
Hawsawi’s attorney, Navy Cmdr. Walter Ruiz, said the Saudi wanted to wear the orange jumpsuit because it “more accurately reflects his status as a political prisoner in relation to war hostilities rather than the softer and less accurate ‘detainee.’” It was provided, he said, by a founder of the Code Pink anti-war group, Medea Benjamin.