Chattanooga: A terrorist defense

The decision to defend Khalid Sheikh Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, terror attacks and a Guantanamo Bay detainee, came easily for Chattanooga defense attorney Mike Acuff.

Lt. Col. Acuff, a devout Christian, says he chose to work on Mr. Mohammed’s legal team because he supports the constitutional rights of those accused of crimes to defend themselves within the U.S. justice system.

“I think people misperceive that being a criminal defense attorney means approving of wrongdoing,” Lt. Col. Acuff said. “It just means you’re there to make sure they have a fair shot at things.”

Arrested in Pakistan in 2003, Mr. Mohammed soon claimed responsibility for killing nearly 3,000 people at the World Trade Center In Lower Manhattan, as well as other acts of terror, including the 2002 beheading of Wall Street Journal reporter Daniel Pearl.

Mr. Mohammed’s 2003 mug shot, showing him wearing a thin white T-shirt and dazed expression, cemented the image of the Kuwaiti, until then a shadowy figure, as a prized captive in the U.S. war on terror. At one time, he was third in command of al-Qaida, the terror organization led by Osama bin Laden.

Some on the side of the federal government say years could pass before Guantanamo Bay, a U.S. facility on the Cuban coast guarded by American Marines, is closed down or before the status of its 250 detainees is resolved.

Jeffrey Addicott, director of the Center for Terrorism Law at St. Mary’s University School of Law in San Antonio, Texas, said the proposed alternative has been to transfer prisoners such as Mr. Mohammed to the U.S. federal court system.

However, that move could backfire, Mr. Addicott suggested, because some evidence gained under the Military Commissions Act would be invalid under federal law and could result in the dropping of serious charges, such as conspiracy and murder, against the most dangerous offenders.

“If you turn all these people loose, and someone comes to this country and sets off another bomb, guess who’s going to get blamed?” asked Mr. Addicott, who assists the military commissions prosecution office.

elbow counsel

Lt. Col. Acuff, a 52-year-old father of three who lost a 2006 election for Hamilton County General Sessions judge, is by all accounts a trusted confidant of Mr. Mohammed, although the soft-spoken military man living in Hixson will say only that he thinks his client likes him.

Lt. Col. Acuff survived the ax last summer when Mr. Mohammed fired his defense team, comprising two military and two civilian lawyers, and declared he would represent himself. Because he is required by law to have an attorney at his side, Mr. Mohammed hand-picked the tall lieutenant colonel with blond hair to be his “elbow” counsel.

In December, when the defendant indicated to the court that he wanted to plead guilty and be executed immediately, Lt. Col. Acuff was the only one sitting next to him.

“He’s pious and very polite. He’s one of the most polite clients I’ve ever dealt with, and I’ve dealt with a lot,” Lt. Col. Acuff said. “Mr. Mohammed wished me a Merry Christmas.”

According to Lt. Col. Acuff, Mr. Mohammed has discarded the scruffy look and more resembles a “mystic” with a thick salt-and-pepper beard and long white robe. The image is not unlike Osama Bin Laden himself, Lt. Col. Acuff noted, with whom the government claims Mr. Mohammed worked directly to orchestrate the World Trade Center attacks.

Mr. Mohammed speaks good English with a heavy accent, is a “very educated gentleman” and has probably lost “about 40 pounds” because of his regular fasting, Lt. Col. Acuff said.

Having initially only seen the mug shot of a disheveled prisoner, Lt. Col. Acuff said he “was shocked” at Mr. Mohammed’s more cultured appearance during their first face-to-face meeting last April.

path to gitmo

Guantanamo Bay, known in military circles as Gitmo, is “like ‘Groundhog Day’ every day — always sunny, never rains, 85 degrees,” Lt. Col. Acuff said.

He has been there 16 times and likes to eat in one of the open-air mess halls that overlooks the ocean. The only problem, he said, is that a barbed-wire fence obstructs the view.

When he enlisted in the Army after high school graduation in Indiana, Lt. Col. Acuff said he worked as a medic and thought his calling was to become a doctor. Instead, he decided to go to law school at the University of Tennessee in Knoxville, after graduating from East Tennessee State University in Johnson City.

“I just didn’t like organic chemistry,” he said.

Lt. Col. Acuff soon married his wife, Susan, now a school psychologist at Soddy-Daisy High School, and settled in Chattanooga in 1990. His first employer, veteran defense attorney John Cavett, said Lt. Col. Acuff was “low-key, didn’t get easily frazzled, and thoughtful about everything he did.”

Lt. Col. Acuff joined the Hamilton County public defender’s office in 1995 and remained there until 2006, when he lost the election for General Sessions judge.

When he went on active duty as an Army reservist in 2007 after attaining the rank of lieutenant colonel, the defense office of the military commissions was scrambling for military lawyers in the judge advocate general’s corps willing to defend Guantanamo Bay detainees.

In Washington to meet with defense-office supervisors, Lt. Col. Acuff assumed he’d be sent to Guantanamo Bay to deal with low-profile war prisoners, he said.

“I was interested in the defense of those cases because it appeared there really wasn’t a whole lot (of evidence), and people weren’t being given much rights,” Lt. Col. Acuff said from his Hixson home last week.

Lt. Col. Acuff said he believes, along with other legal scholars, that Mr. Mohammed’s case will land in the U.S. Supreme Court and become a vehicle either for challenging or defending the legitimacy of the United States’ approach to the global war on terror.

“This will certainly be the biggest historical thing I’ve done in my life,” Lt. Col. Acuff said.

“islam for dummies”

By early 2008, to prepare for Guantanamo Bay, Lt. Col. Acuff was reading “Islam for Dummies,” a move that didn’t surprise his wife, who describes her husband as “an avid reader with an incredible memory.”

Perhaps in a nod to how he feels about Guantanamo Bay, Lt. Col. Acuff also read “New Yorker” writer Jane Mayer’s expose “The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals.” The book, a National Book Award finalist, details how the Bush administration’s policy on anti-terrorism efforts, according to some, was developed largely by ignoring America’s constitutional and legal principles.

“I’m very proud of my husband,” Mrs. Acuff said. “We discussed how this would affect our family, but in the end, we just felt like it was an incredible opportunity to be a part of history in the making.”

Aside from his brief description of Mr. Mohammed, Lt. Col. Acuff said he is limited in what he can share regarding their interaction.

He declined to give details on the course the case might take in 2009, although it almost certainly will include a military’s judge’s ruling on whether the government can put Mr. Mohammed to death in the face of his wish to plead guilty. Such a plea is illegal under military law, and, according to opponents, would pander to the terrorism suspect’s wish to become a martyr.

“As things move along, I think we will hear more from Mr. Mohammed regarding how his religion has influenced his alleged actions,” Lt. Col. Acuff said.

As a “high-value detainee,” Mr. Mohammed’s every utterance is “top secret,” according to the laws of the military commissions. It is those laws that cut to the heart of the controversy at Guantanamo Bay, where military prosecutors are allowed to operate outside the parameters of U.S. federal law and where defense attorneys such as Lt. Col. Acuff claim the system is “very, very restricting.”

“The Military Commissions Act makes the defense of these cases almost impossible,” said David Nevin, an Idaho-based civilian attorney who travels to Guantanamo Bay to assist in Mr. Mohammed’s case.

Most notably, the Military Commissions Act makes it legal to use “enhanced interrogation techniques,” something detractors regard as a euphemism for torture.

The most notorious example of such techniques is waterboarding, an act that simulates the sensation of drowning. The government has admitted to using it on just three war prisoners, one of whom was Mr. Mohammed, the New York Times has reported.

DUE PROCESS

Lt. Col. Acuff does not apologize for his decision to defend Mr. Mohammed.

“This country has gone wrong where we have put people in jail, changed the rules and haven’t given them a quick and fair opportunity to hear their cases,” Lt. Col. Acuff said.

His colleague Mr. Nevin put it another way.

“I know that (Lt. Col. Acuff) feels very strongly that, if the justice system is going to function correctly, it has to operate the same for everybody,” Mr. Nevin said.

Mr. Addicott, director of the terrorism law center at the university in Texas, said the “current state of war” demands extra precautions for dealing with dangerous terrorists, but any perception that the prisoners are treated unfairly is ill-conceived.

“We have never tortured anybody in the war on terror. We have used interrogation tactics that are stressful and constitute duress, but nothing that rises to the level of torture,” Mr. Addicott said. “These military commissions provide more due process that any other military commission in the history of war.”

Lt. Col. Acuff, who is in Guantanamo Bay now and expects to be there until after the Jan. 20 presidential inauguration, said he understands that “people are uncomfortable with what I’m doing” but that he is guided by principle.

“It is more Christian to defend these people than to condemn them,” he said.