AFP

APPEARING in court for the first time since his capture five years ago, Khalid Sheikh Mohammed, the self-confessed mastermind of the 2001 terrorist attacks on the United States, brushed aside a warning from the military judge that he could face the death penalty, saying that he had wanted to “be a martyr for a long time”, adding, “I will, God willing, have this by you.”

The pre-trial hearing of Mr Mohammed and four others charged with conspiracy and mass murder “in violation of the laws of war”, in relation to the 2001 attacks, was the highest-profile test so far of the controversial military commissions. These were set up by President George Bush to try suspected terrorists, charged with war crimes, being held at the American naval base in Guantánamo Bay in Cuba.

So far 20 detainees have been indicted, excluding Mohammed al-Qahtani, the alleged “20th hijacker” involved in the September 11th attacks. But all charges against him were suddenly dropped, without explanation, last month. Although dozens of pre-trial hearings have been held before the tribunals, no actual trial has yet taken place. One of those charged, David Hicks, an Australian, pleaded guilty last year before his case went to trial.

The trial of Salim Hamdan, Osama bin Laden's former driver, had been due to begin on June 2nd, but the presiding military judge, Keith Allred, decided to postpone it until after the Supreme Court announced its eagerly awaited judgment on whether Guantánamo detainees have the right to challenge, before American federal courts, their indefinite detention. This, Judge Allred said, would permit all parties “to have the benefit of a decision that may well change the tenor or conduct of the trial,” as well as avoiding “potential embarrassment, waste of resources, and prejudice to the accused”. The ruling is expected by the end of this month.

For now the focus remains on Mr Mohammed and his four alleged co-conspirators. The Pakistan-born Kuwaiti's appearance has changed dramatically from the photograph of a fat, dishevelled man in a T-shirt with an unshaven face that was flashed around the world after his capture in Pakistan in 2003. Now considerably thinner, he appeared in court wearing thick prison-issue glasses, a long white tunic with matching white turban, and sporting a long grey beard. Speaking in brisk but broken English, interspersed with occasional Koranic verses, he denounced the court as illegitimate, refused to accept a lawyer and said he would represent himself.

Although the military commissions have improved greatly since they were first set up in 2001, particularly since the Supreme Court ruling in 2006 deeming the original model to be unconstitutional, they are still severely criticised. The Pentagon insists that the detainees will get all the normal due-process rights accorded to American defendants—the right to remain silent, to cross-examine witnesses, to be represented by a lawyer, to remain present during the presentation of evidence and so on—as well as having three different levels of appeal all the way to the Supreme Court.

But critics claim that classified evidence will not be heard in open court. Furthermore, they say that information extracted under harsh interrogation techniques, such as “water-boarding” (simulated drowning), will be admissible. Before being taken to Guantánamo in September 2006, with 11 other suspects, Mr Mohammed was held for three years in secret CIA prisons abroad where he was subjected to water-boarding as well as other harsh procedures, as the CIA itself has admitted. He claims that he and the other defendants were tortured. All face execution if convicted.

Colonel Morris Davis, a former chief prosecutor at Guantánamo, is now one of the fiercest detractors of the military commissions. Appearing as a defence witness on behalf of Mr Hamdan in April, he claimed that the tribunals were subject to political interference, saying that he had “significant doubts” about whether they would deliver “full, fair and open hearings”. As chief prosecutor, he had been told by his military superiors that there could be no acquittals he claimed. He feared the possibility of “rigged outcomes”.