A View from the CT Foxhole: Bernard Kleinman, Defense Attorney
April 14, 2017
Bernard V. Kleinman is an attorney-at-law in White Plains, New York, who has been on the defense teams of several high-profile clients charged with terrorist crimes, including Ramzi Yousef and Khalid Sheikh Mohammed. He was part of Yousef’s defense team during the federal prosecution held in the Southern District of New York (SDNY) from 1996 to 2001 for the Bojinka plot and the 1993 World Trade Center bombing. Kleinman continues to represent him as his attorney of record both in New York and Colorado. Other clients include Wadih el-Hage, who was convicted in the SDNY for the 1998 East Africa embassy bombings, and Mamdouh Salim, who was charged in connection with the attack but convicted in the SDNY of other crimes, including the attempted murder of a prison guard. Both Salim and el-Hage, like Yousef, are being held at the Bureau of Prisons so-called “Supermax” Facility, ADX, located in Florence, Colorado. Kleinman also represented Nazih al-Ruqa (Abu Anas al-Libi) between his capture and transfer from Libya to the United States in 2013 until his death from liver cancer in 2015. As part of the Guantanamo military commission tribunal process, Kleinman has traveled to the detention facility in Cuba. He is currently one of the civilian counsel to the alleged al-Qa`ida operative Ammar al-Baluchi (who is Ramzi Yousef’s cousin), and provides assistance to the legal teams of alleged 9/11 mastermind Khalid Sheikh Mohammed (Yousef’s uncle) and alleged USS Cole mastermind Abd al-Rahim al-Nashiri.
CTC: For justice to be done, whether it’s in civilian or military courts, it is a bedrock principle of the U.S. judicial system that those charged with crimes are able to mount a proper defense. How have you sought to gain the trust of your clients?
Kleinman: It’s not always been easy. It is a matter of public record that some of those whom I have worked to defend include individuals with very hostile views against the United States and individuals who have suffered waterboarding, and other forms of alleged torture, while in U.S. detention. To establish a rapport and build trust, I find asking about their family and talking about my family helps. It creates a human connection. Only then do I start discussing the details of the case with them. I was downtown on the morning of 9/11 and saw what happened, and I was horrified and deeply traumatized like everybody else. But I never question my clients about whether they did what they are accused of doing because my role is contesting the government’s case. And I don’t discuss politics or religion unless they bring it up.
One client I have built a particularly strong connection of trust with is Ramzi Yousef, whose English is flawless. When we first met in person, at the Supermax facility in Colorado (ADX) after his convictions, he was extremely suspicious of lawyers because he was disappointed by the outcome of the trials. He asked me about my background and then asked me if I was Jewish. I replied that I was. He then asked me, “How do you feel about the Palestinian issue?” I replied, “You know, how I feel about the Palestinian issue is completely irrelevant, OK? Because I’m your lawyer, and I’ve been hired to represent you. And my politics and my religion have nothing to do with the representation you get.” He complained afterwards to the court saying he did not want a Jewish lawyer, but the court turned him down, ruling that under the 6th Amendment he was entitled to counsel but not counsel of his choice. Since then, over the last 19-plus years, we have developed a very close relationship—in person, on the telephone, and through correspondence. He’s a prolific writer and must have sent me over 2,000 pages of letters over the years. Trust with clients is important because without it you risk getting blindsided when the government introduces witnesses and evidence. By building this kind of relationship, I can ask my clients specifics such as “were you in this and this place?” and “did you meet this and this person?”
CTC: Over the many years you have represented alleged terrorist operatives, including al-Qa`ida figures, what have you learned about what motivated them and made them tick?
Kleinman: Grievances over American foreign policy are a very strong feature. From conversations with Ramzi, and his family members and others, it has been explained to me that the root of a lot of this is the Israeli-Palestinian issue and the United States’ support for Israel. Another key factor is anger over U.S. support for the House of Saud and presence, in past years, of the U.S. military in Saudi Arabia.
The religious dimension cannot be overlooked. They all have deeply held religious views and see themselves as defenders of their religion. This includes Ramzi Yousef. There were reports in the media that he had converted to Christianity while in Supermax, but he has made it clear to me he has never had any interest in doing that. Knowing him, it would be the kind of charade he would put on just to fool everybody because he has that kind of wry sense of humor.
In my personal interactions, I have not got the sense any of my clients are out-and-out religious fanatics. After all, they have accepted being represented by a Jewish attorney, as have any number of other accused terrorists. Another thing that needs to be stressed is these individuals are not 10 feet tall. Ramzi Yousef has, on more than one occasion, been ascribed MacGyver-type qualities, which is ridiculous. While they stand accused of terrible crimes, they are complex human beings with frailties and worries about their families’ future. The clients I have dealt with are accused of horrendous crimes, but they are not psychopaths.
CTC: How have the alleged al-Qa`ida operatives you have represented viewed the emergence of the Islamic State?
Kleinman: They are almost all disturbed by the emergence of ISIS, which they view as a corruption of Islam and greatly destructive to their religion. The alleged al-Qa`ida inmates I’ve spoken to do not see ISIS as representing the Way of the Prophet. That includes both convicted al-Qa`ida members and alleged members of al-Qa`ida, both in the U.S. and at Guantanamo, who have spoken to me about this since the rise of ISIS in 2014. You have to understand that whether at the Supermax facility or down in Guantanamo, they have access to news and watch channels such as CNN, so they know what’s going on.
They have a problem with several facets of ISIS violence, including its sectarian attacks on Shi`a. The standpoint of Abu Bakr al-Baghdadi is starkly different to Usama bin Ladin, who wanted the age-old schism between Sunni Islam and Shi`a Islam to be resolved. As it’s been explained to me, bin Ladin did not automatically condemn individuals because they were Shi`a. It was more a matter of converting them to Sunni beliefs. In contrast, ISIS views the Shi`a as apostates who need to be killed, and that is something that has been impossible for people like my clients and other accused terrorists I have discussed this with to accept. Nor do they see the caliphate ISIS has declared as legitimate. And they don’t believe that al-Baghdadi is really a Qureshi, part of the tribe of descent of the Prophet Mohammed, which he has claimed to legitimize his leadership.
Ramzi Yousef feels so strongly that ISIS is corrupting Islam that he has written a 250-page essay in Arabic with theological arguments repudiating the group, which he completed this year. His treatise is based on the Qur’an, the hadith, and religious commentaries. He utilized a lot of religious books to help him in his research, and he spent a lot of time on this. His hope is that this treatise can somehow be used to stop youngsters from joining ISIS. He has provided the document to me, and I have informed the U.S. Attorney’s Office, who so far has not shown an interest in publishing or otherwise using the text. But Yousef has made clear he does not expect any quid pro quo. He knows he is going to die in federal prison, although of course he would prefer not to be subject to the Special Administrative Measures [SAMs] he is currently under in Colorado. But he has made clear to me that he has devoted his efforts to this project solely, and I believe him, on the basis that he believes that ISIS does great harm to Islam throughout the world. I think it would be a waste for the United States, or the West, not to somehow try to make use of this treatise. Of course, ISIS will make the argument he has been pressured or coerced to write this because he is in U.S. custody, but this is a theological argument being made by Yousef which, to some degree, has to be taken on its own merits in terms of the religious argument and the citations of the Qur’an and the hadith.
And if you can create doubt in just one wannabe ISIS recruit about the religious legitimacy of ISIS’s actions, and by doing that save lives, then I think it would be worth it. ISIS, after all, has been lionizing figures such as Ramzi Yousef for years and other al-Qa`ida parties in custody, notwithstanding these individuals’ inability to control what is written about them in their propaganda—for example, using Ramzi’s detention as a recruiting tool in ISIS’s English language online magazine, Dabiq. And that’s even been used to justify the continuation of SAMs against Yousef. If the world knows the full scale of their distaste for ISIS, that might have some impact, especially because in the case of Yousef, this is his own writing, while whoever has been putting together Dabiq magazine has never met him.
CTC: Is it only the Islamic State that they’re worried about? Or is there any criticism of the modern-day al-Qa`ida?
Kleinman: There’s really no discussion of that. Their focus is on the threat ISIS poses to what they see as the true faith.
CTC: You have defended clients in terrorism trials in Article III courts in the United States and as part of the military commission process at Guantanamo. How would you compare the two approaches?
Kleinman: The first thing I’d like to say is for all the concerns about the military commissions, one thing that is not in doubt is the professionalism and dedication of the defense teams, including U.S. military personnel assigned to the cases, and here I’m talking about the JAGs (Judge Advocate General’s Corps).
But there has been a through-the-looking-glass aspect of the military commissions, where you never know what the rules are. It’s very difficult because there’s still a huge amount of classified material that’s not been turned over to defense counsel yet. And there are all sorts of issues that are classified that relate to alleged torture sites, for example, and what information related to such sites can be used.
There has been longstanding concern over the question of discovery. Even though I received a security clearance during a 10-month vetting process to be able to work on the cases at Guantanamo, a lot of sections in the materials we receive are redacted. And to compound the issue, the reasons for why particular sections are redacted are often classified above our clearance level.
Bigger picture, I can tell you, as inefficient as the Article III courts may be at times, they’re clearly exponentially more efficient than the military commissions. If the 9/11 defendants and the other defendants who are down there in death cases had been tried in Article III courts, the trials would be over and done with, and in all likelihood, either Khalid Sheikh Mohammed would have been executed or would have been serving a life term in Florence, Colorado. The cases in Guantanamo Bay have dragged on much, much longer than they should have. Some people there have been in custody for 15, 16 years, and there’s no trial date really in sight. Although the Presiding Authority has talked about some type of trials in 2018, nobody really anticipates that will happen. I personally would be surprised if any of the current proceedings are completed before the 2020s.
After they caught Khalid Sheikh Mohammed and the others way back in the first decade of this century, I thought they would be tried in New York. That was a logical place, and I don’t buy the argument about security concerns because there have been plenty of high-profile terrorism cases tried in New York. In New York, you have huge experience with this when it comes to prosecutors, with investigators at the FBI, with defense counsel who have tried these cases and understand the issues, and judges who have tried these cases and understand the problems that arise in them. One problem with New York might have been finding a jury without a personal connection to the 9/11 attacks, but you could have tried the cases elsewhere in the United States.
Instead, they transferred the defendants to Guantanamo and kept them there. And that, in a lot of ways, has benefited the defendants. As I said, I think it’s fairly well-recognized that if they had been tried in Article III courts, the cases would be over by now. Somebody like the Boston Marathon bomber Dzokhar Tzarnaev, for example, is much closer to being executed. But things just drag on and on down there, and as bad or as not bad as it is down there, it’s certainly better than being dead—at least the way I see it—and it’s certainly better than being in ADX—as they see it. Conditions down there are better there than at ADX, that’s for sure. For example, Ahmed Ghailani, who was down in Guantanamo Bay before being transferred to the United States for trial in federal court,a has made it clear that he’d much rather still be at Guantanamo Bay than in Florence, Colorado where he is now, from the point of view of conditions of confinement.
I do not believe that any of the accused that I know who are being held at Guantanamo have any interest in being transferred to Article III courts. At the same time, they’ve had these legal teams and are familiar with their lawyers and their investigators, and they’ve gotten a really close relationship with them and they trust them. But at the end of the day, the Office of Military Commissions is the system that has been created by Congress, and that’s the system that has to be worked out. I don’t think the military commissions will be shut down.
CTC: None of the alleged principal organizers of 9/11 have been convicted.
CTC: What other challenges have you faced defending individuals in terrorism cases?
Kleinman: One big challenge is traveling overseas to interview witnesses in parts of the world where there is suspicion against Americans or fear of speaking to one. At first, many assume I work for the intelligence services. One of the things that’s helpful before going to meet some of these individuals is to Skype with them. That way, they know the person that shows up to discuss [the case] with them is the same person they’ve already seen.
CTC: Based on your time with your clients, is there anything about the conventional wisdom regarding terrorist plots and attacks that you believe is wrong?
Kleinman: One thing that is not sufficiently understood is that for something like the Bojinka plot for the people who were involved in it, they were propelled as much by the engineering and physics challenge as by the notion of religious duty or their political beliefs. I always felt that whether it was Ramzi or some of the other individuals I dealt with, that if they’d been recruited by the CIA, they would have relished the challenge.
If you think about the Bojinka plot,b this idea of bringing down 12 U.S. flag carriers over the Pacific simultaneously is an incredible engineering feat. You have Ramzi’s perfection of the use of digital watches, timing devices, which was almost brand new in this area. Ramzi was extremely bright and inventive. You know, not just anyone can figure out how to make a bomb that’s not detectable by metal detectors and goes off three days later at a particular time at a particular altitude, 12 times. That’s pretty impressive.
That said, a number of the members of the first World Trade Center crew were really stupid people. I think the perfect evidence is that after the bombing, they go back to get their deposit back. This was almost like the gang that couldn’t shoot straight. The only smart one in the group was Ramzi.
CTC: Abu Anas al-Libi spent around a decade in Iran after 9/11. Based on your conversations with him and other clients, what is your understanding of the relationship between Sunni jihadis and Iran broadly?
Kleinman: Abu Anas al-Libi left al-Qa`ida to join the Libyan Islamic Fighting Group (LIFG) in the early 1990s.c Nazih [aka al-Libi] was a member of the LIFG going back to its origins, which predate al-Qa`ida. He “joined” al-Qa`ida in the Afghan war to fight Charlie Wilson’s War,d as it were. He, along with most of the other Libyans, was much, much more committed to ridding Libya of Qaddafi than in the political/religious goals of bin Ladin. When al-Libi came to Iran, he was questioned but was then relatively free to move around. He and other Libyans lived in Tehran. They could go out shopping and take their kids to school. They had to live in a certain area, but there were not as many restrictions, at least on the Libyans, as some have reported. They were pretty much left to themselves as long as they didn’t engage in any political activity or any religious proselytizing. They were allowed to pray as they wanted and have their own imams.e
One might think it’s odd that many Sunni al-Qa`ida members chose to flee to Shi`a Iran after the fall of the Taliban. But dealing with the al-Qa`ida clients that I’ve had and having discussed the role of Iran with them, I think there is an understanding of a common ground and that is that both are the enemies of Israel and the United States. Al-Qa`ida members have found that both they and the Iranians can agree that “my enemy’s enemy is my ally.” This is different from the way ISIS views the world and the role of Islam. From the al-Qa`ida point of view, there’s a certain pragmatism. The Iranians, from what I’ve understood from my clients, have also seen the benefit. From the Iranians’ point of view, it has been better to have members of al-Qa`ida in their country not shooting at them than on the other side of the fence shooting at them.
Even today, despite the Iranian intervention in Syria, some of my clients are more hostile to Assad, who they see as a greater threat to stability and peace in the Middle East actually than the Iranians or some of their surrogates.
CTC: As recounted in one of the articles in this issue of CTC Sentinel, al-Libi wrote privately to bin Ladin under the pseudonym al-Subayi,f describing conditions while in Iran.
Kleinman: Yes, that’s correct. That was his pen name. But the description in that letter of his treatment in Iran depicted significantly harsher conditions than he described to me in private conversations. He had been really close to bin Ladin and knew him in the Sudan, and they remained very close on a friendship level. But notwithstanding the unproven allegations of the U.S. government, al-Libi was not a member of al-Qa`ida after the early 1990s and never swore bay`a to bin Ladin.
CTC: From your understanding, when did al-Libi leave Iran?
Kleinman: Around 2010. It was at the beginning of the Libyan revolution. There was no love lost between the Iranians and Qaddafi, and he believed the Iranians let him and other LIFG members travel back to Libya because they viewed the LIFG as useful in overthrowing Qaddafi. They understood that the jihadis who had fought with bin Ladin against the Soviets in Afghanistan knew how to fight a war. From Abu Anas’ point of view, getting rid of Qaddafi was always the most important thing. When he left Iran, he was thrilled to go back and fight in the revolution, and he viewed the West as allies of the LIFG because nothing was worse than Qaddafi. They had seen friends tortured and killed by this mad man. Back in Tripoli, Abu Anas wasn’t an active fighter, but he was very well-respected among Libyan Islamist rebels because he had a long and dedicated history in the LIFG. And he knew Abdul Hakim [Bel-Hage and other LIFG leaders].
CTC: Within Tripoli, was al-Libi someone who had the credibility to motivate people to fight?
Kleinman: Yes, which turned out to be the pro-Western fight.
CTC: His presence in Libya appears to have been well known. The United Nations was provided a street address for al-Libi in Tripoli by Libyan authorities in late 2010.g What do you understand about the circumstances of his capture?
Kleinman: When U.S. Special Forces captured him in Tripoli in September 2013, he was really low-hanging fruit. He had a routine. He went out to pray before sunrise. About six months before he was seized, he had actually gone to the Libyan Ministry of Justice to find out whether the United States still wanted him, because he knew he was under indictment. On whether he was going to be arrested, he was told no. He was convinced that he was yesterday’s news. Though he was under indictment for the East Africa embassy bombings, even in the indictment his last alleged role in that plot [editor’s note: surveillance of alleged targets in Nairobi] was four years before the August 1998 Nairobi and Dar es Salaam bombings (i.e. in 1994).
CTC: How do you see the threat of global terrorism evolving?
Kleinman: I think it’s important for the decision-makers, whether it’s here in the U.S. or Western Europe or Australia or wherever they may be, to really understand that terrorism goes through an evolutionary process, and how terrorists express their actions is going to change over time. There was a time when al-Qa`ida was more focused on clearly definable targets. That made a difference, whether it was the World Trade Center, which for them was the symbol of American economic power, or the Pentagon, obviously, or the bombing of the USS Cole, which was a military target. With ISIS, what this has evolved into is the completely arbitrary killing of individuals in both the West and Arab and Muslim world. That has made no one feel safe anywhere. CTC
[a] Editor’s note: Ghailani was convicted in federal district court in Manhattan in 2010 on one count of playing a role in the East Africa embassy bombings and acquitted of all other charges. Benjamin Weiser, “Detainee Acquitted on Most Counts in ’98 Bombings,” New York Times, November 17, 2010.
[b] Editor’s note: According to the 9/11 Commission report, Khalid Sheikh Mohammed and Ramzi Yousef, while in the Philippines in 1994, began planning the so-called “Bojinka plot,” the “intended bombing of 12 U.S. commercial jumbo jets over the Pacific during a two-day span.” The 9/11 Commission stated the two men “acquired chemicals and other materials necessary to construct bombs and timers” and “cased flights to Hong Kong and Seoul that would have onward legs to the United States.” Yousef was convicted in connection with the plot in a trial in the Southern District of New York. National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report, 2004, p. 147.
[c] Editor’s note: Anas al-Libi left al-Qa`ida after Qaddafi put pressure on the government of Sudan, where al-Qa`ida was then based, to expel Libyans. Tim Lister and Paul Cruickshank, “Exclusive: Senior Al-Qa`ida Figure ‘living in Libyan capital,’” CNN, September 27, 2012.
[d] This is a reference to George Crile III’s 2003 book by the same name, which details U.S. Congressman Charlie Wilson’s efforts to support the Afghan mujahideen during the Soviet-Afghan War in the 1980s.
[e] Editor’s note: Al-Qa`ida operatives like Sulayman abu Ghayth have said they and their families were confined to residential quarters in Iranian military facilities. See Assaf Moghadam, “Marriage of Convenience: The Evolution of Iran and al-Qa`ida’s Tactical Cooperation,” CTC Sentinel 10:4 (2017).
[f] Abu Abd al-Rahman Anas al-Subayi. See Moghadam.
[g] Tim Lister and Paul Cruickshank, “Exclusive: Senior Al-Qa`ida Figure ‘living in Libyan capital,’” CNN, September 27, 2012.