A military judge ruled Thursday that one of the five defendants being tried at Guantánamo Bay, Cuba, for their alleged roles in the Sept. 11, 2001, attacks be severed from the proceeding.
The decision delivers another in a series of delays to the government’s effort to prosecute Ramzi Binalshibh, a Yemeni described as a key figure in the plot who acted as a liaison between the hijackers and al-Qaida’s leadership in Afghanistan.
But the order could accelerate pre-trial proceedings for the four others, including the self-proclaimed mastermind of the attacks, Khalid Sheik Mohammed.
Army Col. James Pohl said the court needs to resolve whether Binalshibh has the mental capacity to participate in a trial and whether he needs another lawyer because of a potential conflict of interest after the FBI questioned members of his defense team.
These issues “are not expected to be completed in the near term,” Pohl said in his order.
Brig. Gen. Mark Martins, the chief prosecutor, said he hopes to begin selection of a panel of military jurors in January.
Defense lawyers for the accused say that they do not anticipate a trial that soon, and that one for Binalshibh now seems quite distant.
“This now means this case has to be tried twice,” said James Harrington, a civilian lawyer for Binalshibh, who said he wished his client had been allowed to go on trial with the others. “Given the pace of the proceedings so far, that means the first trial and certainly the second trial would be a long time into the future.”
“The government is studying the Military Commission severance order and has the flexibility to adjust if required,” said Lt. Col. Myles Caggins III, the Defense Department spokesman for military commissions.
Binalshibh and the four other defendants, who were taken to Guantánamo Bay in September 2006 after being held at secret CIA prisons overseas, were first charged in 2008 under the George W. Bush administration.
Those proceedings were suspended by the Obama administration, which had hoped to try the men in New York.
When that effort collapsed, military charges, which carry the death penalty, were reinstated in May 2011, and the prosecution has been in pre-trial proceedings since then, frustrating the victims’ families, who had hoped to obtain much swifter justice.
Harrington described the judge’s decision to sever Binalshibh from the four other defendants as “highly unusual. Any court is going to want to try to keep this case together.”
Questions about Binalshibh’s mental competence have been raised before. A military medical board in 2008 said Binalshibh might have a “severe mental disease.” At one point, he was taking a variety of psychotropic medications, according to court records.
Earlier this year, prosecutors asked the judge to evaluate Binalshibh after he repeatedly interrupted court proceedings and had to be removed because he ignored warnings to stop the disruptions. However, neither the government nor Binalshibh’s lawyer argue that he is mentally incompetent.
“The judge’s decision today seems to indicate that the issue of competency is still open,” Harrington said. “We have to clarify that with him.”
Last year, the FBI received information about the possible disclosure of classified information at the U.S. military prison at Guantánamo Bay and opened an investigation.
The investigation ended several months later in May without charges being filed.
But as part of the investigation, FBI agents interviewed a couple of people on Harrington’s team and a linguist assisting the legal team of Mohammed.
Harrington said he had to know the details of the FBI investigation to figure out whether there was a conflict of interest, but agreed with the judge’s decision to appoint an independent party to sort out the issue.