GUANTANAMO BAY NAVY BASE, Cuba -- Questions of conflict of interest and an alleged 9/11 plotters competency to stand trial derailed a hearing Monday on whether to continue prosecuting all five alleged 9/11 conspirators, or to split off Ramzi Bin al Shibhs case for a separate trial.
Last month, the judge severed the Yemenis case, citing delays caused by an ongoing conflict question that has arisen from a murky FBI investigation of Bin al Shibhs defense team and a prosecution bid to find Bin al Shibh competent to face trial.
Case prosecutor Clayton Trivett asked the judge Monday to reverse himself and hold a five-man trial, citing additional trauma two trials might inflict on the families of the 2,976 victims of the Sept. 11, 2001 terrorist attacks.
To which Jim Harrington, Bin al Shibh's death-penalty defender, replied that his side had yet to arrive at a position, noting that by war court rules they have until Wednesday afternoon to reply to it.
But Harrington also presented a chicken-and-egg dilemma about what could come first for his client: Consideration of splitting off his case or the conflict-of-interest question that arose in April after an FBI agent secretly questioned a Bin al Shibh defense team member.
Harrington noted that his team lost four members since April over it. Now, he said, the Pentagons chief defense counsel had just last week assigned an independent counsel to bone up on the case and advise Bin al Shibh independently of his current defense team on the conflict-of-interest question.
Trivett, who wants Bin al Shibh tried with alleged mastermind Khalid Sheik Mohammed and the three other co-defendants, dismissed the issue as a stalling tactic. He told the judge the prosecution was walled off from involvement in the conflict question but could dispense with the competency issue by 2015.
This is a capital case, he told the judge, and clearly capital defense counsel's goal, every day that their client is still living is a victory.
Bin al Shibh, 41, watched the proceedings as the lone accused 9/11 plotter in the court. He offered none of the outbursts that have prompted Pohl to eject him from earlier pretrial hearings. He sat alongside his translator, speaking animatedly at the start of the hearing, with a woodland pattern hunting visit atop his traditional white attire.
The Yemeni usually sits in court behind Mohammed and another accused co-conspirator, Walid bin Attash. But for this occasion their seats were empty.
Under the judges tentative timetable the other four accused could be brought to court Thursday. Meantime, there was no war court hearing scheduled for Tuesday. This weeks pretrial hearings were scheduled for the week, with a Pentagon shuttle evacuating war court staff back to Washington D.C. Friday.
Miami Herald reporter Carol Rosenberg tweets @carolrosenberg