The military judge froze all pretrial proceedings in the Sept. 11 case on Thursday and ordered a mental-health examination of alleged 9/11 plotter Ramzi bin al Shibh to determine if he’s fit to face the death-penalty trial.
In the best-case scenario, hearings laying the foundation for the eventual death-penalty trial of alleged Sept. 11 mastermind Khalid Sheik Mohammed and four accused accomplices could resume in mid-February. A defense lawyer, however, said the sanity board request sought by case prosecutors could suspend litigation for up to a year.
Army Col. James L. Pohl, the judge, ordered the evaluation at the request of the case prosecutor. Pohl had four times in two days this week ejected the Yemeni captive from the courtroom for being disruptive and complaining that guards were subjecting him to sleep deprivation through noises and vibrations at his secret prison lockup.
Wednesday, the 41-year-old Yemeni yelled in court that the Army colonel now serving as the Guantánamo prison warden was “a war criminal.” Tuesday he called the judge a war criminal, too.
Case prosecutor Clay Trivett announced the government request for the examination, then argued briefly that certain aspects of the pretrial hearings in the complex, five-man conspiracy case could go forward. Defense lawyer James Harrington opposed the examination but said, once ordered, the proceedings must come to a standstill.
The judge agreed and canceled the remainder of this week’s hearings. Pohl clarified with the prosecution that the issue was strictly limited to Bin al Shibh’s current competency to stand trial, not whether he was mentally competent at the time of the terrorist attacks that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon on Sept. 11, 2001.
Now it will be the judge’s job to craft an order for the so-called 706 examination: Instructing a military medical commander to assemble a three-doctor panel with access to Top Secret information and Bin al Shibh to evaluate his mental health.
Pohl had done this previously in Guantánamo’s other death-penalty case involving the alleged USS Cole bomber, Abd al Rahim al Nashiri. If Pohl follows that model, he will write a series of questions for the mental health experts to answer — a portion that will be made public advising on the overarching issue of competency and a portion that will be sealed for Bin al Shibh’s defense team.
The Nashiri process took nearly two months, from early February to late March, a period that did not span the holiday season. It found Nashiri, who was waterboarded by the CIA, suffered Post-Traumatic Stress Disorder but was fit to stand trial.
But Harrington said after the session that the prosecution and defense still have to haggle over aspects of how the sanity board would be conducted. Open questions include whether a defense lawyer would be with Bin al Shibh when he speaks with the military’s psychiatrists; whether the interview will be videotaped, and the contours of the questions the judge will put before the board.
Harrington said he could foresee litigation on some of those questions at the next Guantánamo hearings in the case, Feb. 10-14, before the mental health experts start work. In which case, he said, the hearings might be put on hold for “months and months, for up to a year.”
Bin al Shibh sat quietly in court Thursday throughout the brief hearing, as did the alleged plot mastermind and Mohammed’s nephew, Ammar al Baluchi, accused as an accomplice. Two of the defendants voluntarily skipped the hearing.
Pohl pointedly asked the prosecutor whether the government was proposing splitting Bin al Shibh’s case off from the others, a mechanism that would let him be tried separately and hearings proceed in the case against the other four. Trivett said no.
Bin al Shibh, accused of organizing the Hamburg, Germany, cell of the Sept. 11 hijackers, is the longest-held of the 9/11 trial defendants. He was captured in Pakistan on Sept. 11, 2002. He has often used the pretrial hearings, meant to set conditions for the eventual death-penalty trial, to air complaints about his conditions of confinement.
As far back as 2009, he complained through his lawyer that guards were pumping foul smells and loud noises into his cell and vibrating his bed. In September, judge Pohl ejected him for shouting about impediments to the attorney-client relationship. And in August he asked to be taken back to his holding cell after an outburst about an insufficient lunch.
His defense lawyers argue he’s not delusional and have provided a filing from a former prison psychiatrist, a lieutenant colonel, who ruled out psychosis and therefore delusions.
“A patient in Ramzi bin al Shibh’s condition cannot accurately be assessed for Delusional Disorder — Persecutory Type,” the Army doctor wrote June 21. “Feelings of persecution are consistent with being detained as an enemy combatant and being prosecuted for war crimes.”
Still, Harrington said the limited scope of the coming mental health assessment would likely not allow the judge’s so-called sanity board to investigate the source of the vibrations and other noises that Bin al Shibh says plague his sleep.
This is not the first time Bin al Shibh’s mental health will be evaluated by the U.S. military. During the Bush-era military commissions another judge ordered a similar competency exam for Bin al Shibh. But the issue was never resolved. After President Barack Obama was elected, his administration abandoned that case to reform the war court system and briefly planned to move the trial to New York.