Guantánamo judge bows to prosecution, reinstates joint 5-man 9/11 trial

The military judge in charge of the 9/11 terrorism trial bowed to a Pentagon prosecution protest Wednesday and agreed to go forward with a single, five-man, Sept. 11 death-penalty tribunal.

The judge, Army Col. James L. Pohl, had separated alleged 9/11 plot deputy Ramzi bin al Shibh, 42, on July 24 to have his own trial. He cited bin al Shibh’s unique conflict-of-interest and competency issues as slowing progress in the trial of alleged Sept. 11 mastermind Khalid Sheik Mohammed and three other accused co-conspirators.

But prosecutors protested, in part, by citing the potential trauma that two trials might inflict on the families of the 2,976 people killed on Sept. 11, 2001, when 19 hijackers allegedly trained and funded by the five defendants crashed passenger planes into the Pentagon, the World Trade Center, and a Pennsylvania field.

Prosecutor Clayton Trivett also argued on Wednesday that the U.S. government had specifically built Guantánamo’s $12 million expeditionary legal complex for the joint 9/11 trial. He argued that if the judge finds reasons later to split the trial, that would be more appropriate closer to the actual tribunal.

Pohl also ordered all five defendants to be brought to court on Thursday for the resumption of pretrial hearings that stalled over whether some defense teams were compromised by an FBI probe that secretly questioned some team members. When the court last met on June 16, a special Department of Justice counsel pledged in open court that nobody in the U.S. government was spying on the Sept. 11 defense teams.

Earlier in the day, Jim Harrington, bin al Shibh’s civilian defense attorney, filed a brief supporting the judge’s decision to remove bin al Shibh from the case.

“He does not want his case to interfere with the others,” said Harrington.

Bin al Shibh, from Yemen, is accused of organizing the Hamburg, Germany, cell of hijackers and aspiring to be one of them — so much so that, according to the charges, he recorded a “martyr’s video.”

Harrington specifically cited upheaval in the bin al Shibh defense team by the discovery of an apparently now closed FBI investigation. A security officer spoke secretly to the FBI, and was fired, as have three other team members, one a U.S. military officer functioning as a behind-the-scenes lawyer. Agents also questioned other accused defense team members.

Trivett countered in court Wednesday that the conflict issue could be resolved swiftly, something Harrington disputes. The judge has ordered the appointment of an independent defense counsel to advise bin al Shibh and help him decide whether he believes his defense team has been compromised, whether he wants to keep them anyway or get new lawyers.

Also at issue is bin al Shibh’s ongoing complaints about noises and vibrations at his secret lockup, Camp 7, which the prosecution denies is happening. Harrington added Wednesday that the guards taunt the accused terrorist when he complains about what he sees as orchestrated sleep deprivation. Pohl announced that he’ll allow defense attorneys to call witnesses and seek evidence to explore the issue.

Miami Herald reporter Carol Rosenberg tweets @carolrosenberg

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