One of five men facing trial by military commission for the Sept. 11 terrorist attacks may be dropped — again — from the case so proceedings can resume at the U.S. Navy base at Guantánamo Bay, Cuba.
A military judge said in a scheduling order released Wednesday that he wants to reconsider whether Ramzi Bin al Shibh, 42, should be tried separately from four other co-defendants as the first order of a business at a hearing at the base on Feb. 9.
The Yemeni allegedly helped run the Hamburg, Germany, cell of hijackers in the Sept. 11, 2001 attacks that killed nearly 3,000 people. Prosecutors are seeking the death penalty in the military tribunal.
In July, Army Col. James Pohl severed Bin al Shibh from the case because of the “inordinate delays,” caused first by questions about whether the Yemeni is mentally competent to stand trial and later by the revelation that the FBI had interrogated a member of his defense team, creating a potential conflict of interest.
Prosecutors appealed, and persuaded the judge to reverse himself. They argued that separate trials would be expensive, harder to try and would “inflict a massive emotional toll on the thousands of victims’ families.”
Pohl said in his order he wants to re-visit the issue of severance because questions about the potential conflict, which the prosecution said would be resolved by the fall, have prevented the court from hearing motions on other pretrial legal issues.
All five defendants face charges that include terrorism and murder and could get the death penalty if convicted. They were arraigned in May 2012; the start date for a trial has not been set.
More about the Sept. 11 mass murder trial at Guantánamo here.