Military Commissions

12/19 Motions Session #1: Bin Al Shibh's Capacity, and a Quick End to the Hearing

By Wells Bennett
Thursday, December 19, 2013, 9:34 AM

The military judge ascends the bench at Guantanamo; our proceedings resume, with Walid Bin Attash and Mustafa Al-Hawsawi having absented themselves.  Did they do so voluntarily?  Yes, according to the prosecution’s witness, a JTF GTMO officer again testifying under a pseudonym.

Ramzi Bin Al Shibh is one of three detainees in the courtroom.  A question has arisen, perhaps in light of his outbursts and forced removals from the courtroom, and complaints of being subjected to sounds and vibrations by the JTF guard force.

Does he have the mental capacity to stand trial?

Pursuant to Rule 706, prosecutor Clay Trivett has brought this to the court’s attention, apparently on an emergency basis.  Despite his urgency, Trivett nevertheless thinks the examination need not put the case on hold altogether.  The accused is presumed competent, says Trivett, so at least some pre-trial proceedings can go forward, pending an examination of Bin Al Shibh’s fitness for a still-far-off trial.  The military judge disagrees, and thinks the examination would halt proceedings outright.  Thus, if the prosecution truly wants a capacity inquiry, then the court would allow for one---but that would mean putting the case on pause.  James Harrington, Bin Al Shibh’s Learned Counsel, opposes this examination by an outside board.  But the government’s request for it is granted by the military judge.

Because there has been no severance, Judge Pohl rules, no further open hearings will be conducted in this case until Bin Al Shibh’s status is determined by a Rule 706 board.  (It appears the prosecution’s argument on AE008, a defense motion to dismiss for defective referral, will be put off.) Thus we’ll reconvene in February---assuming that the assessment of Bin Al Shibh’s mental state can be completed between now and then.

A lightning-fast hearing thus concludes.  Until next time.