Terrorism Trials & Investigations

Next Week in the 9/11 Case

By Wells Bennett
Wednesday, February 5, 2014, 11:51 AM

Ordinarily, on a day like today, yours truly would remind the Interwebs’ military commission-watchers of a pretrial hearing, next week, in the 9/11 case.  Usually I would make a plug for Lawfare’s coverage.  I might also preview the legal issues to be addressed at length, or do so only in scant fashion, with only reference to the list of motions scheduled for argument.  But one way or another, I would try to give folks some flavor of what’s in store.

But today is a little different. So far as I can tell, there might not be a hearing on next week, after all.

When we last checked in at Guantanamo, repeated in-court outbursts by one defendant, Ramzi BinalShibh, prompted the prosecution to raise questions about his mental health.  (The matter also had come up doing the case’s first go-round at Guantanamo.) At the government’s urging, the military judge instructed an outside board to examine Binalshibh’s “mental capacity or mental responsibility."  At the same time, Judge Pohl suspended hearings in the case, pending the assessment’s outcome. Prosecutors had asked the court nevertheless to allow some proceedings  to go forward in the meantime, but that request was rejected.

The examination’s expected end-date was February; thus the docketing of a pre-trial session for next week, as per usual. But here’s the thing: as Carol Rosenberg has reported, Binalshibh refused to cooperate with the board’s effort to assess him---and thus precluded the board from reaching any conclusions. So what does that mean for next week?

So far we have one clue.  The prosecution yesterday filed an as-yet unsealed motion, and judging by its docket entry, the government therein seeks an April hearing regarding Binalshibh’s competence. Assuming the court’s view of procedure remains unchanged---and all other in-court sparring can’t resume in earnest until Binalshibh’s status is addressed---then the effect of the filing seemingly would be to push back pretrial litigation until the April session or afterwards.  To be sure, my sense is that the government remains as keen as ever to take as many matters before the court as it possibly can, if at all possible; Carol yesterday tweeted that prosecutors additionally have asked for a one-day hearing next week---presumably without the accused present.

All of which is to say: the odds are good that next week’s hearing will be severely cut down, if not cancelled outright.