A military mental health board has told the 9/11 trial judge that it couldn’t evaluate the competency of an accused Sept. 11 plotter, two defense lawyers said Friday, casting doubt on resumption of hearings next month at Guantánamo.
The judge, Army Col. James L. Pohl, froze the pretrial proceedings in December after case prosecutors requested a U.S. military mental health exam of Ramzi bin al Shibh, an alleged deputy in the 9/11 plot.
But Bin al Shibh, 41, refused to answer their questions, and the three-member U.S. military mental health board notified the judge this week that they don’t know whether he’s fit to stand trial.
“They can’t say because he didn’t talk to him,” said James Harrington, Bin al Shibh’s civilian defense attorney in the death-penalty case. “It’s inconclusive because they’ve not been able to interview him in-depth.”
The prosecutors asked the judge to determine Bin al Shibh’s competency after Pohl four times in two days ejected the Yemeni captive from pretrial hearings for being disruptive. During the outbursts, Bin al Shibh separately called the judge and the prison warden “a war criminal.”
At issue is not whether Bin al Shibh was competent on Sept. 11, 2001, when 19 hijackers comandeered four U.S.airplanes and drove them into the World Trade Center, Pentagon and a Pennsylvania field, killing almost 3,000 people.
At issue is whether he’s sane enough now, after 11 years in U.S. custody, to work with his lawyers and participate in the capital trial of Bin al Shibh, alleged 9/11 mastermind Khalid Sheik Mohammed, and three other alleged terrorists. Bin al Shibh is accused of helping the hijackers from Hamburg, Germany.
Bin al Shibh says someone at his clandestine Camp 7 lockup has systematically disrupted his sleep through noises and vibrations. His lawyers have asked the judge to do something about it. Prosecutors say they checked and the prison denies anyone’s doing anything wrong. His outbursts in court have focused on his claims of sleep deprivation, which Harrington said Friday Bin al Shibh says have continued.
In December, prosecutors argued they should be allowed to continue with certain aspects of the pretrial arguments in the five-man case even with the competency question on the table. Pohl disagreed, and froze the proceedings for all five men.
During a Bush-era attempt to put the Sept. 11 accused before a military tribunal, Bin al Shibh similarly thwarted such a finding by refusing to meet with mental health experts, including one chosen to work for the defense, according to military sources.
Pohl has scheduled a week of 9/11 pretrial hearings for Feb. 10-14 at Guantánamo. The Pentagon has already announced plans to airlift media, lawyers and other trial officials to the remote base in southeast Cuba two days beforehand to set up.
At the Pentagon, spokesman Army Lt. Col. Todd Breasseale had no comment on whether the latest development meant a week of pretrial hearings were now impossible.
The five alleged 9/11 plotters were formally charged in this case on May 5, 2012. Technical and other legal issues, many of them alleging U.S. government meddling in the attorney-client relationship, have slowed the pretrial proceedings.
No trial date has been set but the case prosecutor, Army Brig. Gen. Mark Martins, has proposed selection of a military jury from on a pool brought to Guantánamo in January 2015.
This is the second attempt to stage a war crimes tribunal in the case in Guantánamo. During the Bush era, Bin al Shibh similarly thwarted resolution of the competency question, then raised by his defense lawyers, by refusing to meet with mental health experts.