It is hard to fathom how so unlikely a conflict could provoke a severance that would call for multiple trials in a complex case that has already been delayed for years. It is at least equally hard to rationalize a severance based on mental incompetence under circumstances where the defendant is neither claiming mental incompetence nor seeking a severance. Federal law presumes that defendants who are indicted together in the same conspiracy should be tried together – a practice that saves time and resources while avoiding the potential scandal of inconsistent verdicts and the unfair advantage otherwise attained by the later-tried defendants (who, unlike their co-conpirators, get a complete preview of the prosecution’s case before having to defend against it). In big complex conspiracy cases, judges usually take great pains to avoid granting a severance, even when defendants are demanding one.
It is no secret that the Obama administration detests military commissions. Attorney General Holder has been unseemly in disparaging the military justice system by publicly complaining that the 9/11 case should be in civilian court even as military prosecutors struggle to proceed. The families of many of the victims understandably suspect that the administration is sabotaging the commission behind the scenes. Unless there is a better explanation for severing Binalshibh, which would cause even more months or years of delay, those suspicions will intensify.