The Washington Post reports that the presiding judge in the military commission prosecution of the 9/11 plotters has severed from the still unscheduled trial one of the five defendants, Ramzi Binalshibh. That means that, if ultimately tried at all, Binalshibh would be tried separately, who knows when.
As related in the report, the ruling seems very strange. The judge, Army Col. James L. Pohl, is said to have explained, as the Post puts it, that “the court needs to resolve whether Binalshibh has the mental capacity to participate in the trial.” This is difficult to square with the report’s simultaneous assertion that “neither the government nor Binalshibh’s lawyer argue that he is mentally incompetent.” To be sure, there have been questions for years about the terrorist’s mental state; but one of his civilian lawyers insisted to the Post that Binalshibh wanted to go to trial with his co-defendants. He did not wish to be severed.
There is also said to be a conflict-of-interest issue to sort out, but that claim, too, does not fare well under scrutiny.
Earlier this year the FBI began probing a defense leak of a manifesto written by Binalshibh’s more notorious co-defendant, Khalid Sheikh Mohammed. The manifesto was among the many documents covered by a court non-disclosure order. As I detailed in a National Review column, the Bureau ended up interviewing a contract “security officer” responsible for giving Binalshibh’s defense team access to sensitive discovery materials. The security officer’s employer alerted the defendant’s lawyers about the investigation, causing them to complain to the court.
Theoretically, if a defense attorney is alerted to the fact (or at least, the likelihood) that the government is investigating him for possible wrongdoing, that could create a conflict of interest with his client. The lawyer could have a motive to curry favor with prosecutors in order to persuade them not to charge him; that, the thinking goes, could induce him to represent his client less zealously. It is difficult, however, to see that happening here. Not only is the potential conflict highly speculative; the Post reports that the FBI closed its investigation more than two months ago without filing charges.
At this point, the commission judge is considering a variety of pretrial motions filed by all five defendants. That process is expected to last until at least the end of the year. Based on what we know at the moment (and admittedly, there are always things we don’t know – things known only to the litigants in a trial), there seems to be no reason why any potential conflict-of-interest question could not easily be resolved in the next five months – in time for Binalshibh to be tried jointly with his co-defendants. Indeed, I’m betting that the judge has at least a few issues more difficult than that one to deal with.
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.