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August 13, 2014

Judge Puts 9/11 Case Back Together Again

This is a cross-post from The Huffington Post.

After unexpectedly deciding to split the 9/11 case into two trials last month, a military commission judge reversed himself and decided on Wednesday to put the severed case back together again. At least for now.

Government prosecutors in the Guantanamo Bay courtroom on Monday had argued vehemently that splitting up the five-defendant trial -- arguably the most important and complex murder and terrorism trial in U.S. history -- would cause serious problems for the 9/11 victims' families, the government's witnesses, and the lawyers. "We have more victims and victim families in this case than in any other in the history of the United States," prosecutor Clayton Trivett told the judge, Army Colonel James Pohl, on Monday. Splitting the trial into two separate cases would mean having to present much of the complex international conspiracy case twice to two separate juries before the justice process would be completed.

Meanwhile, Trivett argued, none of the usual reasons for severing a trial are present in this case. In particular, none of the five men, accused of masterminding the 9/11 attacks, had argued that they are prejudiced by being tried together, which is usually the reason judges sever a trial. Judge Pohl had come upon the idea himself.

On Monday, Ramzi bin al Shibh, whose case would have been tried separately had the judge's ruling stood, hadn't yet decided whether he wanted a separate trial or not. (By Wednesday, he'd decided he did.) Judge Pohl had decided on his own last month, without request from either party, to sever bin al Shibh's case because it raises some unusual issues that could take months to resolve.

In particular, the government has questioned whether bin al Shibh is mentally competent to stand trial, because he claims he hears noises in his prison cell. (The commission has not yet determined whether the noises are real or imagined.) There's also an unresolved question of whether bin al Shibh's lawyers have a conflict of interest in continuing to represent him, because, as discussed in court in April, his lawyers learned that the FBI had secretly questioned a member of his defense team and tried to recruit him as an informant. The FBI has not explained why it wanted to spy on bin al Shibh's lawyers. But the judge has agreed to appoint independent counsel to represent bin al Shibh to determine whether the FBI investigation destroyed the attorney-client confidentiality to which bin al Shibh is entitled. The Justice Department also had to appoint a special legal team to handle the confidentiality matter for the government. The military commission prosecutors say they didn't know the FBI was spying on defense counsel in the case. They now insist the spying did not create a conflict because the FBI says it has dropped its investigation.

Judge Pohl's decision to sever the case in July was an effort to move the proceedings forward after getting bogged down in procedural problems from the beginning. From the arraignment two years ago, where defendants' refusal to cooperate created a circus-like atmosphere that continued for 13 hours; to defense claims that various forms of government eavesdropping on defense lawyers were interfering with their ability to maintain the necessary confidential attorney-client relationship; to questions about whether the accused men would be permitted to speak about their experiences being tortured by government agents; this military commission case has raised a litany of complicated problems that don't arise in even the most complex civilian federal court cases. That's left the judge and often the lawyers at a loss on how to handle them. Because the military commissions were only created after the September 11 terrorist attacks, they operate with little or no precedent to guide them. Civilian federal courts, by contrast, routinely handle complex terrorism cases, and have convicted more than 500 individuals on terrorism-related charges since 9/11. Both the substantive law and procedural rules that guide those cases are clear and have decades' worth of binding precedent interpreting them.

Also, unlike civilian federal cases, which take place in federal courthouses all over the United States, all military commission hearings must take place at Guantanamo Bay in Cuba. That significantly exacerbates the delays in handling whatever issues arise. For one thing, the defense attorneys have limited access to their clients at Guantanamo, so need additional time to reach and consult with them. In addition, there are often months between hearings due to the logistical difficulties of the government having to fly all the lawyers, witnesses and observers involved on military jets from the United States to the offshore naval base each time. That also adds to the exorbitant costs of maintaining the military commissions, which currently are handling active cases for only seven of the 154 remaining Guantanamo detainees.

The U.S. government spends an estimated $2.8 million per detainee each year to imprison them at Guantanamo. In contrast, high-security federal prisons cost about $35,000 per prisoner annually.

Judge Pohl's ruling on Wednesday to "hold in abeyance" his order to sever the case doesn't put an end to the delays, or even to the question of whether all five defendants will be tried together. Rather, he seemed resigned to the fact that all five defendants in this case will continue to raise complicated and time-consuming questions, including about the unresolved matter of FBI spying on defense counsel, and that separating the case of one defendant won't really help matters any. (Defense lawyers claim several defendants' legal teams were spied on.)

In issuing a rare ruling from the bench on Wednesday, Judge Pohl cautioned that the government's request to try the defendants together would be granted "for now." He can always change his mind.

The pre-trial hearings are scheduled to resume in the case for all five defendants Thursday morning.