Prosecutors Want Joint Trial at Guantanamo

GUANTANAMO BAY NAVAL BASE, Cuba (CN) - A military judge should reverse his "drastic" decision to separately try one alleged perpetrator of the Sept. 11, 2001, attacks, a prosecutor said as proceedings resumed Monday.

Ramzi bin al Shibh is one of five accused of coordinating the hijackings of planes that crashed into the World Trade Center, the Pentagon and a Pennsylvania field. The case against him has proved the most troublesome of the group, all of which carry the death penalty for charges of terrorism, hijacking, murder in violation of the laws of war for each of the nearly 3,000 victims, and other charges.

Early hiccups in the bin al Shibh proceedings took the form of the defendant's repeated complaints of supposed "noises and vibrations" in his cell. None of bin al Shibh's co-defendants made similar complaints, and the military judge ejected him from court four times in December over such angry outbursts.

Hours after bin al Shibh's attorneys called for an investigation into the allegations, prosecutors moved for bin al Shibh to undergo a competency hearing. Bin al Shibh's refusal to participate in such proceedings, however, has left them unresolved.

In April, defense attorneys for bin al Shibh alleged that the FBI tried to recruit a member of his defense team as a confidential informant, causing a potential conflict of interest. Bin al-Shibh's civilian lawyer, James Harrington, revealed in court that his defense team lost four members in the wake of the probe.

The military judge, Col. James Pohl, decided late last month to sever bin al Shibh's case to prevent the complications of his case from slowing down the joint trial for the other four.

"Were the commission fully confident both issues concerning Mr. bin al Shibh would be resolved in a manner conducive to a timely continuation of the joint trial the problem of severance would not be before it now," Pohl wrote in his order.

Urging Pohl to vacate that decision, prosecutor Clayton Trivett told the judge Monday that separate trials would burden the victims of the attacks who regularly observe the proceedings through a government program to recruit witnesses for the sentencing phase.

"I cannot emphasize how much this severance order will affect the victim family members [and] the trial witnesses," Trivett said.

Of more than 200 family members participating in the program, 10 were seated in the war court gallery on Monday, the lawyer added.

They watched the hearing among the group of reporters, soldiers and members of nongovernmental organizations seated behind the soundproofed double-glass that divides the courtroom from the gallery.

In contrast to his behavior at the December hearings, bin al Shibh kept his calm and appeared animated while chatting with his attorneys before and during the proceedings. The Yemeni suspected terrorist fumbled around with his off-white headscarf and replaced it with what appeared to be a black-checkered keffiyeh before the proceedings began.

Bin al Shibh was the only person in court who refused to rise when Judge Pohl entered the room.

None of his former co-defendants typically stand either when they are in court.

Trivett noted that observing and participating in the proceedings could be a difficult experience for victim family members and witnesses.

Quoting the Supreme Court's 1987 decision Richardson v. Marsh, Trivett said that holding separate trials could force "victims and witnesses to repeat the inconvenience - and sometimes trauma - of testifying."

None of the victims who attended could immediately be reached for comment.

Pohl countered that the unique issues in bin al Shibh's case already have taken up nine months of the court's time.

Trivett estimated that resolving the motions would probably take until October, an expectation that his adversary Harrington described as "optimistic."

When Pohl asked if the government believed a joint trial was worth the delays, Trivett replied: "That is our 100 percent, unequivocal position."

Ironically, it remains unclear whether either party wants Pohl's order to stand because the defense team never requested it.

Harrington said that he is having trouble explaining the strategic benefits or disadvantages of trying the case separately. The defense attorney requested time to make that decision in written arguments, but he asked for the severance order to be upheld until that time.

Trivett accused the defense of using delay tactics in the death-penalty case.

"Every day their client is still living is a victory," he said.

Pohl said that he will issue a decision later in the day and that proceedings will resume Wednesday.

Later in the week, the war court also is expected to hear a request to sever the case of another of the accused plotters, Mustafa al Hawsawi. Al Hawsawi's lawyer Walter Ruiz said in a press conference that he will argue to separate the case to avoid "guilt by association" with his more-culpable co-defendants.

Al Hawsawi plans to argue that he "played a very limited and isolated role in a much broader chain of events that resulted in the 9/11 attacks," according to his motion on the matter.

In a reply that extensively details the plane tickets and money that al Hawsawi allegedly gave hijackers from the United Arab Emirates and Pakistan, prosecutors said the defendant played a key role in "aiding, abetting, counseling, and commanding" these individuals.

Although the defense brief claims al Hawsawi had no "need to know" about the larger details of the "operation," Ruiz declined to comment on whether al-Hawsawi would deny having advanced knowledge of the Sept. 11 attacks.

"We'll say when the time comes," Ruiz said at a Sunday afternoon press conference.

"Part of that is strategic," he added.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit