9/11 Case Stalls for Mental Competency Hearing

After Ramzi Bin al Shibh four times objected in court this week to the noisiness of his prison cell at night, the judge presiding over the September 11 military commission case on Thursday ordered he undergo a mental competency examination and stalled the case.

The case of the five men who allegedly plotted the 2001 terrorist attacks is still only in pre-trial hearings, more than 12 years after the attacks on New York and Washington, D.C., took place. Since this latest set of charges was brought in the Guantanamo military commissions in 2011, the complex case has moved at a snail's pace as the judge and lawyers wrangle over which laws and rules apply to this version of the military commissions, created by Congress in 2009. (An earlier version created by President George W. Bush was held unconstitutional.) Although the hearings are governed by the Military Commissions Act of 2009, it remains unclear whether the U.S. Constitution applies to these hearings.

Lawyers for the defendants have also complained that their ability to communicate with their clients has been stymied by government surveillance and onerous rules imposed by the Guantanamo prison commander, and have objected to the classification of their clients' statements of their own experiences of torture U.S. custody.

In recent months, defendant Ramzi Bin al Shibh, accused of facilitating the attacks, has claimed he hears loud noises and vibrations in his Guantanamo cell at night that make it impossible for him to sleep. He blames the prison guards and calls the sleep deprivation a form of "torture." Although Judge James Pohl, presiding over the case, has ordered the guards to stop making noise, this week Bin al Shibh insisted repeatedly in court that the problem continues.

On four different occasions, twice after being asked if he understood his rights to be present at the pretrial hearings, Bin al Shibh objected that his right was being compromised because his noisy cell left him too sleep-deprived to participate meaningfully in his case. After each outburst, Judge Pohl ordered guards to forcibly remove Bin al Shibh from the courtroom.

Bin al Shibh's lawyers have repeatedly asked the judge to do more to enforce his order prohibiting excessive noise, but the judge has said there's nothing more he can do except call an evidentiary hearing. The lawyers claim it's nearly impossible to collect evidence about the noise because they are not allowed to enter their client's prison cell. This week they agreed to investigate the possibility of installing an audio recorder there at night. Bin al Shibh's lawyer, Navy Lt. Cdr. Kevin Bogucki, has said he's already submitted expert testimony to the court that his client is not delusional.

Nevertheless, prosecutors asked Judge Pohl Thursday morning to order Bin al Shibh to undergo a hearing to determine his competence to stand trial. Although his lawyers objected, Military Commission rules allow the judge to order an expert board to assess the mental capacity of a defendant. Once the order is entered, all hearings stop until the examination, expected to take several months, is completed.

Bin al Shibh, a 41-year-old citizen of Yemen, has been in U.S. custody since September 2002. Captured in Pakistan, he was not transferred to Guantanamo until 2006. He is believed to have spent four years in secret CIA prisons overseas. He was allegedly tortured during his interrogation in Jordan.