What does a judge do when he’s presiding over the highest profile case at Guantanamo’s military commissions; the charges against all five defendants are based substantially on the same facts; the case has been dogged by delays, many of which relate to a single defendant; and he’s acutely aware that the survivors of the horrific attacks, and the blood relations of the many who died, feel painfully frustrated that no verdict has been rendered even though 13 years have dragged by since the crimes?

I am referring to the 9/11 case and Judge James Pohl, and he just dealt with that dilemma. He severed the charges against one of the defendants, Ramzi Binalshibh, charged with being a liaison between the aircraft hijackers and Al Qaeda’s leaders, according to a July 24, 2014 Washington Post piece.

Questions about Binalshibh’s mental competence had been raised years ago. But earlier this year, prosecutors asked to have him evaluated, after he repeatedly disrupted commission proceedings and had to be removed from the courtroom. Further, the FBI had interfered with his case by secretly interrogating two non-lawyer members of his defense team, triggering a potential conflict of interest between the accused and his lawyers. (See the prior Post on this page, “From Tragedy to Farce”).

Pohl’s order cited the need to find out whether Binalshibh has the mental competence to participate in a trial and to resolve whether he requires new counsel, on account of the FBI’s actions. And these matters are, in his view, “not expected to be completed in the near term.”
No doubt Pohl realized how heavy a price would be paid for his unusual decision. Now, in effect, he will have to try the same case twice, and Binalshibh’s trial will be delayed until, his lead counsel asserted, “a long time in the future.” Clearly, Pohl believes that accelerating the 9/11 trial is worth that price. Indeed, in an earlier action that also will expedite the 9/11 case, Pohl in his role as chief judge of the commissions recently replaced himself as presiding judge over the high profile al Nashiri prosecution, to avoid scheduling conflicts with the 9/11 matter.