A military judge is expected to decide whether a 9/11 defendant held at Guantánamo Bay in Cuba can stand trial after a medical board determined he is psychotic from past CIA torture.
The judge, Col. Matthew McCall, is expected to rule as soon as Thursday whether Ramzi bin al-Shibh’s mental issues render him incompetent to take part in the proceedings against him, The Associated Press reported. On Wednesday, al-Shibh’s lead attorney, David Bruck, told the courtroom that the diagnosis is creating “a moment of truth,” and an opportunity to take into account the harm that was done by President George W. Bush administration’s approval of abusive interrogation of alleged al Qaeda attackers.
Meanwhile, the families of 9/11 victims and conservatives have expressed outrage at the Biden administration for allowing plea negotiations for four other 9/11 defendants held at the Guantánamo Bay Naval Base in Cuba after the Pentagon notified victims’ relatives last month that a pre-trial deal could mean the death penalty is taken off the table more than two decades after the attacks. Al-Shibh’s mental issues meant he was not included in the plea negotiations.
As disclosed in a report filed with the trial judge in August, a military medical panel diagnosed al-Shibh with post-traumatic stress disorder with secondary psychotic features, rendering him delusional and psychotic by the torture he underwent years ago while in CIA custody, The New York Times reported.
The charges accuse alleged lead conspirator Khalid Sheikh Mohammed and the other four of helping orchestrate the killings of 2,976 people on Sept. 11, 2001. Al Qaeda attackers commandeered commercial aircraft and flew them into the World Trade Center, the Pentagon and, when passengers thwarted one attack, a field near Shanksville, Pennsylvania.
The five defendants are being prosecuted jointly. Wednesday marked the first time in more than a year the men were in the Guantánamo Commission Room together, according to the AP, which monitored the military commission’s hearings in Cuba on Wednesday via a relay provided by the Pentagon.
Lead prosecutor Clayton Trivett said the government would seek to separate al-Shibh from the case against his four co-defendants if the judge does deem him incompetent. While al-Shibh is delusional, “he has the capacity to participate” with his lawyers “and it’s really just a choice,” Trivett argued.
No trial date has been set after more than a decade of proceedings.
Logistical challenges and legal questions have slowed the commission at Guantánamo, including how much evidence has been rendered inadmissible by torture while they were in CIA custody. The case has had a succession of military judges, with the fourth announcing Wednesday that he will retire in April.
Any future plea negotiations are on hold at least until the military commission gets a new presiding military official next month.
On Sept. 6, the White House said President Biden had declined to approve or deny demands presented by defense lawyers in plea negotiations to settle the case. They were seeking guarantees that all five men would get care for the physical and mental damage of their torture, and they would be spared solitary confinement going forward. Biden was unsettled about accepting terms for the plea from those responsible for the deadliest assault on the U.S. since Pearl Harbor, a White House National Security Council official told the AP.
Specifically, al-Shibh is accused of organizing the Hamburg, Germany, cell of 9/11 hijackers, including researching flight schools in the U.S. and wiring money to some of the 19 terrorists who carried out the attacks. According to the Times, he allegedly worked with cell leader Mohammed Atta and reported to al Qaeda leaders in Afghanistan that the attack would occur Sept. 11, 2001.
The Bush administration, after 9/11, cited the threat of future attacks in authorizing controversial interrogation techniques by the CIA and military. It instituted a secret CIA detention program for hundreds of suspects, many of whom were later cleared. The five 9/11 defendants were variously subjected to repeated waterboarding, beatings, violent repeated searches of their rectal cavities, sleep deprivation and other abuse. A Senate investigation concluded that what the administration called “enhanced interrogation” was ineffective at obtaining information.
The CIA’s detention and interrogation program ended in 2009.
Bruck pointed to what he said was al-Shibh’s solitary confinement over four years in detention at CIA black sites, and torture that included his being forced to stand sleepless for as long as three days at a time, naked except for a diaper and doused with cold water in air-conditioned rooms, for the man’s lasting belief that guards at Guantánamo were subjecting him to unseen attacks to deprive him of sleep.
Al-Shibh has long complained he was under attack by invisible rays at Guantánamo. He is currently being held in disciplinary solitary confinement at Guantánamo after staging a protest in his cell about the invisible attacks, Bruck said. The defense lawyer said the event did not injure others but gave no details.
For al-Shibh ever to improve, Bruck told the court, “his PTSD has to be treated. It’s not going to get any better until it is.”
The Associated Press contributed to this report.
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