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Are the 9/11 defendants mentally competent to stand trial?

Ramzi Binalshibh

Ramzi Binalshibh

Jess Bravin writes in the Wall Street Journal:

When five defendants are brought before a New York federal judge to face charges for the terror attacks of Sept. 11, 2001, the first question may be whether some of them are competent to stand trial at all.Military lawyers for Ramzi Binalshibh, an accused organizer of the 9/11 plot, and Mustafa al-Hawsawi, the conspiracy’s alleged paymaster, say their clients have mental disorders that make them unfit for trial, likely caused or exacerbated by years of harsh confinement in Central Intelligence Agency custody.

The issue already has arisen in military-commission proceedings at the military’s detention facility at Guantanamo Bay, Cuba. According to an August ruling by a military judge, prosecutors have made an “apparent concession” that Mr. Binalshibh “suffers from a delusional disorder-persecutory type” disorder. Mr. Binalshibh has been prescribed “a variety of psychotropic medications used to treat schizophrenia and/or bipolar disorder, including Haldol, Abilify, risperidone and Ativan,” according to commission records.

In October 2008, a military medical board reported Mr. Binalshibh may suffer from “severe mental disease” that could “impair his ability to conduct or cooperate intelligently in his defense.”

A military attorney for Mr. Hawsawi, Lt. Cmdr. Gretchen Sosbee, said the military judge ordered a mental evaluation of her client, but its results haven’t yet been entered into the record.

It long has been unconstitutional to prosecute people who are unable to understand proceedings against them or assist in their defense, whether in federal court, court-martial or military commission.

However, Cmdr. Suzanne Lachelier, a lawyer for Mr. Binalshibh, said a military judge has refused to allow a full examination into her client’s condition, in particular by denying access to any information regarding his treatment in CIA custody between 2002 and 2006. An order by the judge, Col. Stephen Henley, said that information was “not relevant” to Mr. Binalshibh’s condition.

In court papers, Cmdr. Lachelier cited Bush administration memorandums endorsing the use of sleep deprivation, solitary confinement and other harsh techniques intended to induce a prisoner’s cooperation.

Military records cited by the defense say Mr. Binalshibh “was seen ‘acting out’ in various manners, including breaking cameras placed in his cell” and covering cameras “with toilet paper…and with feces.” At a June 2008 hearing, Mr. Binalshibh said “we’re still in the black site” — the term for CIA secret prisons. Mr. Binalshibh said he couldn’t sleep because, among other reasons, his bunk is “always shaking automatically.”

Much remains unknown about the prisoners’ mental state, and prosecutors may have evidence to demonstrate their fitness that isn’t currently public.

Justice Department spokesman Dean Boyd declined to comment specifically on the mental-capacity issue but said the government expects “a host of motions” to be filed. “It’s the job of prosecutors to anticipate these challenges and plan their cases accordingly, and that is certainly being done in this case,” he said.

A strong defense case for mental unfitness may force prosecutors to choose between unappealing options. They could sever Messrs. Binalshibh and Hawsawi from the joint conspiracy trial, allowing the case against the defendants whose capacity isn’t at issue to proceed.

That would deprive prosecutors of a favored tool in conspiracy cases, because a joint trial allows the alleged guilt of one defendant to be imputed to the others. In this case, where the notoriety of alleged 9/11 organizer Khalid Sheikh Mohammed far exceeds that of his co-defendants, the separation could be beneficial to Messrs. Binalshibh or Hawsawi should they contest the charges.

If federal prosecutors decide to pursue a joint trial, proceedings will have to wait until each defendant’s fitness is established.

In determining competence, “the key issue is the capacity to assist counsel,” said Norman Poythress, a University of South Florida specialist in mental-health law.

Last year, the Supreme Court established a two-tier system of mental capacity, allowing judges to find defendants able to stand trial yet unfit to represent themselves. Mr. Mohammed and two co-defendants — Walid bin Attash and Ali Abdul Aziz Ali — have been acting as their own attorneys before the military commission. Mr. Binalshibh asked to do so, but was denied until his mental competence has been determined.

It is bad enough that the behavior of interrogators may have tainted evidence against these people. It would be similarly tragic if their behavior has placed the defendants in such a mental state that they are not competent to stand trial at all.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.