In what has been called the most important death penalty case in US history, the government is seeking a 60 day delay in the joint trial by military commission of Guantanamo’s Ramzi bin al Shibh, who, along with four others, is facing war crimes charges resulting from his alleged involvement in the September 11th attacks.
The government is seeking the delay because the rules for military commissions may be substantially changed by legislation (the Military Commissions Act of 2009), intended to overhaul the procedures formalized by the Military Commissions Act of 2006 (‘MCA’).
This request was made as part of a reply to the defense’s writ petition (in a filing with the DC Court of Appeals, the court of appeal for military commissions) requesting an indefinite stay of proceedings; the defense also argued that the MCA is altogether unconstitutional.
While Congress debates a commission overhaul, critics argue that rather than a simple makeover of the commissions – which they see as solely a means to the end of finding all those charged before them guilty and not a proper trial – the detainees’ cases should be brought before the pre-existing tried and tested US court system.
It may seem odd that the requested delay is for one of a class of cases – the all-inclusive ‘military trials’ – consistently reported to have been put ‘on hold’ since President Obama announced soon after taking office that he would close the Guantanamo prison in January 2010; he has thus far (via the prosecution) made two continuance requests to the commissions.
But for trials that are not moving forward by presidential decree, the commission has nonetheless made a few decisions over the last few months. Due to the fact that hearings at Guantanamo Bay do not amount to a ‘proceeding’, they have thus have been judged not subject to the President’s order. In other words, never did the commission order a ‘halt’ to ‘any and all actions related to this case’.
In particular, this has meant further scheduling orders regarding one defendant’s (bin al Shibh) competence to stand trial. These 2009 orders followed issues raised in several 2008 decisions – those denying the defense request for an independent psychiatric expert to examine the defendant, who military doctors have deemed psychotic and kept on psychotropic medication; and those amending this and appointing a defense psychologist, with the proviso that the psychologist not be permitted to meet with bin al Shibh or testify at a competency hearing.
Thus, regardless of the President’s decrees, in August 2009 the commission continued (partially) on, denying the defense request for ‘non-essential’ information regarding alleged inhumane treatment of bin al Shibh during his 4 years in CIA custody that arguably may have caused his psychosis.
And the competency hearing itself, scheduled for September 21st – the date set by the ‘on hold’ commission – is the one for which both the prosecution and the defense are now requesting a delay.