Federal Judiciary

Sweeping attack on terrorism trials

By Akin Gump Supreme Court Practice Group

The D.C. Circuit Court on Friday asked the Obama Administration to reply promptly to a sweeping new challenge to military commission trials, filed by a detainee facing charges of taking part in Sept. 11, 2001, terrorist attacks.  In a brief order, the Circuit Court said a response by the government must be filed by noon next Tuesday in the case of In re Bin Al-Shibh (docket 09-1238).  By a mere coincidence, the order was issued on the eighth anniversary of the 9/11 attacks.

The case, filed by Ramzi Bin Al-Shibh, involves a plea to stop all proceedings in his impending military commission trial on charges that could lead to the death penalty.  Filed in the form of a petititon for a “writ of mandamus and writ of prohibition,” the filing contended that the new system of terrorism trials has been unconstitutional since Congress set it up in 2006.  Congress had no authority to create the commission system, and the act, as written, unconstitutionally treats aliens charged with terrorism crimes differently from the way U.S. citizens would be, it asserted.

The entire system, Bin Al-Shibh’s lawyers argued, “has been corrupted by illegitimate political considerations at every step….What the government has sought, and to date received, is not a legitimate judicial proceeding but a political show trial.”  After intentionally brief “show trials,” the document contended, the government plan is to rush off to execution those accused of roles in the 2001 terrorist attacks. 

Against a background of harsh criticism of the entire military commission apparatus, the new case seeks initially to block a Sept. 18 hearing before a military judge at Guantanamo Bay on whether Bin Al-Shibh is mentally competent to stand trial.  The new writ request argued that that proceeding would be fundamentally unfair because BinAl Shibh’s lawyers have been barred from preparing any evidence on the competency question.

“Political manipulation” of the system, the document asserted, “now threatens to culminate in a faux competence hearing…, orchestrated by the prosecution and controlled by the CIA [Central Intelligency Agency.”  What is being attempted, it insisted, is the coverup of facts crucial to the question of his competence — that is, “the details of his physicial and psychological abuse at the hands of the CIA.”

Bin Al-Shibh, his lawyers contended, has been found to have a mental disease, “suffering from a psychotic disorder.”

Although the 2006 law creating the military commissions provided for an appeal to the D.C. Circuit once a trial is over and a verdict is in, Bin Al-Shibh’s counsel said that there is no other court where he can bring his constitutional challenge to the system as a whole.  While Congress created a special appeals court within the commission system, the Court of Military Commission Review, that tribunal is barred from hearing basic challenges such as the one now being raised, so an attempt to appeal there to stop the trial would be futile, the document added.

Under the Circuit Court’s order Friday, the government response is due Tuesday, followed by a reply from Bin Al-Shibh’s lawyers on Thursday — one day before the scheduled competency hearing at Guantanamo Bay.

Full post as published by SCOTUSBLOG on September 11, 2009 (boomark / email).