Federal Judiciary

Decision soon on 9/11 trials

By Akin Gump Supreme Court Practice Group

The Justice Department told a federal court Wednesday that it expects to decide in the next 60 days whether to try in civilian court or military court those accused of taking part in the terrorist attacks of Sept. 11, 2001.  It did so as it moved to head off a sweeping challenge to the entire system of terrorism trials in specialized military tribunals, created by Congress three years ago.  Filed in D.C. Circuit Court in the case of Bin Al-Shibh v. U.S. (docket 09-1238), the government brief is here; the caption page is separate.

Ramzi Bin Al-Shibh, who has been in U.S. custody for seven years, and has been held at Guantanamo Bay for the past three years.  Facing a series of war crimes charges, related to the 9/11 attacks anc carrying a potential death sentence, Al-Shibh is attempting to shut down entirely the military commission that is now scheduled to try him.  Earlier this month, his lawyers mounted a broad constitutional challenge to the entire commission system, and asked that all proceeding in his case be brought to a halt.  (A post describing Bin Al-Shibh’s challenge can be read here.)

Responding to that challenge Wednesday, the Justice Department contended that the Circuit Court has no authority to take any action in a military commission case until after a trial has been held, a guilty verdict reached, and review within the military has been completed.  Thus, it urged the Circuit Court to deny Bin Al-Shibh any relief on his challenge.

But, even while resisting all of Bin Al-Shibh’s legal thrusts, the Department did not indicate that it wants the military commission trial of Al-Shibh to go ahead with pre-trial proceedings that are already scheduled.  Instead, it disclosed that it will ask for a 60-day delay of all of the case because of new developments that will be unfolding in coming weeks.

First, it said, Congress may complete action sometime in November or December on a series of reforms of the military commission system for trying terrorism charges.  That could produce “substantial” changes, it said, and the Circuit Court should await those.

Second, it said, the Obama Administration is moving forward with a review of the prospects for prosecuting detainees at Guantanamo Bay, including Bin Al-Shibh.  Prosecution teams from the Defense and Justice Departments, it said, are reviewing Al-Shibh’s case “and will be making recommendations shortly” on whether his prosecution should go forward and, if so, in what courts.

It added: “Within the next 60 days, the Attorney General, after consulting with the Secretary of Defense, will determine whether [Al-Shibh's] case should be prosecuted in an Article III court or remain before a military commission.”   The brief thus suggested that the Circuit Court “should decline at this time to consider the request for extraordinary relief to stop further military commission proceedings,” including a mental competency hearing now set for Sept. 21 at Guantanamo.

Presumably, the same review process about potential prosecution is going forward for four other Guantanamo detainees also accused of roles in the 9/11 attacks, including the self-described “mastermind” of those attacks, Khalid Sheikh Mohammed.

Full post as published by SCOTUSBLOG on September 16, 2009 (boomark / email).