By Peter Finn
Washington Post Staff Writer
Friday, September 11, 2009
Military attorneys for Ramzi Binalshibh, an alleged conspirator in the Sept. 11 attacks, have filed an emergency writ with a federal court in an attempt to stop hearings in their client's case at a military commission at Guantanamo Bay.
In a sweeping brief filed late Wednesday with the U.S. Court of Appeals for the District of Columbia Circuit, the Navy lawyers asked that the commission be found unconstitutional, arguing that "nothing about this case bears any resemblance to the orderly and regular criminal process that occurs in federal and state courts."
Attorneys for Binalshibh acknowledged that the motion was unusual and the prospects for success uncertain, but they said they felt compelled to act to draw attention to the fact that hearings continue at Guantanamo Bay, Cuba, despite President Obama's order that proceedings at the military base be temporarily halted. Obama has vowed to close the military base by January.
U.S. officials say Binalshibh was the liaison between the terrorist cell in Hamburg, Germany, that spearheaded the Sept. 11, 2001, attacks and al-Qaeda's leadership in Afghanistan. He was captured in Pakistan in September 2002, held in CIA custody for four years and transferred to the military prison at Guantanamo Bay in 2006.
Unlike three others accused in the attacks, including the plot's alleged mastermind, Khalid Sheik Mohammed, Binalshibh has not yet been deemed mentally competent by a military judge to represent himself, as he wishes to do.
The writ alleges that the CIA has blocked defense counsel's attempts to explore Binalshibh's treatment when he was in the agency's custody and the effects of that treatment on his mental health.
Such actions have had a "devastating effects on the fairness" of the proceedings in Binalshibh's case, the writ alleges.
Two military psychiatrists found that Binalshibh has a "delusional disorder," and he has been given psychotropic medicines at the military prison, according to court papers. Those psychiatrists were appointed by the court; Binalshibh's attorneys said they would like their own experts to examine him.
In July, when one of the lawyers began to discuss the need for a sleep-deprivation expert to help assess his client's mental condition, the judge cut off discussion after consulting with a court security officer, who had consulted with unknown persons outside the courtroom. The judge then instructed counsel to discuss only what happened to Binalshibh after he left CIA custody.
"Control of classified information in this case is also used as a sword against the defense," according to the emergency filing, known as a writ of mandamus.
Attorneys for Binalshibh also allege that an FBI investigation of allegations that military defense counsel turned over classified information to some of the defendants in the Sept. 11, 2001, case has "destroyed attorney-client relationships and the ability of some counsel to perform their defense responsibilities."
The writ alleges that the investigation was "almost certainly instigated by the CIA."
The CIA declined to comment. A Justice Department spokesman said, "We're reviewing the motion."
"The writ is unusual, but it was the only way to get into federal court in the middle of a proceeding," said Lt. Cmdr. Richard Federico, an attorney for Binalshibh. "We believe our client will suffer irreversible harm if this proceeding continues."
The military lawyers hope the Court of Appeals will act to prevent a hearing scheduled for Sept. 21 on Binalshibh's competency.
The writ also alleges that the government has arbitrarily denied Binalshibh's attorneys expert assistance and access to medical records. The lawyers also quote one of the military judges in the case, who said in a ruling that the military commission is part of a system "in which uncertainty is the norm and where the rules appear random and indiscriminate."