A military judge weighs whether to resume hearings on the Sept. 11, 2001 case, despite two potential obstacles: Prosecutors still await word from the Biden Administration regarding a proposed plea deal, and an examination has been ordered by the court to determine if one of the defendants is sane to face charges, Ramzi Bin al-Shibh.
Since prosecutors began plea negotiations a year ago, hearings have been put on hold. In a recent order the judge Col. Matthew N. McCall invited the lawyers and prosecutors for the five defendants in the case to suggest what issues could be addressed in an hearing at Guantanamo in July.
The judge appointed a panel in April to determine whether Mr. bin al Shibh is'suffering from a mental disorder or defect which renders him mentally incapable of standing trial' The report is due on July 13.
If Mr. bin al Shibh is found incompetent, he will not be able to plead guilty or face prosecution. This could lead to an inquiry by the court to determine how mental health providers can restore his competence, which may include forcing him to take stronger psychotropic drugs.
The evaluation comes at a moment when international concerns are loudly expressed about the Pentagon's ability to provide complex medical care in the prison located in southeast Cuba. The chief of the Washington Office of the International Red Cross made a rare declaration last month declaring that 30 detainees have 'growing and increasingly difficult' physical and mental health care needs.
Colonel McCall's order gave the doctors information on what happened to Mr. bin al-Shibh in his four-year interrogation at the C.I.A. The secret network of 'black sites' where prisoners were tortured.
The full report will not become public. The decision will be given to the prosecutor, but not the facts. The medical investigation could provide insight into the C.I.A's long-term impact. Nudity, sleep-deprivation, and physical abuse were used to force prisoners to reveal Qaeda plots.
Mr. bin al-Shibh says that noises and vibrations have been used to torture him over a period of years in an effort to prevent him from sleeping. He screams at night, berates the guards, damages his cell camera, and disturbs other prisoners. He has been prescribed antipsychotics, but opinions about his condition vary. It could be a psychosis due to post-traumatic disorder or delusional disorder.
Paul Montalbano is a member of the panel. He was a forensic psychiatrist who evaluated John W. Hinckley Jr. who attempted to assassinate Ronald Reagan. In 1982, Mr. Hinckley's insanity was deemed to be the reason for his not being found guilty. He spent three decades in a Washington psychiatric facility. Dr. Montalbano evaluated his suitability for a release that took place between 2016 and 2022.
The identity of the other two panel members is unknown.
Even before the prosecutors began plea negotiations with Khalid Shaikh Mohammed (the accused mastermind behind the September 11 attacks), Mr. bin al-Shibh, and the other three defendants in March 2022, there was a question of competence. The plea negotiations were proposed by prosecutors who have been trying to bring a death penalty case to trial for the past nine years. They struggled to meet the court's order to give defense lawyers more information on the C.I.A.'s treatment of the prisoners and their time spent with them.
The defendants are seeking assurances they will not be forced to serve their prison sentences in solitary confinement in exchange for confessing to their involvement in the hijackings which resulted in the deaths of nearly 3,000 people at New York's World Trade Center, the Pentagon, and a Pennsylvania farm. Prisoners who have suffered from a variety of ailments, which they attribute to torture, want the Pentagon also to agree to establish a trauma care program run by civilians for them.
The Pentagon's general counsel was presented with some of these questions by prosecutors as "policy principles" that require the administration take a stance on whether or not they can be accommodated.
The next hearing will be held by the prosecutors, and Frank Pellegrino is one of them. He's a retired F.B.I. Agent who participated in the interrogation at Guantanamo of Mohammed in 2007.
The prosecution argues that the defendants cooperated voluntarily in the interrogation.
The next four-week period on the calendar of the war court would begin Sept. 18 if the judge decides to not hold hearings in the month of July. Judge in U.S.S. has already reserved the week of September 11. The Cole bombing case.