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When Eric Holder announced he was moving the 9/11 terrorist
trial to New York City, a rash of worries were released, the case will be dismissed because of the waterbording, all the evidence will be thrown out because they weren’t read their Miranda rights..etc. The Wall Street Journal is warning of the very real possibility that the two of the terrorists, Ramzi Binalshibh and  Mustafa al-Hawsawi may be declared mentally unfit to stand trial. Their attorney’s claim that the terrorists have mental disorders caused by harsh CIA treatment.

The issue already has arisen in military-commission proceedings at the military’s detention facility at Guantanamo Bay, Cuba. According to an August ruling by a military judge, prosecutors have made an “apparent concession” that Mr. Binalshibh “suffers from a delusional disorder-persecutory type” disorder. Mr. Binalshibh has been prescribed “a variety of psychotropic medications used to treat schizophrenia and/or bipolar disorder, including Haldol, Abilify, risperidone and Ativan,” according to commission records.

Last year  a military medical board reported Mr. Binalshibh may suffer from “severe mental disease” that could “impair his ability to conduct or cooperate intelligently in his defense.” In other words he could be tried but wasn’t up to acting as his own attorney.

A military attorney for Mr. Hawsawi, Lt. Cmdr. Gretchen Sosbee, said the military judge ordered a mental evaluation of her client, but its results haven’t yet been entered into the record.

Cmdr. Suzanne Lachelier, a lawyer for Mr. Binalshibh, said a military judge has refused to allow a full examination into her client’s condition, in particular by denying access to any information regarding his treatment in CIA custody between 2002 and 2006. An order by the judge, Col. Stephen Henley, said that information was “not relevant” to Mr. Binalshibh’s condition.

In court papers, Lachelier said it was all Bush’s fault, citing the previous administrations memorandums endorsing the use of sleep deprivation, solitary confinement and other harsh techniques intended to induce a prisoner’s cooperation. There are no reports of Ms Lachelier citing the use of the Barney Theme Song, but that would make me crazy.

Military records cited by the defense say Mr. Binalshibh “was seen ‘acting out’ in various manners, including breaking cameras placed in his cell” and covering cameras “with toilet paper…and with feces.” At a June 2008 hearing, Mr. Binalshibh said “we’re still in the black site” — the term for CIA secret prisons. Mr. Binalshibh said he couldn’t sleep because, among other reasons, his bunk is “always shaking automatically.”

Gee, shaking automatically used to make my kids go to sleep all the time, it doesn’t work on mass murdering terrorists?

Justice Department spokesman Dean Boyd declined to comment specifically on the mental-capacity issue but said the government expects “a host of motions” to be filed. “It’s the job of prosecutors to anticipate these challenges and plan their cases accordingly, and that is certainly being done in this case,” he said.

A strong defense case for mental unfitness may force prosecutors to choose between unappealing options. They could sever Messrs. Binalshibh and Hawsawi from the joint conspiracy trial, allowing the case against the defendants whose capacity isn’t at issue to proceed.

That would deprive prosecutors of a favored tool in conspiracy cases, because a joint trial allows the alleged guilt of one defendant to be imputed to the others. In this case, where the notoriety of alleged 9/11 organizer Khalid Sheikh Mohammed far exceeds that of his co-defendants, the separation could be beneficial to Messrs. Binalshibh or Hawsawi should they contest the charges.

If federal prosecutors decide to pursue a joint trial, proceedings will have to wait until each defendant’s fitness is established.

In determining competence, “the key issue is the capacity to assist counsel,” said Norman Poythress, a University of South Florida specialist in mental-health law.

It seems to me these two did a very competent job of planning this horrible mass murder, they should be competent enough to stand trial. But surprise, surprise the law of unintended consequences hits again. Base on his tarnished record on this case so far, it is doubtful that Attorney General Eric Holder thought of this before decided to move the trial of these mass murderers to a civilian court.

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