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Guantánamo prosecutor opposes order to separate Yemeni from joint 9/11 trial

Prosecutors are challenging the military judge’s decision to put just four of the alleged 9/11 conspirators on trial together and try accused plotter Ramzi bin al Shibh separately.

Prosecutor Clayton Trivett filed the “emergency motion” last week, according to a notation on the war-court website. The motion was still under seal Sunday. According to people who have read it, the judge, Army Col. James L. Pohl, is asked to not go forward with the Aug. 11-15 pretrial hearings at the U.S. Navy base at Guantánamo with just the alleged mastermind Khalid Sheik Mohammed and three other accused plotters.

All five men are accused of conspiring in the Sept. 11, 2001, hijackings that slammed commercial planes into the World Trade Center, the Pentagon and a Pennsylvania field, killing nearly 3,000 people. Prosecutors seek their execution, if convicted.

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Pohl removed bin al Shibh, a Yemeni who allegedly helped run the Hamburg, Germany, cell of hijackers in a July 24 order.

Sunday night, the chief Pentagon prosecutor, Army Brig. Gen. Mark Martins, described severing as “a drastic remedy” and said only that the prosecution wants “an opportunity to be heard” on the request for reconsideration filed July 30.

Pohl ordered the Guantánamo guard force to bring only four of the five accused men to court on Aug. 11; he declared that removing bin al Shibh was in the “interests of justice” because of outstanding issues related to his competence to stand trial and a potential conflict of interest in his defense team.

Martins said the judge has time to decide whether to have the prison guard force bring Bin al Shibh to court as well on Aug. 11 in light of the emergency motion.

Bin al Shibh complains that he hears sounds and vibrations in his secret prison cell, something the other four defendants have not alleged. For a time, the judge agreed to hear evidence on whether the noise exists as part of a competency hearing, but then decided against it because neither the prosecutor nor bin al Shibh’s lawyers argued he was not competent to stand trial.

Cheryl Bormann, defense attorney for 9/11 defendant Walid bin Attash, read the emergency filing but said her team so far has no position on whether bin al Shibh should be tried with the other four.

“This thing came out of the blue because neither the prosecution nor the defense had requested severance,” Bormann said Sunday. “In my 25 years, I’ve never seen a judge order it without a request” from one side or the other.

The prosecution wants certain other pretrial issues to be put in abeyance until the bin al Shibh severance decision is reviewed, according to Bormann.

Bin al Shibh’s lawyers were expected at this remote base in southeast Cuba to consult with him on whether he, too, wanted to argue against a separate trial. In the past, the Yemeni has protested to the judge that he is fit to stand trial and opposed severance.

Lawyers, staff members and victims’ family members arrived at the base Sunday on a flight from Andrews Air Force Base for a week of hearings in the death-penalty prosecution of Saudi captive Abd al Rahim al Nashiri. He is accused of orchestrating al-Qaida‘s Oct. 12, 2000, suicide bombing that killed 17 U.S. sailors on the USS Cole.

Reporters were greeted with new restrictions for photography at the war-court compound. The rules now forbid images previously permitted for more than a year, notably of a bunker on a hill shown in many Guantánamo photos.

Miami Herald reporter Carol Rosenberg tweets @carolrosenberg

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