Photo of Ramzi bin al Shibh provided by his defense team.
Guantanamo Naval Base, Cuba – The military judge presiding over the Sept. 11 pretrial proceedings on Guantanamo Bay has severed one of the five defendants from the case after finding him mentally incompetent to stand trial.
Air Force Col. Matthew McCall made the ruling a month after a three-member panel of military mental health professionals found that Ramzi bin al Shibh suffers from post-traumatic stress disorder “with secondary psychotic features” and a “delusional disorder.” The panel, termed a “Sanity Board” under commission rules, found that bin al Shibh’s mental illnesses rendered him unable to effectively participate in his defense against charges that he was a co-conspirator in the 9/11 attacks.
McCall agreed with that assessment in his ruling Thursday.
“This decision by the military judge today does mark the first time that the United States has formally acknowledged that the CIA torture program produced profound and prolonged psychological harm,” David Bruck, who is bin al Shibh’s lead lawyer, told reporters on Guantanamo Bay Thursday evening.
McCall’s 11-page ruling outlines the conditions of duress claimed by bin al Shibh, but does not mention the CIA by name.
Bin al Shibh has long claimed that the detention facility guard force has subjected him to noises and vibrations, continuing his torture from CIA black sites, where he was held from 2002 until his transfer to Guantanamo Bay in September 2006. In recent years, his lawyers have also claimed that bin al Shibh feels stabbing and other painful sensations that he experiences as directed invisibly at parts of his body. The government has denied the allegations.
On Tuesday, the prosecution’s managing trial counsel, Clay Trivett, did not challenge that bin al Shibh suffers from a delusional disorder. However, he argued the defendant remained competent to stand trial. Trivett claimed that the sanity board’s own report – which remains sealed from the public – portrayed bin al Shibh as having a sophisticated understanding of the case and as being cooperative with and trusting of his defense team.
“This does not look like someone who is incompetent,” Trivett said.
The government did not concede that bin al Shibh’s mental illness was caused by the CIA interrogation program, Trivett said. However, he told McCall that the government would support bin al Shibh’s severance from the case if the judge found him to be incompetent.
Bruck argued on Tuesday that the case against his client would have to be halted if the guard force or some other entity was, in fact, directing the tortuous attacks at the detention facility. Alternatively, he argued, if the attacks were not being perpetrated, then bin al Shibh’s “subjective experience” rendered him incompetent to remain in the case.
The CIA had ruined bin al Shibh’s ability to sleep, Bruck argued, saying his client’s relentless suffering was an “omnipresent” factor in his defense team’s effort to represent him. Bruck contended that the case against bin al Shibh was now at its “moment of truth” requiring the judge to confront the tragic fallout of the CIA “human experimentation” program.
“Torture cannot be controlled,” Bruck said. “Its effects cannot be predicted.”
Bruck began his presentation Tuesday afternoon by informing McCall that bin al Shibh was once again in disciplinary status at the detention camp due to his behavior – unspecified in court – attempting to stop the attacks. That status meant bin al Shibh was being held in isolation, Bruck explained, exacerbating his suffering and serving as a reminder of the brutal incommunicado captivity persisting at the core of the CIA’s program. Bruck said bin al Shibh was refusing to eat and currently “losing about one pound per day.”
Bin al Shibh appeared in court, despite that status, sitting calmly at the courtroom’s third defense table during oral arguments. He chatted occasionally with his co-defendants and sipped regularly from a water bottle that contained a red liquid, which his lawyers later said was Pedialyte. Khalid Shaikh Mohammad, the accused mastermind of the attacks, and Walid bin Attash sat in front of bin al Shibh; Ammar al Baluchi and Mustafa al Hawsawi sat behind him. All five defendants face a possible death sentence if they are convicted of planning the attacks that killed 2,976 people. Bin al Shibh, charged with playing a lead role in the German cell of the 9/11 plot, will not be in court Friday morning. The prosecution against him could resume if treatment improves his condition.
Disputes over bin al Shibh’s competency marked a turbulent resumption of pretrial proceedings in the case after 18 months in which the parties explored plea deals but failed to reach agreements. The Biden administration rejected certain terms sought by the defense teams, including a treatment program for torture survivors.
McCall set this four-week session to work through pending discovery motions and to resume witness testimony in hearings seeking to suppress allegedly "clean" confessions by the defendants. Those hearings had gained momentum prior to the pandemic, which halted commission proceedings for about 500 days.
However, McCall’s role in determining the admissibility of critical evidence in the case – including the incriminating statements the defendants made to FBI agents on Guantanamo Bay in early 2007, after they left the CIA black sites – has become less clear. He informed the parties prior to this week's hearing that he plans to retire from the military next spring. A trial date is still not set in the case, likely meaning a fifth judge will be required for the proceedings.
Bin al Shibh’s legal team first filed a motion to stop noises and vibrations in April 2013, about a year after the arraignment. The first judge on the case, Army Col. James Pohl, ordered the detention facility to stop the harassment and to place a copy of his order on the door outside bin al Shibh’s cell. He also ordered a mental competency evaluation for bin al Shibh. A board convened for that evaluation in 2014 could not reach any conclusions because the defendant did not participate in the evaluation.
James Harrington served as bin al Shibh’s lead lawyer during the first eight years of the case. He would intermittently inform Pohl that the guard force was violating his order by using noises and vibrations to disrupt his client. In February 2016, Harrington called bin al Shibh as a witness to testify about the abuse.
“Make all my life terrible, upside down,” bin al Shibh testified in accented but clear English.
During his two hours on the stand, bin al Shibh also recounted how he was forcibly medicated during his early years on Guantanamo Bay and called an unnamed prison psychiatrist “a war criminal.” In a later pretrial hearing seeking to hold Joint Task Force Guantanamo in contempt for allowing the ongoing harassment, Harrington called another detainee not charged in the case to support bin al Shibh’s claims. However, Pohl declined to hold the task force in contempt. He ruled in August 2018, shortly before leaving the case, that bin al Shibh had “failed to establish that any government actor” was violating his order.
A year later, Harrington renewed his complaints to the case’s third judge, Air Force Col. Shane Cohen. (Marine Col. Keith Parrella briefly served as the case’s second judge, between September 2018 and June 2019.) In December 2019, Cohen amended Pohl’s order by also prohibiting government actors from “subjecting Mr. bin al Shibh to physical sensations such as burning skin, pricking of needles, and the biting of insects.” Cohen also ordered a full psychiatric evaluation of bin al Shibh to be conducted by a medical expert; however, that process was significantly delayed due to the pandemic.
Harrington asked to withdraw from his role as bin al Shibh’s lead lawyer in February 2020, citing both personal health issues and problems with the attorney-client relationship. Cohen granted the request based on Harrington’s medical situation. Cohen unexpectedly retired from the case the following month, just as the base was entering Covid-related travel restrictions.
McCall became the fourth judge to preside over pretrial hearings when proceedings resumed in September 2021, which marked the 20th anniversary of the 9/11 attacks. That also was the first hearing for Bruck, who conducted a brief voir dire of the judge to probe for any biases or conflicts that may have impacted McCall’s impartiality. Bruck told McCall that so much of the case was “uncharted,” including the fact that the government was seeking to go forward with a criminal prosecution of the men it had disappeared into “an information-extraction program” for many years.
“It could be that this second stage of the process cannot be done. Period, it’s impossible,” Bruck said. “That the die was cast when they were first put into the [CIA] program run by a secret intelligence agency whose identities by and large we are not permitted to know, and that's really the end of the possibility of a fair trial. And my question is: Can you remain open to that possibility?”
“Absolutely,” McCall responded. “Absolutely.”
Earlier this year, McCall ordered the three-member sanity evaluation after receiving the medical report that Cohen had ordered at the end of 2019.
Bruck told reporters on Thursday that he continues to defend his client in uncharted territory by having to work with Joint Task Force Guantanamo on treating a client who remains in the custody of the government that tortured him.
“We’ve reached a really mysterious point in these proceedings,” Bruck said.
About the author: John Ryan (email@example.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. His book on the 9/11 case is scheduled for publication in March 2024.