Army judge: 9/11 lawyers can't see CIA 'black sites'

8/25/2009

WASHINGTON -- A military judge says defense lawyers for an alleged Sept. 11 plotter held at Guantánamo don't need to inspect secret CIA overseas prisons to determine whether the accused al Qaeda terrorist is competent to stand trial.

Judge Stephen Henley, an Army colonel, ruled Monday that the so-called black sites have likely changed enough since 2006 that an inspection would be of no use to Ramzi Bin al Shibh's Pentagon-appointed defense lawyers.

President George W. Bush ordered Bin al Shibh and 13 other so-called high-value detainees transferred to the U.S. Navy base in Cuba from clandestine CIA custody in September 2006.

Henley issued the ruling the same day the Justice Department announced it was expanding a career prosecutor's exploration of whether some CIA agents committed crimes during interrogations at their secret prisons.

Henley also set Sept. 22 for pretrial hearings on the competency question of whether Bin al Shibh, 37, a Yemeni and alleged al Qaeda lieutenant, and Saudi Mustafa al Hawsawi, 41, an alleged 9/11 financier, are each competent to defend himself at any upcoming conspiracy trial.

The Pentagon seeks the death penalty for the two men, as well as three others, notably alleged 9/11 mastermind Khalid Sheik Mohammed. All five are held in a segregated prison camp at Guantánamo for former CIA captives.

President Barack Obama has ordered a Cabinet-level task force to decide whether the men accused of orchestrating the Sept. 11 hijackings that killed nearly 3,000 in New York, at the Pentagon and in Pennsylvania should by tried by the military or in civilian court.

"Assuming that any facilities used to detain the accused prior to September 2006 still exist, the physical plant and on-site conditions are not likely to be those which existed at the time of the accused's detention and an inspection of the scene now would serve little purpose to document the facility which existed at that time," Henley ruled Monday.

He noted that, for the purposes of competency, an on-site inspection would have little "evidentiary value" since military defense lawyers have inspected his current prison facilities and in light of "the prosecution's apparent concession the accused [Bin al Shibh] suffers from a delusional disorder-persecutory type."

Henley also wrote in an Aug. 20 ruling that he does not expect to decide whether Bin al Shibh and Hawsawi are competent to face trial following the Sept. 22-25 competency hearing at Guantánamo.

He said he would not rule until after the presidential task force decides how to try the accused. Also, he said he may want more evidence.

Henley also ruled just days after The New York Times reported that the Justice Department is investigating whether three military defense lawyers for Guantánamo detainees showed their clients photographs of possible CIA interrogators, and whether doing that may have been illegal.

Justice spokesman Dean Boyd declined Tuesday to comment on whether the investigation was still on going.