GUANTANAMO BAY NAVAL BASE, Cuba (AP) – A military judge is trying to decide whether the attempt to prosecute five prisoners at Guantanamo Bay for the Sept. 11 attacks can resume after stalling for nearly a year because of the revelation of an apparent FBI investigation into members of one of the defence teams.
The five defendants are expected back in court Monday for a hearing focused on whether more time is required to explore any potential conflict of interest arising from the questioning by FBI agents of defence team support staff.
The judge, Army Col James Pohl, is considering whether to sever one of the prisoners, Ramzi Binalshibh, from the case to get it moving again toward an eventual death-penalty trial at the US Navy base in Cuba.
Prosecutors want to keep all five together, arguing that separating the defendants would result in even more delays and cause further pain to relatives of those killed in the Sept 11, 2001, terrorist attack.
“These are not circumstances that call for severance,” the chief prosecutor, Army Brig. Gen. Mark Martins, told reporters at the base.
Keeping the case intact requires a finding by the judge that the FBI investigation did not create a conflict of interest for the defence attorneys for Binalshibh, whose team was the target of an investigation, the nature and scope of which have not been publicly disclosed.
James Harrington, the lead civilian attorney for Binalshibh, said the questioning of his staff has undermined the attorney-client relationship, crucial in a death penalty case. “Obviously, it’s a major disruption in this case and it’s also been a horrible disruption within my team,” Harrington said on the eve of the hearing.
Lawyers say the fact that they or members of their staff could be under criminal investigation creates a potential conflict because it raises the possibility they could favour their own interest over that of their clients, easing up on their defence efforts.