9/11 Defendant Not Fit for Death-Penalty Trial, Judge Rules


A military judge ruled on Thursday that a defendant in the Sept. 11 case who was tortured by the C.I.A. was ineligible for a death-penalty trial, adopting a finding that the prisoner was too psychologically damaged to help defend himself.

Col. Matthew N. McCall, the judge, disqualified Ramzi bin al-Shibh, 51, from what had been a five-defendant conspiracy case in an 11-page ruling on Thursday evening.

Mr. bin al-Shibh was charged as an accomplice in the attacks that killed 2,976 people, and is accused of helping organize a cell of hijackers in Hamburg, Germany, whose leader commandeered Flight No. 11 and flew it into the World Trade Center on Sept. 11, 2001.

The judge ordered pretrial proceedings to continue on Friday with Khalid Shaikh Mohammed, who is accused of being the mastermind of the plot, and the other three defendants but excluded Mr. bin al-Shibh from the hearing.

The decision appeared to tacitly vindicate a claim by the prisoner’s criminal defense lawyer, David I. Bruck, that the C.I.A. torture had made the Yemeni prisoner insane.

Prosecutors had urged the judge to reject the Aug. 24 finding by a team of U.S. military psychiatrists and a forensic psychologist that Mr. bin al-Shibh has “a mental disease or defect” that left him “unable to understand the nature of the proceedings against him or cooperate intelligently” with his legal team.

The sanity board diagnosed him as having post-traumatic stress disorder with secondary psychotic features as well as a delusional disorder.

For years, Mr. bin al-Shibh has said he was tormented by invisible forces that caused his bed and cell to vibrate and that stung his genitals, depriving him of sleep. He has disrupted court proceedings and the peace at the prison for “high-value detainees” who were subjected to “enhanced interrogation” such as waterboarding, beatings and sleep deprivation in C.I.A. custody.

Mr. Bruck told the judge on Tuesday that Mr. bin al-Shibh was a broken man from his C.I.A. detention in 2002 to 2006, during which he was held in solitary confinement, deprived of sleep and abused in other ways, including being forced to stand chained and in a diaper for up to three days at a time. He described Mr. bin al-Shibh as so trapped in an endless cycle of sleep deprivation that he could not help mount a defense.

The prisoner’s “complex delusions and hallucinations” are “omnipresent” at legal meetings, said Mr. Bruck, a U.S. lawyer who specializes in capital punishment cases.

In response to a question from the judge, Mr. Bruck said his team devoted almost all of its time with the prisoner trying to mollify him by documenting his delusions or trying to intercede on his behalf with prisoner commanders, who respond to his angry outbursts and efforts to damage his cell by placing him in isolation reminiscent of his solitary confinement.

“The totality of the facts demonstrates an accused who is wholly focused on his delusions,” Colonel McCall wrote. “Again and again, he focuses his counsel’s work on stopping his delusional harassment, (which) demonstrates the impairment of his ability to assist in his defense.”

In severing Mr. bin al-Shibh from the case, the judge essentially suspended his prosecution until his mental health is restored.

The Pentagon’s prosecutor, Clayton G. Trivett Jr., argued that the diagnosis was unreliable and legally flawed because the three Defense Department mental health experts focused on an irrational demand that Mr. bin al-Shibh made at the start of plea negotiations in March last year.

Until this week, prosecutors had been offering a maximum sentence of life in prison, rather than the possibility of capital punishment, in exchange for detailed admissions of guilt by a defendant willing to describe his role in the attacks.

Mr. bin al-Shibh had only one demand, which essentially disqualified him from negotiations: Make the prison stop assaulting him with its invisible system of sleep deprivation. Prison staff members have testified that is not happening.

The judge sealed the full 80-page report by the panel at the request of Mr. bin al-Shibh’s legal team but released a single-page summary of their findings.

“It is no longer possible,” Mr. Bruck said on Thursday night, to deny “that the C.I.A. torture program did profound harm to the people subjected to it.” He added that, while the board found Mr. bin al-Shibh unfit in August, “there is nothing new about his condition now.”

“He has been like this the whole time,” Mr. Bruck said. “It has taken this long to admit it.”



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