All Together Now: All 9/11 Accused Now Agnostic About Severance

Wells Bennett
Monday, July 2, 2012, 4:36 PM
Reviewing the docket in United States v.

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Reviewing the docket in United States v. Mohammed, we learn of two filings that have completed security screening and now are available to the public.  Up first is the government’s “Reply to the Defense’s Response to Military Judge’s Order to Show Cause,” in which prosecutors lay out some purported flaws in the arguments advanced by 9/11 defendant Ali Abdul Aziz Ali, aka Ammar al-Baluchi, in favor of severance.  (The link is to the first and most substantive part of a five-part filing; I've omitted the four additional files, which contain attachments, for simplicity's sake.)  Recall that Judge James Pohl – it seems like ages ago now – had ordered prosecutors to “show cause” as to why the commission should not hold separate trials for each of the five 9/11 defendants.  The government then explained its insistence on a joint capital trial.  Then the five alleged coconspirators each responded, with four accused claiming that, because of outstanding discovery or specific impingements on their attorney-client relationships, they lacked the information needed to take a position on severance.  Only one accused, Ali, opposed joint proceedings.  He cited a plan to demonstrate a lesser level of culpability relative to his co-defendants.  Ali therefore asked to be tried separately, at both the merits and penalty phases.  Naturally, the government finds Ali’s reasons unpersuasive, and explains why in its recent filing.  But here’s the thing: Ali now has backed away from his prior request for a separate trial.  In the second of our two recently-released motions, Ali now says that, like the other four accused, he takes no position, one way or the other, about severing the trials.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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