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Show Cause Order In the 9/11 Case Now Available

Wells Bennett
Tuesday, May 22, 2012, 2:52 PM
We reported last Friday on an order in United States v.

Published by The Lawfare Institute
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We reported last Friday on an order in United States v. Mohammed et al, in which Judge James Pohl instructed the prosecution to explain why the cases should not be tried separately.   That order has completed a security review, and is here. Among other things, it cites the hassles involved in coordinating hearings and deadlines among the five 9/11 defendants and their counsel.  And, more interestingly, the order raises the risk that, during a possible death penalty phase, mitigating evidence as to one defendant might serve as aggravating evidence as to another.  (One can certainly imagine such scenarios: a defendant might claim, for example, that he acted on KSM's instructions or even in fear of KSM, and that he therefore deserves a lesser punishment than the plot's boastful mastermind.)   The government's response is due two days from now.  Query whether the prosecution will resist Pohl's concerns about sentencing evidence as premature - the trial (and thus any penalty proceedings) still being so far off in the future.

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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