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Government's position on incompetency issue in bin al-Shibh case may justify pre-trial court intervention

Tim Lynch [Director, Project on Criminal Justice, CATO Institute]: "Lawyers for Ramzi bin al-Shibh are doing what they are supposed to do - representing their client with zealous advocacy. The lawyers are advancing three basic claims. The first is a sweeping attack on the Military Commissions Act. The validity of the commission system is indeed dubious, but after Hamdan [CATO Institute amicus brief], the court of appeals is not going to be entertaining such a broad-based challenge.

The second argument is that the commissions are not working properly. In other words, even if the commissions are valid in theory, they have turned into "political show trials" in actual practice. This argument may also have merit, but I suspect the court of appeals will want to wait until after an actual trial takes place to hear this serious and disturbing charge. A post-conviction appeal will be the proper time and place to hear arguments about "show trials," rather than before trial.

The third argument is that bin al-Shibh is incompetent to stand trial because he is unable to assist in his own defense. Here the issue if competency seems inextricably intertwined with the prisoner's treatment after capture, but before trial (the interrogation [torture?] phase). The government's stance on this point seems very weak: The defense must demonstrate incompetency, but anything pertaining to the prisoner's treatment/interrogation is out-of-bounds - not discoverable and not admissible. This is where the court of appeals is most likely to intervene in this case prior to trial."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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