The WaPo reports that Judge James Pohl has just severed Ramzi Bin al-Shibh from 9/11 trial, creating two 9/11 trials. He did so for two reasons: because he could not quickly resolve whether the FBI investigation into defense attorneys has compromised his representation, and because the court has not yet determined whether he is competent to stand trial.

Army Col. James L. Pohl said the court needs to resolve whether Binalshibh has the mental capacity to participate in a trial and whether he needs another lawyer because of a potential conflict of interest after theFBI questioned members of his defense team.

These issues “are not expected to be completed in the near term,” Pohl said in his order.

While both issues are emblematic of the clusterfuck that is Gitmo, I’m particularly struck by the uncertainty whether bin al-Shibh is competent.

Earlier this year, prosecutors asked the judge to evaluate Binalshibh after he repeatedly interrupted court proceedings and had to be removed because he ignored warnings to stop the disruptions. However, neither the government nor Binalshibh’s lawyer argue that he is mentally incompetent.

“The judge’s decision today seems to indicate that the issue of competency is still open,” [bin al-Shibh lawyer James] Harrington said. “We have to clarify that with him.”

After all, the entire point of the torture program was to break these men. They succeeded in doing so with bin al-Shibh (that is confirmed by other sources). But now they can’t try him — it sounds like this severance is probably a tacit admission he can never stand trial, for a variety of reasons.

I would much prefer civilian justice, and have said so numerous times. But this Kangaroo Court in Gitmo has sure succeeded in demonstrating all the problems with the US counterterrorism approach.