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More than 20 years after the September 11, 2001 terrorist attacks that killed nearly 3,000 people, the US government acknowledges that the five men charged with the crime may never face a jury – and may instead receive plea deals .
Settlement talks are underway at the US military tribunal in Guantánamo Bay, Cuba, which would allow suspected architect of 9/11 Khalid Shaikh Mohammed and his four co-defendants to plead guilty, avoid the death penalty and serve life in prison – although some of them may try to negotiate less severe sentences.
The discussions taking place between prosecutors and defense attorneys are a tacit admission that the trouble-ridden military tribunal at Guantanamo, where the 9/11 case has remained in the pretrial stage for years, is unlikely to able to bring men to justice, let alone win convictions.
From the start, the case has been mired in delays, setbacks and inefficiencies. Lawyers are still trying to resolve fundamental constitutional issues, squabbling over what evidence can be admitted, and battling frequent turnover of staff, including judges, while having to travel back and forth to Cuba for hearings. The pandemic has worsened the situation, causing an almost two-year pause in proceedings.
The conditions are met for a different approach to litigation. The 9/11 case has a new judge, a new chief prosecutor and a new chief defense attorney, and this month a senior defense attorney asked to drop the case. Meanwhile, the Biden administration has pledged to shut down the Guantánamo court and jail, which have cost American taxpayers more than $6 billion since 2002, and Republican opposition to the effort is waning.
Former military tribunal chief Harvey Rishikof and his legal adviser Gary Brown began similar settlement talks in 2017. However, then-Attorney General Jeff Sessions objected and they were fired shortly thereafter. Brown has since filed a federal whistleblower complaint alleging, among other things, that the firings were due to the plea deals they offered, but the Department of Defense said the two incidents were unrelated.
Reached by NPR, Brown called it “disheartening” that the court is only now adopting the proposal he and Rishikof made years ago.
“I really don’t feel like I told you. I don’t feel like that at all,” Brown said. “I feel like my nation has suffered…waiting for people to find the right answer. And that’s just – that’s just too bad.”
“I think realism is starting to set in, and just exhaustion,” he added. “After so many years, the potential that the prosecution will be able to obtain a death sentence which then survives an appeal is very small, and still years away.”
Confirming that settlement talks are underway, James Connell and Alka Pradhan, defense attorneys for one of the 9/11 defendants, released a statement that said, in part, “the negotiated settlements represent a pathway to end military commissions, end indefinite detention at Guantánamo Bay, and deliver justice.”
A spokesperson for the military tribunal declined to discuss the negotiations, writing in an email to NPR that “it would be inappropriate for the Office of Military Commissions to comment on issues raised in the commissions’ ongoing litigation.”
The 9/11 defendants – Mohammed, along with Ammar al-Baluchi, Mustafa al-Hawsawi, Walid bin Attash and Ramzi bin al-Shibh – were arrested after the attacks, held for several years in secret CIA prisons in abroad where they were tortured, and transferred in 2006 to Guantánamo, where they have remained since.
They are accused of helping to organize or finance the hijacking of the four planes that crashed into the World Trade Center, the Pentagon and a field in Pennsylvania. It was one of the deadliest events in US history and plunged the country into the controversial “War on Terror”.
As a result, many family members of the victims – including people whose loved ones fell ill and later died from toxic fallout from the World Trade Center collapse – want all five men executed. The original purpose of the military tribunal was to try them before a military jury and, if found guilty, to sentence them to the death penalty.
But over time, as the dysfunction of the court worsened, some family members stopped believing a trial would ever happen and wondered if the 9/11 case would work out with the aging defendants who would end up dying in prison. For others, frustrated and disappointed by two decades of stalemate, plea agreements increasingly seem like an inevitable and sensible solution.
“I mean, the alternative to not making plea deals is to go back to the absolute process that we lived with,” said Terry Rockefeller, whose only brother died in the World Trade Center collapse, and who belongs to September Eleventh Families for Peaceful Tomorrows, a group that advocates for a nonviolent response to terrorist attacks.
Rockefeller also noted that even if a trial were to take place and result in convictions, the appeals process would have to take years.
“I think everyone understands that if the plea deals can all be done, they make much, much more sense,” she said.
The ongoing settlement talks, first reported by The New York Times, would require many details to be worked out, especially if all the men would be sentenced to life. Some of the defendants have argued that, compared to Mohammed, they played a much smaller role in the 9/11 attacks and should therefore receive a less severe sentence – especially since they have already spent around 20 years in prison and were tortured in detention.
It is also unclear where they would serve their prison terms. If President Biden wants to close Guantánamo, he can’t leave a handful of men in his military prison, which spends about $13 million per prisoner per year. A law passed in 2015 bars Guantánamo prisoners from entering the United States for any reason, but if that is repealed they could be held in the supermax federal prison in Colorado.
The men could also be imprisoned in another location overseas, but this is not a straightforward process as the United States would have to find countries willing to accept them.
Defense attorneys for the 9/11 defendants said that if the men were given prison terms, they would prefer to stay at Guantánamo because they have gained increasing freedoms and amenities there over the years. If they are sent elsewhere, they could end up in a much tougher place.
“The prospect of serving a life sentence in a supermax was more terrifying to the defendants than capital punishment,” Brown said.
Guantánamo prison now holds 38 men, down from nearly 800 over the years. In addition to the five 9/11 defendants, five others face pending charges for crimes unrelated to 9/11, but the majority are so-called “forever prisoners” who have never been charged and are detained indefinitely, in some cases for as long. long as two decades so far.
Half of the remaining prisoners have been released but will remain behind bars until the United States finds countries to repatriate them.