The 9/11 Trial: Why Are Plea Bargains Happening?

GUANTÁNAMO BAY, Cuba — Pentagon prosecutors have struggled for more than a dozen years to hold the death penalty trial of Khalid Shaikh ...


GUANTÁNAMO BAY, Cuba — Pentagon prosecutors have struggled for more than a dozen years to hold the death penalty trial of Khalid Shaikh Mohammed, the mastermind accused of the September 11, 2001 attacks, and his four co- accused at Guantanamo Bay.

They pleaded everything from Mr. Mohammed choice of court dress — he sometimes dons a paramilitary camouflage vest — about how much evidence of CIA torture defense teams and, ultimately, a military jury should be allowed to see.

Clayton G. Trivett Jr., a trial attorney on the case from the George W. Bush administration, is in talks with defense attorneys about swapping guilty pleas for at most jail life without parole.

Why are the two parties talking? Here is an overview.

Between litigation stalled during the coronavirus pandemic and the pace of discovery and status hearings, jury selection may not begin until mid-2024 — and that’s by the most optimistic estimate.

But that was before the death penalty lawyer for one of the defendants, Walid Bin Attachwas asked to quit the casecreating a potential vacancy in a key post that must be filled unless prosecutors drop their insistence on a five-man joint trial.

The coronavirus has already forced a 500-day suspension. A previous judge, the third on the case, retired at the start of the pandemic. The current judge, Col. Matthew N. McCall, did not get the assignment until August because prosecutors considered him too inexperienced. He has since limited the pace of litigation while he learns the court filing, including thousands of pages of secret lawsuit documents.

The detention operations at Guantánamo Bay, which took place 780 men and boys as detainees, lasted for four authorities. Mr. Bush established the prison and court system, and President Barack Obama overhauled the court in an effort to end inmate operations. Congress thwarted it.

President Donald J. Trump kept the operation going and promised to add new prisoners, but never did. His first attorney general, Jeff Sessions, was opposed to the negotiations. In 2017, after Sessions learned that the senior Pentagon official overseeing the trial was discussing a plea with defense attorneys, he called Secretary of Defense Jim Mattis and said “disagree”. Mr Mattis fired the overseer, Harvey Rishikofciting other reasons.

President Biden took office with the aim of ending detention operations at Guantánamo Bay.

A letter written by a lawyer for its National Security Council acknowledges that pretrial plea agreements might be appropriate to resolve some military commission cases, but stresses that the White House is not taking a position on what should happen in a particular case.

Longtime chief war crimes prosecutor Brig. Gen. Mark S. Martins, retired from the army in September. An even more senior prosecutor, Robert Swann, left the case at the end of 2021. Relatives of some of the victims of the 9/11 attacks who met with the men – including those who oppose and support the death penalty – describe them as firmly committed to carrying the case through to capital punishment.

The new acting chief prosecutor, George C. Kraehe, an Army Reserve colonel, has delegated negotiating authority to three civilians, all Justice Department employees, who have been on the case since the start: Mr. Trivett, a naval reserve commander; Edward Ryan, federal prosecutor; and Jeffrey D. Groharing, a Marine Corps Reserve colonel.

Defense teams also have new leaders. Brig. Army Gen. Jackie L. Thompson Jr. took over as lead defense attorney in January and wrote to Mr. Biden asking for help in resolving the case through pleas.

One of the capital’s most prominent and longest-serving defense attorneys in the nation, David I. Bruck, also made his first court appearance in the case in September.

Last year, a military jury’s conviction of CIA torture in another war crimes case raised questions about whether prosecutors could achieve a unanimous decision on the death penalty even for Mr Mohammed53-year-old architect accused of embezzlement conspiracy.

In the case of Majid Khan, an admitted al-Qaeda courier, US military officers on his jury called his cruel treatment “a stain on America’s moral fiberand urged the war tribunal’s Pentagon overseer to grant the prisoner clemency. Mr Khan was rectally abused and kept naked, sleep deprived and nearly starved in the same ‘enhanced interrogation’ program that tortured Mr Mohammed, who was also drowned 183 times.

Charles Stimsona retired Navy judge who managed Pentagon detention policy for the Bush administration from 2005 to 2007, said recently that the Khan case illustrates that even if prosecutors bring 9/11 defendants to trial and obtain a conviction, “the resemblance of them arriving at a unanimous verdict on the death penalty is close to zero.

Negotiations are appropriate even for the “worst war crime in our lifetime”, said Mr Stimson, who is now a researcher at the conservative Heritage Foundation. “Any man or woman serving in the United States military who hears about the treatment these detainees have received from the United States government is going to weigh that quite heavily in the sentencing part of the trial. And it’s not going to go well.

At first, court security officers briefed by intelligence agencies prohibited the mention of the word “torture” during public hearings.

A lawyer could not explain why the Saudi accused Mustafa al-Hawsaoui, 53, who is accused of helping the 9/11 hijackers with travel and expenses, sat gingerly on a pillow in court. In time, his lawyers were allowed to say that he had been sodomized by the CIA during his detention in the black sites.

As time has passed, more grisly details about the program that detained and tortured defendants between 2002 and 2006 have emerged – despite claims by prosecutors for years that defense teams had all the evidence they needed to prepare for trial.

But three of the presiding judges ordered the release of more and more information, often requiring authorization from the CIA or other intelligence agencies.

Since the case was opened this summer, according to defense attorneys, Colonel McCall has ordered even more disclosures.

In these situations, if prosecutors claim national security privilege and refuse to provide evidence, the judge can order reparations. He could put the case on hold until the government releases the information. He could close the case. Or he could downgrade it by making life in prison the ultimate possible sentence.

Lawyers for Mr. Mohammed’s nephew, Ammar al-Baluchi44, have long maintained that the prisoner suffers brain damage as a result of his torture by the CIA and needs rehabilitation that the Guantánamo army cannot provide.

His defense team recently submitted documents to a Federal Court panel about a 2003 episode in which CIA trainees learned an enhanced interrogation technique called “walling.” They took turns banging his head against a wall until he passed out.

The health of the man accused of being Mr Mohammed’s deputy in the 9/11 plot, Ramzi bin al-Shibh, 49, also long obscured the matter. At first, his claims that he was deprived of sleep by outside forces making noise and vibrating his prison cell hampered his attorney’s ability to mount a defense. In recent years, the problems escalated until he was screaming with sharp pains in his genitals and other parts of his body.

Last month, the U.S. Army delivered to Saudi Arabia for psychiatric care a schizophrenic prisoner whose torture by US forces has long since rendered him ineligible to stand trial for the 9/11 conspiracy. This man, Mohammed al-Qahtani, was held at Guantanamo as the 20th suspected hijacker for two decades, only to be released after a Navy doctor concluded he could not receive proper treatment in jail.

Whether it’s the distraction caused by events in Ukraine or a sense that something has changed 20 years after the September 11 attacks, few Republicans have protested the decision to free Mr. Qahtani, leading some critics of Cuba’s military prison to suggest that Guantánamo backed down. as a political rallying point.

“The Bush administration tortured the defendants and built a system to avoid the consequences,” said Scott Roehm, Washington director of the Center for Victims of Torture. “It was never going to work.”

He called it remarkable that while a few Republicans passionately defended the need to keep Guantánamo open, none of them spoke at a Senate Judiciary Committee Meeting in December after then-Chief Defense Counsel Brig. General John G. Baker, argued for “negotiated resolution of cases”.

“A lot of the hearing was a discussion about plea deals,” Mr. Roehm said. “And no one said, ‘This is crazy. Do not do that. We oppose an advocacy strategy. There was no setback at all. »

In place, Senator Lindsey Graham, Republican of South Carolinaoffered a spirited defense of detention at Guantanamo under the laws of war.

“I never accepted the false choice of ‘trying them or releasing them,'” he said. “You can hold someone until they die as an enemy combatant if they are unsure of releasing them if the war isn’t over.”

“If we can try them, great,” said Mr. Graham, a retired Air Force JAG colonel. “If we can’t, let’s hold them.”

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