Guantánamo prosecutors are exploring plea deals in 9/11 case after years of setbacks
More than 20 years after the Sept. 11, 2001, terrorist attacks that killed nearly 3,000 people, the U.S. government is acknowledging that the five men charged with that crime may never face a jury – and may instead receive plea deals.
Settlement talks are underway at the U.S. military court in Guantánamo Bay, Cuba, that would allow alleged 9/11 architect 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 lesser sentences.
The discussions taking place between prosecutors and defense attorneys are a tacit admission that Guantánamo's problem-plagued military court, where the 9/11 case has remained in the pre-trial stage for years, is unlikely to be able to take the men to trial, let alone win convictions.
From the beginning, the case has been mired in delays, setbacks and inefficiencies. Lawyers are still trying to resolve basic constitutional questions, arguing over what evidence can be admitted, and struggling with frequent personnel turnover, including of judges — all while having to fly back and forth to Cuba for hearings. The pandemic worsened the situation, causing a nearly two-year pause in proceedings.
Conditions are ripe for a different approach to the litigation. The 9/11 case has a new judge, a new chief prosecutor and a new chief defense counsel, and just this month a lead defense attorney asked to quit the case. Meanwhile, the Biden administration has vowed to close Guantánamo's court and prison, which have cost U.S. taxpayers more than $6 billion since 2002, and Republican opposition to that effort is lessening.
The former head of the military court, Harvey Rishikof, and his legal advisor, Gary Brown, broached similar settlement talks in 2017. However, the attorney general at the time, Jeff Sessions, objected and they were fired soon after. Brown has since filed a federal whistleblower complaint alleging, among other claims, that the firings were due to the plea deals they proposed, but the Defense Department said the two incidents are unrelated.
Reached by NPR, Brown called it "disheartening" that the court is only now embracing the proposal he and Rishikof made years ago.
"I definitely don't feel like I-told-you-so. I don't feel like that at all," Brown said. "I feel like my nation suffered...waiting for people to get to the right answer. And it's just — it's just a shame."
"I think realism is starting to set in, and just exhaustion," he added. "After so many years, the potential that the prosecution would be able to achieve a capital sentence that would then survive an appeal is very low, and still years away."
In confirming that settlement talks are underway, James Connell and Alka Pradhan, defense attorneys for one of the 9/11 defendants, issued a statement that said, in part, "Negotiated agreements represent one path to ending military commissions, stopping indefinite detention at Guantánamo Bay, and providing justice."
A spokesperson for the military court 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 ongoing commissions' litigation."
The 9/11 defendants — Mohammed, as well as 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 overseas CIA prisons where they were tortured, and transferred in 2006 to Guantánamo, where they have remained ever since.
They are charged with helping arrange or finance the hijacking of the four airplanes that crashed into the World Trade Center, the Pentagon, and a field in Pennsylvania. It was one of the worst mass casualty events in U.S. history, and plunged the country into the controversial "War on Terror."
As a result, many victims' family members — including people whose relatives were sickened and later died from the toxic fallout of the World Trade Center collapse — want the five men executed. The military court's original goal was to try them before a military jury and, if convicted, sentence them to the death penalty.
But over time, as the court's dysfunction deepened, some family members stopped believing a trial would ever happen and wondered if the 9/11 case would resolve with the aging defendants eventually dying in prison. For others, frustrated and disappointed by two decades of gridlock, plea deals increasingly appear to be an inevitable and sensible resolution.
"I mean, the alternative to not working out plea agreements is to return to the absolute broken-down process that we've lived with," said Terry Rockefeller, whose only sibling died in the World Trade Center collapse, and who belongs to September Eleventh Families for Peaceful Tomorrows, a group that advocates for a non-violent response to the terrorist attacks.
Rockefeller also noted that even if a trial were to be held and result in convictions, the appeals process is expected to last for years.
"I think everyone understands that if plea agreements can all be worked out, they just make much, much more sense," she said.
The settlement talks underway, first reported by The New York Times, would require numerous details to be worked out, including whether all the men would receive life sentences. Some of the defendants have argued that, compared to Mohammed, they played much lesser roles in the 9/11 attacks, so should receive a less severe punishment — especially since they have already spent about 20 years in prison and were tortured in custody.
It is also unclear where they would serve their prison sentences. If President Biden wants to shut down Guantánamo, he can't leave a handful of men in its military prison, which spends an estimated $13 million per prisoner per year. A law passed in 2015 prevents Guantánamo prisoners from entering the U.S. for any reason, but if that is repealed they could be held in the federal supermax prison in Colorado.
The men could also be imprisoned in a different overseas location, but that is not a simple process because the U.S. would have to find countries willing to accept them.
Defense lawyers for the 9/11 defendants have said that if the men receive prison sentences, they would prefer to remain at Guantánamo because they have gained increasing freedoms and amenities there over the years. If they are sent elsewhere, they could find themselves in a much harsher place.
"The prospect of serving a life sentence in a supermax was more terrifying to the defendants than capital punishment," Brown said.
Guantánamo's prison now holds 38 men, down from nearly 800 people over the years. In addition to the five 9/11 defendants, five more face pending charges for crimes unrelated to 9/11, but the majority are so-called "forever prisoners" who have never been charged and are being held indefinitely, in some cases for as long as two decades so far.
Half of the remaining prisoners have been cleared for release but will stay behind bars until the U.S. can find countries to repatriate them. Copyright 2022 NPR. To see more, visit https://www.npr.org.
ARI SHAPIRO, HOST:
The September 11 attacks happened more than 20 years ago, but there still has been no 9/11 trial to hold the people accused of that tragedy responsible. Now the U.S. government is acknowledging there may never be one. Settlement talks are underway between defense attorneys and prosecutors to have the 9/11 defendants plead guilty rather than face a jury. NPR's Sacha Pfeiffer has been following this case for years and joins us now. Hey, Sacha.
SACHA PFEIFFER, BYLINE: Hey, Ari.
SHAPIRO: Who are the defendants who might be getting these plea deals?
PFEIFFER: These are the five men accused of helping arrange the hijacking of those four airplanes that ended up killing almost 3,000 people on 9/11. The most notorious is Khalid Sheikh Mohammed. They've been held at the U.S. military prison in Guantanamo Bay, Cuba, for well over a decade. And the goal has been to bring them to trial before a military jury and give them the death penalty to execute them. And many victim family members want that. But now negotiations are happening to instead have them admit guilt, avoid capital punishment, and probably instead get life in prison.
SHAPIRO: Why are these negotiations happening now after so many years of attempts at holding a trial?
PFEIFFER: Ari, it is so hard to convey how dysfunctional this military court is. It's basically been stuck in place for years. Having lawyers fly back and forth to Cuba is massively inefficient. They're still fighting over what evidence can be introduced and over basic constitutional questions. There's also a long COVID delay. And this is still the pre-trial stage. Meanwhile, the court and prison at Guantanamo have cost U.S. taxpayers more than $6 billion. So some people stopped believing long ago that a trial was ever going to happen, and they consider settlements a sensible outcome. I called a former legal adviser to Guantanamo, Gary Brown, who actually recommended 9/11 plea deals years ago. And here's what he said.
GARY BROWN: I think realism is starting to set in and just exhaustion. After so many years, the potential that the prosecution would be able to achieve a capital sentence that would then survive an appeal is very low and still years away.
PFEIFFER: Plus, it's an ideal time for a new approach. There's a new judge, a new chief prosecutor, a new chief defense counsel. Just this month, one of the lead defense attorneys asked to quit. Also, President Biden has said he wants to close Gitmo, and there's less Republican opposition to that than there used to be.
SHAPIRO: You said earlier that these talks are an attempt for the defendants to plead guilty. They would avoid capital punishment and would probably get a life sentence. Is there a chance they could receive lighter sentences than life in prison?
PFEIFFER: There's a chance. Now, I cannot imagine an outcome where someone like Khalid Sheikh Mohammed would not get life without parole. He is the architect, allegedly, of the 9/11 attacks. But some of the others claim they had much lesser roles. And keep in mind, Ari, they've already been in prison for about 20 years, and they were tortured in custody. So it's possible some of them could get more lenient sentences.
SHAPIRO: Where would they serve their prison time?
PFEIFFER: That's a key detail that would need to be worked out. If the government wants to shut down Gitmo for good, they can't stay there. But right now there's a law that says no Guantanamo prisoners can enter the U.S. for any reason. But if that's repealed, they could serve their time in the federal supermax prison in Colorado. Or they could go to a different overseas location, but that's not a simple process because the U.S. would have to find countries willing to take them.
SHAPIRO: Have we heard from the families of 9/11 victims who've been waiting more than two decades for a resolution here?
PFEIFFER: Yes. And, you know, some of them are inevitably upset that these defendants could escape the death penalty. But many family members are tired. They're frustrated. They're disappointed that the military court has been such a failure, so settling the cases would at least make this end. Here's Terry Rockefeller, whose only sibling died in the World Trade Center attacks.
TERRY ROCKEFELLER: I mean, the alternative to not working out plea agreements is to return to the absolute broken-down process that we've lived with for 10 years.
PFEIFFER: And she also points out that even if there ever is a trial that results in convictions, the appeals would last for years.
SHAPIRO: NPR's Sacha Pfeiffer, thank you.
PFEIFFER: You're welcome, Ari. Transcript provided by NPR, Copyright NPR.