The 9/11 Trial: Why Are Plea Discount Talks Underway?

GUANTÁNAMO BAY, Cuba — Pentagon prosecutors have struggled for greater than a dozen years to carry the death-penalty trial of Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11, 2001, assaults, and his 4 co-defendants at Guantánamo Bay.

They’ve litigated every part from Mr. Mohammed’s choice of court attire — he generally dons a paramilitary camouflage vest — to how a lot proof of C.I.A. torture the protection groups and, in the end, a navy jury ought to be allowed to see.

Now a trial prosecutor who has been on the case for the reason that George W. Bush administration, Clayton G. Trivett Jr., is in talks with protection attorneys about buying and selling responsible pleas for at most life in jail with out parole.

Why are the 2 sides speaking? Here’s a rundown.

Delays, Delays, Delays

Between stalled litigation throughout the coronavirus pandemic and the tempo of discovery and pretrial hearings, jury choice can’t begin earlier than mid-2024 — and that’s in accordance with probably the most optimistic estimate.

However that was earlier than the death-penalty lawyer for one of many defendants, Walid bin Attash, requested to quit the case, creating a possible emptiness in a key place that should be stuffed except prosecutors abandon their insistence on a joint, five-man trial.

The coronavirus has already compelled a 500-day recess. An earlier choose, the third on the case, retired in the beginning of the pandemic. The present choose, Col. Matthew N. McCall, didn’t get the project till August as a result of prosecutors thought of him too inexperienced. He has since restricted the tempo of litigation whereas he learns the court docket file, together with hundreds of pages of secret prosecution filings.

New Political Management

Detention operations at Guantánamo Bay, which have held 780 men and boys as detainees, have lasted for 4 administrations. Mr. Bush established the jail and court docket system, and President Barack Obama overhauled the court docket with the purpose of ending detainee operations. Congress thwarted him.

President Donald J. Trump maintained the operation, and promised so as to add new prisoners, however by no means did. His first lawyer normal, Jeff Periods, was against negotiations. In 2017, after Mr. Periods realized that the senior Pentagon official overseeing the trial was discussing a plea with protection attorneys, he called Defense Secretary Jim Mattis and declared “no deal.” Mr. Mattis fired the overseer, Harvey Rishikof, citing different causes.

President Biden got here into workplace with the purpose of ending detention operations at Guantánamo Bay.

A letter written by a lawyer at his Nationwide Safety Council acknowledges that pretrial plea offers could possibly be acceptable as a method to resolve some navy commissions circumstances, however stresses that the White Home takes no place on what ought to occur in any specific matter.

New Management on Trial Groups

The long-running chief conflict crimes prosecutor, Brig. Gen. Mark S. Martins, retired from the Army in September. An excellent longer-serving case prosecutor, Robert Swann, left the case in late 2021. Kinfolk of among the victims of the Sept. 11 assaults who’ve met the boys — together with those that oppose and favor the loss of life penalty — describe them as solidly dedicated to bringing the case to a capital trial.

The brand new interim chief prosecutor, George C. Kraehe, an Military Reserve colonel, has delegated the authority to barter to 3 civilians, all Justice Division workers, who’ve been on the case for the reason that starting: Mr. Trivett, a Navy Reserve commander; Edward Ryan, a federal prosecutor; and Jeffrey D. Groharing, a Marine Corps Reserve colonel.

The protection groups have new management, too. Brig. Gen. Jackie L. Thompson Jr. of the Military took cost because the chief protection counsel in January and wrote Mr. Biden in search of help for resolving the case by means of pleas.

One of many nation’s main and longest-serving capital protection attorneys, David I. Bruck, additionally made his first court docket look within the case in September.

The Majid Khan Case

Final 12 months, a navy jury’s condemnation of torture by the C.I.A. in one other conflict crimes case raised questions of whether or not prosecutors might win a unanimous death-penalty determination even for Mr. Mohammed, 53, the accused architect of the hijackings plot.

Within the case of Majid Khan, a confessed courier for Al Qaeda, U.S. navy officers on his jury referred to as his merciless therapy “a stain on the moral fiber of America” and urged the Pentagon overseer of the conflict court docket to grant the prisoner clemency. Mr. Khan was abused rectally and stored nude, sleep disadvantaged and almost starved in the identical program of “enhanced interrogation” that tortured Mr. Mohammed, who was additionally waterboarded 183 instances.

Charles Stimson, a retired Navy choose who managed detainee coverage on the Pentagon for the Bush administration from 2005 to 2007, mentioned lately that the Khan case illustrated that, even when prosecutors get the Sept. 11 defendants to trial and win a conviction, “the likeness of their coming to a unanimous verdict with respect to the loss of life penalty is near zero.”

Negotiations are acceptable even for the “worst conflict crime that has been dedicated in our lifetime,” mentioned Mr. Stimson, who’s now a scholar on the conservative Heritage Basis. “Any man or lady serving in america navy who hears concerning the therapy that these detainees had by the hands of america authorities goes to weigh that fairly closely within the sentencing portion of the trial. And it received’t go over nicely.”

Extra Disclosures of Torture

At first, court docket safety officers briefed by the intelligence businesses forbade point out of the phrase “torture” in open court docket hearings.

A lawyer couldn’t clarify why the Saudi defendant Mustafa al-Hawsawi, 53, who’s accused of serving to the Sept. 11 hijackers with journey and bills, sat gingerly on a pillow in court docket. In time, his attorneys had been allowed to say he was sodomized by the C.I.A. throughout his detention within the black websites.

The extra time has handed, the extra grisly particulars about this system that held and tortured the defendants between 2002 and 2006 have emerged — regardless of claims by prosecutors for years that the protection groups had all of the proof they wanted to organize for trial.

However three of the presiding judges have ordered the disclosure of an increasing number of info, typically requiring permission of the C.I.A. or different intelligence businesses.

Since getting the case over the summer season, protection attorneys say, Colonel McCall has ordered much more disclosures.

In these conditions, if prosecutors invoke a nationwide safety privilege and refuse to offer the fabric, the choose can order cures. He might droop the case till the federal government turns over the data. He might dismiss the case. Or he might downgrade it by making life in jail the last word attainable sentence

Mounting Psychological Sickness Claims

Attorneys for Mr. Mohammed’s nephew, Ammar al-Baluchi, 44, have lengthy argued that the prisoner is mind broken because of his torture by the C.I.A., and that he wants rehabilitation that the navy at Guantánamo can’t present.

His protection crew lately submitted materials to a federal court docket panel a couple of 2003 episode during which C.I.A. trainees had been taught an enhanced interrogation method referred to as “walling.” They took turns slamming his head right into a wall till he blacked out.

The well being of the person accused of serving as a deputy to Mr. Mohammed within the Sept. 11 plot, Ramzi bin al-Shibh, 49, has additionally lengthy clouded the case. At first, his claims that he was being sleep disadvantaged by outdoors forces making noises and vibrating his jail cell interfered together with his attorneys’ potential to craft a protection. In recent times, the issues escalated to him howling from sharp pinprick pains in his genitals and different physique components.

Final month, the U.S. navy delivered to Saudi Arabia for psychiatric care a schizophrenic prisoner whose torture by U.S. forces way back made him ineligible for the Sept. 11 conspiracy trial. That man, Mohammed al-Qahtani, was held at Guantánamo because the suspected would-be 20th hijacker for twenty years, solely to be really useful for launch after a Navy physician concluded he couldn’t get correct care on the jail.

Altering Political Local weather

Be it distraction by the occasions in Ukraine or a way that one thing has modified 20 years after the Sept. 11 assaults, few Republicans protested the choice to launch Mr. Qahtani, main some critics of the navy jail in Cuba to counsel that Guantánamo has receded as a political rallying level.

“The Bush administration tortured the defendants and constructed a system to keep away from the results of it,” mentioned Scott Roehm, the Washington director of the Middle for Victims of Torture. “That was by no means going to work.”

He referred to as it noteworthy that, whereas a couple of Republicans made an impassioned protection of the necessity to preserve Guantánamo open, none of them spoke up at a Senate Judiciary Committee meeting in December after the chief protection counsel on the time, Brig. Gen. John G. Baker, argued for the “negotiated decision of the circumstances.”

“A lot of the listening to was a dialogue of plea offers,” Mr. Roehm mentioned. “And no one mentioned: ‘That is loopy. Don’t do that. We object to a plea technique.’ There wasn’t any pushback in any respect.”

As a substitute, Senator Lindsey Graham, Republican of South Carolina, provided a spirited protection of Guantánamo-style detention below the legal guidelines of conflict.

“I’ve by no means accepted the false selection of ‘attempt them or launch them,’” he mentioned. “You possibly can maintain any individual till they die as an enemy combatant if it’s unsafe to launch them if the conflict is just not over.”

“If we will attempt them, nice,” mentioned Mr. Graham, a retired Air Power JAG colonel. “If we will’t, let’s maintain them.”