9/​11 Victims’ Family Members, Members of Congress Urge Biden Administration to Abandon Plea Negotiations with Guantanamo Detainees

Family mem­bers of some of the vic­tims of 9/​11 have asked the Biden Administration to aban­don cur­rent plea nego­ti­a­tions with Guantánamo detainees that would remove the pos­si­bil­i­ty of death sen­tences for the men accused of plan­ning the 9/​11 ter­ror attacks. Khalid Shaikh Mohammed and his four co-defen­dants have been held for more than twen­ty years, first at CIA black sites where they were sub­ject to ​“enhanced inter­ro­ga­tion tech­niques” and then at Guantánamo, but none has pro­ceed­ed to tri­al. The request came after fam­i­ly mem­bers were noti­fied by the Pentagon on August 1^st, 2023 about the pos­si­ble plea deal.

On September 6^th, President Biden reject­ed some of the terms request­ed by the detainees as part of a pos­si­ble plea deal, but not the pos­si­bil­i­ty of remov­ing death as a penalty.

In the let­ter sub­mit­ted by some 9/​11 fam­i­ly mem­bers, they ask President Biden to ​“pri­or­i­tize the inter­ests of the vic­tims of the 9/​11 Terrorist Attacks over those of Khalid Sheikh Mohammed or oth­er ter­ror­ists; that you not bow to the demands of any embar­rassed gov­ern­ment offi­cials will­ing to sac­ri­fice trans­paren­cy.” A sim­i­lar request was made on August 23^rd by 32 Republican Members of Congress and one Democrat, who also sent a let­ter to President Biden, writ­ing, ​“We owe it to the vic­tims and their fam­i­lies to deliv­er jus­tice – and that should mean the death penal­ty for these murderers.”

Recent events, how­ev­er, sug­gest that the pros­e­cu­tion may have dif­fi­cul­ty secur­ing con­vic­tions and death sen­tences if the cas­es pro­ceed to tri­al. According to a report that was filed under seal on August 25, 2023, a mil­i­tary med­ical board deter­mined that one of the five defen­dants, Ramzi bin al-Shibh, has a men­tal ill­ness which makes him incom­pe­tent to stand tri­al or plead guilty in the case. Judge Matthew N. McCall will now decide whether to sev­er Mr. bin al-Shibh from the joint tri­al and pro­ceed with a pros­e­cu­tion of the oth­er four defen­dants or post­pone all pro­ceed­ings until Mr. bin al-Shibh receives treat­ment and is restored to com­pe­ten­cy. All of his co-defen­dants also report suf­fer­ing from severe men­tal and phys­i­cal dis­or­ders caused by the tor­ture they endured in CIA cus­tody. The hear­ings are sched­uled to resume the week of September 18 at Guantánamo Bay. 

The deci­sion in the recent case of anoth­er Guantánamo detainee may also pre­view the evi­den­tiary chal­lenges that pros­e­cu­tors will face. On August 18, 2023, Colonel Lanny J. Acosta Jr. ruled on the admis­si­bil­i­ty of evi­dence secured by ​“clean team” fed­er­al agents in the case against Mr. Al-Nashiri, the Saudi nation­al who is accused of plot­ting the sui­cide bomb­ing of the U.S.S. Cole in 2000. Judge Acosta found that Mr. Al-Nashiri’s alleged con­fes­sion, which fed­er­al agents at Guantánamo Bay obtained in 2007, is inad­mis­si­ble. In his deci­sion, Judge Acosta not­ed that ​“any resis­tance the accused might have been inclined to put up when asked to incrim­i­nate him­self was inten­tion­al­ly and lit­er­al­ly beat­en out of him years before.” Similar to Mr. bin al-Shibh, Mr. Al-Nashiri has been diag­nosed with post-trau­mat­ic stress dis­or­der by US mil­iary doc­tors, for which he has nev­er received treat­ment. In an arti­cle pub­lished by The New York Times, Stephen I. Vladeck, a pro­fes­sor at the University of Texas School of Law who has stud­ied the war court, stat­ed that the rul­ing ​“dri­ves home that it is actu­al­ly not pos­si­ble to san­i­tize cas­es against peo­ple who were in the [ren­di­tion, deten­tion and inter­ro­ga­tion] program.”