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 1st, 2023 about the possible plea deal.

On September 6th, 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 23rd 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.”