Plea Talks Are Under Way in Guantánamo September 11 Case that Could Take Death Penalty Off the Table

Military pros­e­cu­tors and defense attor­neys are report­ed­ly dis­cussing plea deals that could take the death penal­ty off the table in the Guantánamo mil­i­tary com­mis­sion cas­es of five men accused of involve­ment in the September 11, 2001 ter­ror­ist attacks on the World Trade Center and the Pentagon. The nego­ti­a­tions, first report­ed by the New York Times on March 15, 2022 and sub­se­quent­ly con­firmed by defense coun­sel, would require alleged 9/​11 plan­ner Khalid Shaikh Mohammed and four oth­ers to plead guilty to charges of ter­ror­ism and con­spir­a­cy to com­mit mur­der in vio­la­tion of the laws of war, and would end the more than 15-year legal morass sur­round­ing the cases. 

The defen­dants – Mohammed, Ammar al-Baluchi, Walid bin Attash, Ramzi Binalshibh, and Mustafa al Hawsawi – have been impris­oned at Guantánamo Bay since 2006, after hav­ing been tor­tured for years at CIA black sites. All five face the death penal­ty. Although they were for­mer­ly charged in 2008, none of their cas­es has advanced to tri­al. Instead, the cas­es have been run­ning a gamut of extra­or­di­nary pre­tri­al lit­i­ga­tion over the legal­i­ty of the tri­bunals; whether and to what extent the Guantánamo pris­on­ers were enti­tled to judi­cial review of their cas­es; defense access to clas­si­fied evi­dence; and use of evi­dence obtained by means of tor­ture. The COVID pan­dem­ic and numer­ous changes both in pros­e­cu­tion and defense per­son­nel and in the judges assigned to hear case have caused addi­tion­al significant delays. 

“Negotiated agree­ments rep­re­sent one path to end­ing mil­i­tary com­mis­sions, stop­ping indef­i­nite deten­tion at Guantánamo Bay, and pro­vid­ing jus­tice,” said attor­ney Alka Pradhan, who rep­re­sents al-Baluchi, also known as Ali Abdul Aziz Ali. 

Any agree­ment between pros­e­cu­tors and defense would have to be approved by the con­ven­ing author­i­ty, Colonel Jeffrey D. Wood. The pre­vi­ous con­ven­ing author­i­ty, Harvey Rishikof, explored the idea of pur­su­ing plea agree­ments, but then-Attorney General Jeff Sessions insist­ed there be no deals. Then-Secretary of Defense James Mattis fired Rishikof soon there­after, and the Pentagon did not explain the firing. 

The Guantánamo pro­ceed­ings have been plagued by retire­ments, res­ig­na­tions, and fir­ings of key per­son­nel. In April 2020, Air Force Colonel W. Shane Cohen, the third mil­i­tary com­mis­sion judge since 2012 to pre­side over the in the 9/​11 case, retired from active ser­vice. In July 2021, chief pros­e­cu­tor Army Brigadier General Mark S. Martins abrupt­ly announced his retire­ment after clash­ing with Biden admin­is­tra­tion offi­cials over their oppo­si­tion to using state­ments obtained through tor­ture from Guantánamo detainees. Most recent­ly, Cheryl Bormann, a defense lawyer for Walid bin Attash, sought per­mis­sion to resign from the case, say­ing that the Military Commissions Defense Organization was con­duct­ing an inves­ti­ga­tion into her ​“per­for­mance and con­duct.” The fourth pre­sid­ing judge, Col. Matthew N. McCall, has not ruled on Borman’s request, but delayed sched­uled hear­ings in the case until March 21, 2022.

With coun­sel for the pros­e­cu­tion and defense assem­bled in Guantánamo for the hear­ings, Clayton G. Trivett Jr., a lead pros­e­cu­tor in the cas­es, wrote an email to defense lawyers indi­cat­ing the government’s will­ing­ness to nego­ti­ate. ​“While I can­not guar­an­tee that we will come to terms over these next two weeks, putting a con­cert­ed effort focused sole­ly on pos­si­ble agree­ments while we are all onboard Guantánamo, where your clients and teams are present, may be our best chance of at least deter­min­ing if deals can be reached,” he said.

A group of 200 fam­i­ly mem­bers of indi­vid­u­als killed in the September 11 attacks has called for a nego­ti­at­ed res­o­lu­tion to the 9/​11 cas­es. In a March 7, 2022 post on its web­site, The September Eleventh Families for Peaceful Tomorrows advo­cat­ed for an agree­ment that would require each 9/​11 defen­dant to ​“plead guilty and agree to nev­er appeal his sen­tence. In exchange, the gov­ern­ment would no longer seek the death penal­ty.” Dropping the death penal­ty, the fam­i­ly mem­bers said ​“would be part­ly in recog­ni­tion of the tor­ture each of the defen­dants expe­ri­enced.” With a nego­ti­at­ed plea deal, the post said, ​“we would have assur­ance that the [9/​11 case] is closed, and some mea­sure of judi­cial final­i­ty will be achieved.”

Defense coun­sel for the detainees have asked the court to bar the gov­ern­ment from seek­ing the death penal­ty, argu­ing that, by tor­tur­ing the men at CIA black sites, the gov­ern­ment has lost the moral and legal author­i­ty to exe­cute them. Mohammed was water­board­ed 183 times, and all of the men were sub­ject­ed to tor­ture over the course of three to four years, includ­ing phys­i­cal, sex­u­al, and psy­cho­log­i­cal abuse, sleep depri­va­tion, beat­ings, being strung up by their arms in chains; being forced to remain nude or wear dia­pers; and ​“rec­tal rehydration.” 

Newly declas­si­fied doc­u­ments dis­closed that al-Baluchi was gra­tu­itous­ly tor­tured as part of ​“on-the-job train­ing” for CIA per­son­nel to gain offi­cial cer­ti­fi­ca­tion as inter­roga­tors. The Report of the CIA Inspector General Regarding Allegations of Torture Made by Ammar al-Baluchi, a redact­ed declas­si­fied ver­sion of which was post­ed by the inde­pen­dent media web­site Forever Wars, revealed that ​“each of the inter­roga­tors [uniden­ti­fied CIA inter­roga­tor] was train­ing used each of the [enhanced inter­ro­ga­tion tech­nique] mea­sures on Ammar in order to gain their cer­ti­fi­ca­tion.” One CIA inter­roga­tor told the inspec­tor gen­er­al that ​“the goal was for [the train­er] to observe the ear­ly 2003 class mem­bers employ EITs dur­ing an actu­al inter­ro­ga­tion, such as Ammar’s, and then to cer­ti­fy class mem­bers as inter­roga­tors.” Forever Wars report­ed March 13, 2022 that ​“the CIA kept al-Baluchi naked in front of women inter­roga­tors and per­formed cav­i­ty search­es ​‘includ­ing of his rec­tum, which Ammar prob­a­bly inter­pret­ed as threat­en­ing’” and on oth­er occa­sions ​“repeat­ed­ly doused him, nude, with frigid water.”

Sources sug­gest­ed to the New York Times that the reac­tion of the mil­i­tary jury in the case of Al Qaeda couri­er Majid Khan may have made the pros­e­cu­tion more will­ing to nego­ti­ate. That jury called the tor­ture of Khan ​“a stain on the moral fiber of America” and urged that he be grant­ed clemen­cy. A state­ment released by al-Baluchi’s lawyers on March 15 that con­firmed that nego­ti­a­tions were ongo­ing not­ed that the news of the nego­ti­a­tions ​“came amidst new­ly pub­lic infor­ma­tion about the use of tor­ture against Mr. al Baluchi for prac­tice rather than to obtain information.”