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.”