‘Original sin’: Torture of 9/11 suspects means even without plea deals, they may never face a verdict

WASHINGTON (AP) — Disagreements within the Defense Department over how to prosecute a 9/11 suspect and two others have thrown the case into disarray and exposed tensions between the desire of some victims’ families to reach a final legal settlement and the serious obstacles that could prevent that.

Defense attorneys and some legal experts blame much of the endless delays on what they call the “original sin” that haunts military trials: the illegal torture that Khalid Sheikh Mohammed and his co-defendants endured in CIA custody. Those years of abuse have complicated the case, leaving lawyers to sort out legal issues two decades later in the often-forgotten courtrooms of the U.S. military’s Guantanamo Bay base in Cuba.

The approved plea agreement, which spared Mohammed and two co-defendants from the death penalty, appeared to remove those obstacles and bring the cases to a conclusion. But after criticism of the agreement from some family members and Republican lawmakers, Defense Secretary Lloyd Austin on Aug. 2 rescinded the agreement signed by an official he had appointed.

Austin later said he believed the Americans deserved the opportunity to see the trials through to their conclusion. Deputy Pentagon spokeswoman Sabrina Singh said Friday that the case “will continue toward a trial with pretrial proceedings as has been the case to date.”

Asked for comment, a CIA spokesman said that “the CIA’s detention and interrogation program ended in 2009.”

These events reflect the divide between the desire of many to see the defendants convicted and sentenced to death and the view of many experts that legal obstacles in the form of torture, evidentiary disputes and other extraordinary government actions make it unrealistic to expect a resolution of the case any time soon.

Relatives of some of the nearly 3,000 people killed in 2001 when al-Qaeda recruits flew four hijacked planes into the World Trade Center, the Pentagon and a Pennsylvania field differ in their expectations for the outcome of the prosecution. But there is a shared frustration with the conduct so far.

Some said they still want the death penalty, even though they know legal complications could make that impossible.

“They’ve been telling us this for years,” said Terry Strada, a leader of the group 9/11 Families United and one of the most vocal representatives of the family movement.

Strada said she is still willing to wait years for justice and “a punishment that fits the crime. And that would be the death penalty.”

Brett Eagleson, whose father, Bruce, was one of the victims of the World Trade Center attack, said families should not suffer the consequences of government negligence.

“At the end of the day, if … they can’t prosecute them or they can’t convict them, well, the blood is not on our hands because all the evidence they obtained was illegal. That’s not our problem,” he said.

“This is blood on the hands of the Bush administration and blood on the hands of the CIA,” said Eagleson, president of 9/11 Justice, a victims’ rights group. “This has nothing to do with us, and I think the juice is worth squeezing.”

Guantanamo attorney J. Wells Dixon points to his own experience of how persuasive revelations of torture can be when cases go to trial. In 2021, seven of the eight members of a military panel of officers who served as jurors in the Guantanamo trial of Majid Khan, a former al-Qaeda courier whom Dixon represented, surprised the court by asking for clemency for him after hearing his account of mistreatment.

Torture in CIA custody “is a stain on the moral fabric of America; the treatment of Mr. Khan by U.S. personnel should be a source of shame to the U.S. government,” the officials wrote to the judge.

After more than a decade of pretrial hearings on the admissibility of torture-tainted evidence and other significant legal challenges, the 9/11 case “is now potentially further from trial than it was when she was charged,” Dixon said. “And the reason for that is because everything about this case is so tainted with torture.”

Mohammed and two co-defendants, Walid bin Attash and Mustafa al-Hawsawi, agreed to a plea deal that would require them to answer questions about the attack from relatives of the victims.

A fourth defendant, Ammar al-Baluchi, has not agreed to a plea deal and is the only one to be involved in pretrial hearings, while the others are challenging Austin’s decision. A military judge at Guantanamo declared a fifth 9/11 defendant, Ramzi bin al-Shibh, mentally unfit last year after a board of military doctors diagnosed him with post-traumatic stress disorder and psychosis following torture and solitary confinement in CIA custody.

The abuses that 9/11 defendants and other detainees in CIA custody were subjected to began in the stated interest of urgently obtaining information to prevent further attacks. Critics question whether what the George W. Bush administration called “enhanced interrogation” techniques ever produced information that prevented attacks.

The authors attribute much of the delays to the administration’s decision to establish special military commissions to try foreign defendants under regulations dating back to World War II.

In 2009, then-Attorney General Eric Holder announced a plan to try Mohammed and four other defendants in civil court in New York.

Those plans were put on hold and ultimately shelved amid opposition from members of Congress, who imposed restrictions on transporting detainees into the U.S., and from New York politicians who feared the process would require costly security measures and be a burden on neighborhoods recovering from the attacks.

Other serious challenges loom for the four judges who rotated at Guantanamo. If the 9/11 cases ever clear the hurdles of trials, convictions and convictions, the U.S. Court of Appeals for the District of Columbia Circuit will likely weigh in on many of the issues in any death sentence appeals.

These issues include the CIA’s destruction of interrogation tapes, whether the revocation of the Austin agreement constituted unlawful interference, and whether the torture of the men influenced subsequent interrogations by “clean teams” of FBI agents in which no violence was used.

Eugene R. Fidell, who teaches military law at Yale University Law School, said the impact of torture on the case raises questions about whether any death penalty would survive federal court scrutiny.

“I am not an advocate for these defendants. I think the crimes they are accused of are horrible,” Fidell said. “But when it comes to the justice system, there are a lot of problems here. And they seem to be ongoing.”

While some relatives of the victims have openly expressed their desire to execute Mohammed and others, others say the military commissions are a travesty that must be ended.

Elizabeth Miller, who was 6 when her father, a Douglas firefighter, was killed in the World Trade Center, helps lead a group of 250 family members, September 11th Families for Peaceful Tomorrows, that opposes the death penalty. Miller has been logging on to a government portal provided as part of the settlement this month to send Mohammed a series of questions, including whether he feels remorse. Austin’s repeal of the settlement has put that search for answers on hold.

Sally Regenhard, co-founder of another group representing firefighters’ families, the Skyscraper Safety Campaign, urged that the criminal proceedings be moved to a federal courthouse in Manhattan, just blocks from the “crime scene.”

“Speed ​​it up and stop the years from passing,” she said. “How many more parents will have to die knowing they never got justice for the murder of their child?”

History continues