‘Original Sin’: Torture of 9/11 suspects means they may never face trial even without a plea deal

WASHINGTON — Disagreements within the Defense Department over how to prosecute a 9/11 defendant 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 them from doing so.

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criticism of the agreement from some family members and Republican lawmakers, Defense Secretary Lloyd Austin on Aug. 2 rescinded the agreement signed by an official he had appointed.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.