Guantánamo prosecutors are exploring plea deals in 9/11 case after years of setbacks

More than 20 years after the Sept. 11, 2001, terrorist attacks that killed nearly 3,000 people, the U.S. government is acknowledging that the five men charged with that crime may never face a jury – and may instead receive plea deals.

Settlement talks are underway at the U.S. military court in Guantánamo Bay, Cuba, that would allow alleged 9/11 architect Khalid Shaikh Mohammed and his four co-defendants to plead guilty, avoid the death penalty, and serve life in prison — although some of them may try to negotiate lesser sentences.

The discussions taking place between prosecutors and defense attorneys are a tacit admission that Guantánamo's problem-plagued military court, where the 9/11 case has remained in the pre-trial stage for years, is unlikely to be able to take the men to trial, let alone win convictions.

From the beginning, the case has been mired in delays, setbacks and inefficiencies. Lawyers are still trying to resolve basic constitutional questions, arguing over what evidence can be admitted, and struggling with frequent personnel turnover, including of judges — all while having to fly back and forth to Cuba for hearings. The pandemic worsened the situation, causing a nearly two-year pause in proceedings.

Conditions are ripe for a different approach to the litigation. The 9/11 case has a new judge, a new chief prosecutor and a new chief defense counsel, and just this month a lead defense attorney asked to quit the case. Meanwhile, the Biden administration has vowed to close Guantánamo's court and prison, which have cost U.S. taxpayers more than $6 billion since 2002, and Republican opposition to that effort is lessening.

The former head of the military court, Harvey Rishikof, and his legal advisor, Gary Brown, broached similar settlement talks in 2017. However, the attorney general at the time, Jeff Sessions, objected and they were fired soon after. Brown has since filed a federal whistleblower complaint alleging, among other claims, that the firings were due to the plea deals they proposed, but the Defense Department said the two incidents are unrelated.

Reached by NPR, Brown called it "disheartening" that the court is only now embracing the proposal he and Rishikof made years ago.

"I definitely don't feel like I-told-you-so. I don't feel like that at all," Brown said. "I feel like my nation suffered...waiting for people to get to the right answer. And it's just — it's just a shame."

"I think realism is starting to set in, and just exhaustion," he added. "After so many years, the potential that the prosecution would be able to achieve a capital sentence that would then survive an appeal is very low, and still years away."

In confirming that settlement talks are underway, James Connell and Alka Pradhan, defense attorneys for one of the 9/11 defendants, issued a statement that said, in part, "Negotiated agreements represent one path to ending military commissions, stopping indefinite detention at Guantánamo Bay, and providing justice."

A spokesperson for the military court declined to discuss the negotiations, writing in an email to NPR that "it would be inappropriate for the Office of Military Commissions to comment on issues raised in ongoing commissions' litigation."

The 9/11 defendants — Mohammed, as well as Ammar al-Baluchi, Mustafa al-Hawsawi, Walid bin Attash and Ramzi bin al-Shibh — were arrested after the attacks, held for several years in secret overseas CIA prisons where they were tortured, and transferred in 2006 to Guantánamo, where they have remained ever since.

They are charged with helping arrange or finance the hijacking of the four airplanes that crashed into the World Trade Center, the Pentagon, and a field in Pennsylvania. It was one of the worst mass casualty events in U.S. history, and plunged the country into the controversial "War on Terror."

As a result, many victims' family members — including people whose relatives were sickened and later died from the toxic fallout of the World Trade Center collapse — want the five men executed. The military court's original goal was to try them before a military jury and, if convicted, sentence them to the death penalty.

But over time, as the court's dysfunction deepened, some family members stopped believing a trial would ever happen and wondered if the 9/11 case would resolve with the aging defendants eventually dying in prison. For others, frustrated and disappointed by two decades of gridlock, plea deals increasingly appear to be an inevitable and sensible resolution.

"I mean, the alternative to not working out plea agreements is to return to the absolute broken-down process that we've lived with," said Terry Rockefeller, whose only sibling died in the World Trade Center collapse, and who belongs to September Eleventh Families for Peaceful Tomorrows, a group that advocates for a non-violent response to the terrorist attacks.

Rockefeller also noted that even if a trial were to be held and result in convictions, the appeals process is expected to last for years.

"I think everyone understands that if plea agreements can all be worked out, they just make much, much more sense," she said.

The settlement talks underway, first reported by The New York Times, would require numerous details to be worked out, including whether all the men would receive life sentences. Some of the defendants have argued that, compared to Mohammed, they played much lesser roles in the 9/11 attacks, so should receive a less severe punishment — especially since they have already spent about 20 years in prison and were tortured in custody.

It is also unclear where they would serve their prison sentences. If President Biden wants to shut down Guantánamo, he can't leave a handful of men in its military prison, which spends an estimated $13 million per prisoner per year. A law passed in 2015 prevents Guantánamo prisoners from entering the U.S. for any reason, but if that is repealed they could be held in the federal supermax prison in Colorado.

The men could also be imprisoned in a different overseas location, but that is not a simple process because the U.S. would have to find countries willing to accept them.

Defense lawyers for the 9/11 defendants have said that if the men receive prison sentences, they would prefer to remain at Guantánamo because they have gained increasing freedoms and amenities there over the years. If they are sent elsewhere, they could find themselves in a much harsher place.

"The prospect of serving a life sentence in a supermax was more terrifying to the defendants than capital punishment," Brown said.

Guantánamo's prison now holds 38 men, down from nearly 800 people over the years. In addition to the five 9/11 defendants, five more face pending charges for crimes unrelated to 9/11, but the majority are so-called "forever prisoners" who have never been charged and are being held indefinitely, in some cases for as long as two decades so far.

Half of the remaining prisoners have been cleared for release but will stay behind bars until the U.S. can find countries to repatriate them.

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