25 years after the 9/11 attacks, where does the trial stand?

0:00It's Consider This, where every day we go deep on one big news story. Today, the 9-11 trial still stuck in limbo 25 years later. We're going to start by looking back on September 11th itself with a snapshot of the reports and calls that documented how the world and so many lives changed that morning. And just a note that some of the sound might be difficult to hear. We understand that there has been a plane crash on the southern tip of Manhattan. The World Trade said that Tower No. 1 is on fire. Oh my goodness. We're looking at a live picture from Washington, and there is smoke pouring out of the Pentagon.

0:38Tuesday, 9.47 a.m. Hi, baby. Baby, you have to listen to me carefully. I'm on a plane that's in hijack. I'm on the plane. I'm calling from the plane. I hope to be able to see your face again, baby. I love you. Bye. That last voice was Cece Lyles, a flight attendant on United Airlines Flight 93. That night, President George W. Bush addressed the nation. The search is underway for those who are behind these evil acts. I've directed the full resources of our intelligence and law enforcement communities to find those responsible and to bring them to justice. The U.S. response to those attacks was massive.

1:20New surveillance programs, new wars, ultimately a SEAL team raid that killed Osama bin Laden, the al-Qaeda leader who directed the attacks. But that promise to bring those responsible to justice is still incomplete. Consider this. After decades in detention at Guantanamo Bay, five men accused of planning the 9-11 attack still have not seen trials. We'll explain why.

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3:11It's Consider This from NPR. You'll know NPR's Sasha Pfeiffer as sometimes moonlighting host of this podcast. Ordinarily, she is an investigative correspondent, and one of her beats is Guantanamo. Since today is the 25th anniversary of the September 11th attacks, an event that led to the creation of a U.S. military court in Guantanamo Bay, Cuba, for a suspected terrorist, Sasha and I wanted to talk about the status of the 9-11 case, which, as we've mentioned, still has not gone to trial. No, it has not. After all this time, that case is still pending. And five men charged with plotting the attacks, they have been locked up in Guantanamo for two decades.

3:50Correct. All of them are being held in a prison camp within the U.S. naval base in Guantanamo. And the five include the alleged mastermind, Khalid Sheikh Mohammed. They're accused of funding the attacks, training some of the hijackers, helping with travel arrangements and so on. And one fact that I think is lost is that, on paper at least, the case is still proceeding to trial even after these 25 years. That is officially what is happening. For years and years and years, teams of lawyers and translators and investigators and many other types of court-related personnel have been going back and forth to Cuba for hearings.

4:23They fly on charter flights at great taxpayer expense. The court record at this point, Scott, is hundreds of thousands of pages long, and numerous judges have come and gone over the years. Which gets the most basic question in all of this. Why has there been no trial? Two main reasons, basically. I am going to play you some tape from a lawyer who's done a lot of work for Guantanamo prisoners. His name is Michel Paradis, and he explains the lengthy delay this way. I think the most obvious reason is that they're trying to try them in Guantanamo, in military commissions that were designed to achieve speedy justice with very limited rules.

4:58And what they have given us instead is interminable delay, endless pretrial litigation. The military commissions, he refers to the military court, was basically invented from scratch after the 9-11 attacks. This case could have been tried in U.S. federal court, and many people think if it had, it would be long over by now. Our federal courts have successfully prosecuted countless terrorism suspects who are now in U.S. prisons, but our government put the military court in Cuba because they said they wanted it to be beyond the reach of U.S. law. Though ultimately the Supreme Court did say the U.S.

5:32Constitution does apply to Guantanamo. Correct. And that has resulted in all sorts of fights over what evidence can be admitted, what's classified. And that gets to the other main reason this case is so hard to try, which is torture. Right. Because before these men were sent to Guantanamo, they were subjected to really brutal treatment in secret CIA prisons based overseas. The black sites, they were called. They were in countries like Afghanistan, Romania, Thailand, Morocco. And this was the infamous waterboarding, right? In addition to that, they were prevented from sleeping for days. They were put in these cramped coffin-like boxes, and they were physically slammed against walls, right?

6:08Yes, mock burials, aggressive cavity searches. In fact, one of the defendants has been declared mentally incompetent to stand trial, and his lawyers say that's due to him having been tortured. The U.S. was trying to punish them, and it was also trying to get information out of them. There is still a debate, as you know, about how effective that torture was at getting any valuable intelligence. But once you torture someone, you make it very difficult to successfully prosecute them. I want to play a piece of audio from a live taping this week of NPR's National Security Podcast Sources and Methods, hosted, of course, by our colleague Mary Louise Kelly.

6:42I attended that taping, and a panel of national security experts reminded the crowd how terrified the United States was right after the September 11th attacks. We thought more attacks were coming, maybe nuclear attacks. So as one of the panelists put it, the gloves did come off. Here's a different panelist, Stephen Hadley. He's a former advisor to President George W. Bush. We knew at the time that we were going to authorize and do things and establish programs that when the crisis of the moment and the concern of the moment had died down, the American people may be uncomfortable with them. We knew that was a possibility, but we thought these were measures we had to do to get on top of the threat to prevent the country from being attacked again.

7:27And I think that was the right tradeoff. And that tradeoff, right or wrong, has had consequences. As an example, if a confession is coerced, it cannot be used as evidence. And so far in the 9-11 case, two confessions have been thrown out by a judge because they were given under duress, and that weakens the prosecution's case. This next tape is from a Guantanamo defense attorney named Aka Pradhan. You can either take people and torture them, and hopefully you don't do that because it's illegal, or you can have a fair trial for them. You can't do both. Given all of this, what are the prosecutors' current plans for moving forward without those confessions?

8:03The government says it has other evidence like telephone intercepts. But two years ago, prosecutors said settling the 9-11 case was a better option than continuing to try to proceed to trial. Those prosecutors actually agreed to plea deals with the defendants that would let them avoid the death penalty in exchange for pleading guilty to murdering nearly 3 ,000 people. And then this was such a shocking twist. Those plea deals were retracted. Yes, they were. The defense secretary at the time, Lloyd Austin, rescinded them. I remember that because I was interviewing a family member of somebody who died in 9-11 about that moment.

8:37And he talked about how, from his perspective, the case looked like it was finally going to be resolved. There was suddenly going to be some legal closure. And then suddenly it was back to what he called the land of uncertainty. And so many 9-11 family members feel that way. They are worn out by how long this has dragged on and by whiplash decisions like the plea deals being reversed. And by the way, the plea deal situation has been appealed to the Supreme Court, although the court hasn't decided yet whether to hear the case. One family member I've interviewed a lot is Colleen Kelly. She lost her brother in the World Trade Center collapse.

9:09And this is what Colleen recently told me. You know, I'm tired of the peaks and valleys, so I just kind of roll along with it and see how it plays out. And there's so much that is in appeals right now, but these appeal decisions generally take years, not months. So we're stuck yet again. And many attorneys I've interviewed believe settling this case is the only realistic way to end it, especially after Khalid Sheikh Mohammed's confession was tossed out just last month. Here is a former government attorney named Ian Moss who's worked on Guantanamo issues for years. That should tell us something, right?

9:47That the best evidence that the government believes it has is no longer available. A plea agreement is the way out of that. Sasha, when people think Guantanamo Bay, I think they think of these specific defendants. They're not the only ones there, though, right? Remind us who else is there. Right. At its height, Guantanamo had almost 800 prisoners. Now it's down to 15 men. Of those, seven are facing charges, including the September 11th defendants. Two have been convicted. The other six are known as forever prisoners. They've been held there for years without any charges filed against them. Half of the forever prisoners are cleared for release and still aren't being let go.

10:24And that lawyer we just heard from, Ian Moss, finds that outrageous. Is this who we are, that we just continue to hold six men without charge or trial indefinitely? Like, what are we doing to address that piece of it? He told me nothing seems to be happening within the government to address that because the Trump administration doesn't seem interested in letting those men go. Now, previous administrations did negotiate with other countries to take prisoners at Gitmo cleared for release. But there is no sign that those negotiations are happening now. So the men are stuck there. Is there on paper at least a trial date for this 9-11 case?

11:00Yes, there was a date set by a Guantanamo judge just last month. It's June 2028. But that could easily get delayed again, especially with so many legal issues still pending. But if it does happen, I hope to be there covering it. That is NPR's Sasha Pfeiffer, my co-host this week, and also an NPR correspondent covering Guantanamo. Sasha, thank you so much. You're welcome.

11:22This episode was produced by Connor Donovan, Michelle Aslam, and Karen Zamora, with audio engineering by Hannah Glovna. Our director is Jonas Adams. It was edited by Sarah Handel and Tinbeat Ermias. Our interim executive producer is Courtney Dorning. Before we go, a quick thank you to our Consider This Plus listeners who support the show. Your contribution makes it possible for NPR journalists all around the world to do their jobs. Supporters also get to hear every episode in even less time with no sponsor messages. You can learn more at plus.npr.org.

11:58It's Consider This from NPR. I'm Scott Detrow. I haven't seen my son since 2012. This is Deborah Tice. The disappearance of her son, Austin, is one of the biggest missing person cases in the world. What do you want from me? I should solve the mystery. I know that my son is somewhere alive. Listen to Where Is Austin Tice from NPR's Embedded and BBC Radio 4 on the NPR app or wherever you get your podcasts. This is Terry Gross, host of Fresh Air. I interviewed feminist icon Gloria Steinem several times over the years and we've compiled a special episode to celebrate her life and legacy. Women become ourselves after 50.

12:45we drop a lot of baggage and really become much more our true selves. Find it on the NPR app or wherever you listen to Fresh Air.