With plea deals canceled, what happens next with the Guantanamo 9/11 trials?

0:00On the morning of September 11, 2001, the United States was shaken. An apparent terrorist attack. An aircraft crashed near the Pentagon, just outside of Washington, D.C., in northern Virginia, about an hour after those attacks in New York. That night, in a primetime Oval Office address, then-President George W. Bush promised retaliation. 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. By 2006, the top suspects were in U.S. custody, and one place became synonymous with America's quest for justice.

0:42So I'm announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shib, and 11 other terrorists in CIA custody had been transferred to the United States Naval Base at Guantanamo Bay. Over the years, nearly 800 suspected terrorists have been held at Guantanamo. Most were released without being criminally charged. Now only 15 prisoners remain, including five men accused of helping orchestrate the 9-11 attacks. Among them is the alleged ringleader, Khalid Sheikh Mohammed. The U.S. government wants to try them and put them to death. But decades later, there's still been no trial. The fact of torture is at the heart of what's delaying these trials.

1:29That's Terry Rockefeller, whose only sibling, her younger sister Laura, died in the 9-11 attacks. For the people who think the torture is in the past, they don't realize that it's coming up over and over and over again. they don't realize how alive the issue remains. She's referring to the fact that the 9-11 defendants were tortured in secret overseas CIA prisons called black sites. That's created huge legal problems and fights over access to classified material. So for Rockefeller, trying to take the 9-11 case to trial feels like an exercise in futility. Sisyphus, pushing the boulder up the hill, just getting so close and then having to take so many steps backwards again.

2:17So she was relieved, even elated, when she learned that the government had reached plea deals with three of the 9-11 defendants last summer. Those deals would let them plead guilty and spend up to life in prison without parole instead of facing a death penalty trial. I thought it would put an end to the totally failed military commission system. But former U.S. Defense Secretary Lloyd Austin opposed the plea deals and tried to cancel them. And earlier this month, a federal appeals court sided with Secretary Austin and retracted the deals. That was reason for celebration for another 9-11 family member, Brett Eagleson.

2:56He lost his father, John, that day. We want a trial. We want to put these individuals on a stand. We want the public to see it, and we want the media to see everything these individuals have to say. But Karen Greenberg is less optimistic. She's director of the Center on National Security at Fordham University Law School. She wonders if Guantanamo's military prison will remain open indefinitely, and whether the saga of the 9-11 case will stay unresolved as the defendants begin dying of illness or old age. I now cannot see a path forward for closure. and this is the first time I've really felt this kind of, you know, it's not going to happen, ever.

3:36Consider this. After years of legal back and forth, the 9-11 case at Guantanamo was on the cusp of a resolution with those plea deals. Now that they've been thrown out, what's next? After the break, I put that question to a legal scholar who's been following the case since it began.

3:58From NPR, I'm Sasha Pfeiffer.

4:09It's Consider This from NPR. The September 11, 2001 terror attacks happened almost a quarter century ago, but the men charged with orchestrating them have still not gone to trial. They've been held in Guantanamo Bay, Cuba, for more than two decades, and chances are increasing that they may eventually die there without ever being convicted. This month, a major new development happened in the case. So we've asked Georgetown University law professor Steve Loddick to talk with us about whether that can make a trial more or less likely. He's been tracking the 9-11 case since its inception. Steve, welcome.

4:44Thanks, Sasha. Great to be with you. The big development is that the plea deals reached with the 9-11 defendants last summer, including the alleged ringleader Khalid Sheikh Mohammed, have been canceled. Those deals would have let them avoid a death penalty trial by pleading guilty and serving up to life in prison without parole. First, Steve, could you give us your thoughts on those plea deals being called off? Sure. I mean, I think, Sasha, it's an enormously important development, I think, in two different respects. The first is, you know, I think for a long time, a lot of folks who are both skeptical of the prosecutions and supportive of them had really viewed plea deals as the most expedient, the most efficient way to actually try to bring some degree of closure to this, you know, long running, highly emotionally charged case.

5:32Obviously, that now, you know, puts the kibosh on that. But second, the way in which the plea deals were called off with the convening authority, General Susan Escalier, agreeing to them only to be overruled by former General Lloyd Austin, I think Sasha's going to create even more delay going forward because that's going to provoke litigation all its own. And we should note, by the way, that briefly the convening authority is the technical term really for the person that oversees the military court down in Guantanamo. That's right. And so, you know, it's not just that the plea deals were called off, Sasha, it's that they were called off in a way that is itself going to create more litigation, both in the military commissions themselves and before the federal appeals court, the D.C.

6:16Circuit, potentially even the Supreme Court. As you mentioned, this case has been caught in a cycle of what are called pretrial hearings for years. The case is widely viewed as extremely dysfunctional. So if the plea deals remain canceled, what do you think happens next? We really go back to pretrial hearings for a trial that seems doubtful may ever happen? I think we do. And, you know, I think it's worth saying the quiet part out loud. Part of why this whole process has been so involved, Sasha, is because, as you know, these are capital charges. And the federal government from the start across administrations of both parties has been adamant that it believes it should be able to obtain the death penalty for the defendants in these cases.

6:59The sort of the quick and dirty criminal procedure law is that capital cases have to check a lot more boxes than non-capital cases. And so the longer that these cases remain capital cases, the longer that we're going to have years of additional pretrial litigation, of evidentiary disputes, of fights over who can testify and what can they testify about. And that's, again, going back to part of why the plea deals, I think, were seen by many as such a positive step forward because the government was willing, at least in the deals that General Escalier entered into, to give up the death penalty in exchange for the defendant's pleading guilty that could have short-circuited this entire process.

7:45Steve, I want to play you a piece of tape from a 9-11 family member I spoke with last week. Her name is Liz Miller. Her dad died on September 11th. She supports the plea deals. And Liz told me this. I'm really feeling very frustrated. And I've reached a point where, like, I'm losing my decorum, in a sense, because the main theme is waiting, waiting, waiting, waiting. And I'm really not sure how this is going to end, if it's ever going to end. Steve, how do you think this case ends? Sasha, I wish I knew. I mean, I think, you know, the plea deals were, gosh, going back 10 or 15 years now, I think what a lot of folks had thought would be the quickest way out of this case.

8:26Without plea deals, without plea deals now, without plea deals in the future, the complication that is just, I think, ultimately unavoidable, even if the defendants are ultimately convicted in a trial that seems still several years away, they'll be entitled to an appeal, an appeal that's going to raise a whole battery of messy questions that in almost every case, Sasha, will be novel questions because we haven't had military commission prosecutions in this context. I spoke with another 9-11 family member last week who has a very different view than Liz Miller, who we heard from earlier. This one is Brett Eagleson.

9:06He also lost his father on September 11th, but he opposes plea deals. And Brett told me this. We absolutely need a trial. And a plea deal, a plea bargain would have taken that right away from us. As Americans, as humans, we have the right for justice. That's how we get the truth. He used the word justice. The court in its ruling last week also used the word justice and indicated that only a trial would be true justice. What do you think justice should look like in the 9-11 case? I think that's such a hard question to answer, Sasha. Everyone's going to answer it differently. I guess what I'll just say is I would think that justice also includes at least a modicum of closure.

9:43And everyone's going to have strong opinions and strong views about what to do with the 9-11 defendants. It seems like the worst case scenario for everybody is the possibility that five years from now, ten years from now, we still won't have a final outcome. And so, yes, I think all things being equal, there are opportunities for a trial to establish facts that a plea agreement might not. But the reality here is that the government has had 15, 16, 17 years to get these cases to trial. And because of a series of both procedural and strategic and tactical decisions the government's made, it has provoked all this litigation that slowed it down, litigation that's only going to continue to slow it down.

10:27So there comes a point where comparing a plea agreement to a trial is really comparing apples to oranges because a trial is not anywhere on the horizon. And it seems to me that some folks might want even more than a trial is some closure on what really has been such a emotional and upsetting and traumatic chapter in American jurisprudence. That's Georgetown Law Professor Steve Vlodek talking about the 9-11 case at Guantanamo, Cuba. Steve, thank you. Thank you.

11:03This episode was produced by Gabriel Sanchez. It was edited by Tin Beat Hermes. Our executive producer is Sammy Yenigan. It's Consider This from NPR. I'm Sasha Pfeiffer.