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

WASHINGTON — A disagreement within the Ministry of Defence over how the accused mastermind behind the murder should be brought to justice September 11 attacks and two others have things got mixed up and tension arose between the desire of some victims’ families to see a final legal settlement and the significant obstacles that could make that impossible.

Defense attorneys and some legal experts blame many of the endless delays on what they call the “original sin” that haunts military prosecutions: the illegal torture that Khalid Sheikh Mohammed and his co-defendants were subjected to CIA custody. That years of abuse has thrown the case into disarray, leaving lawyers two decades later to battle out legal issues in the now often forgotten military courtrooms at the U.S. base in Guantanamo Bay, Cuba.

An approved plea agreement that spared Muhammad and two co-defendants from the death penalty appeared to have cleared those hurdles and brought the cases to a close. But after criticism of the deal from some family members and Republican lawmakers, Defense Secretary Lloyd Austin on August 2 revoked the agreement signed by the official he had appointed.

Austin later said he believed Americans deserved a chance to see the trials. Sabrina Singh, a deputy Pentagon spokeswoman, said Friday that the case “will continue to move forward with the pretrial process as it has.”

At the request of a CIA spokesperson, it was said that “the CIA detention and interrogation program ended in 2009.”

The events reflect the gap between the desire of many to see the defendants in their death penalty cases convicted and punished and the view of many experts that the legal hurdles created by torture, disagreements over evidence and other extraordinary government measures make it unrealistic to expect a conclusion in the near future.

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

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

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

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

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

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

“That’s blood on the hands of the Bush administration and that’s blood on the hands of the CIA,” said Eagleson, the president of 9/11 Justice, a victims’ advocacy group. “That has nothing to do with us, and I think it’s worth doing something about.”

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

The torture in CIA custody “is a stain on the moral fiber of America; the treatment of Mr. Khan at the hands of U.S. personnel should be a source of shame to the U.S. government,” the agents wrote to the judge.

After more than a decade of preliminary hearings on the admissibility of torture-tainted evidence and other significant legal challenges, the 9/11 case “may be further removed from trial than it was when the charges were filed,” Dixon said. “And the reason for that is because everything in this case is so tainted by torture.”

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

A fourth suspect, Ammar al-Baluchi, did not agree to the deal and is the only one in preliminary hearings, while the others are challenging Austin’s decision. The military judge at Guantanamo said the fifth defendant of 9/11, Ramzi bin al-Shibh, mentally unfit last year after an Army medical panel diagnosed him with post-traumatic stress disorder and psychosis following his torture and solitary confinement in CIA custody.

The abuses suffered by 9/11 suspects and other detainees in CIA custody began in the stated interest of getting urgent information to ward off further attacks. Critics question whether what the George W. Bush administration called “enhanced interrogation techniques” ever yielded information that prevented attacks.

They also attribute much of the delays to the administration’s decision to use World War II-era laws to set up special military commissions to try foreign suspects.

In 2009, then-Attorney General Eric Holder announced plans to bring Mohammed and the four others to trial in New York City.

Those plans were blocked and eventually shelved after opposition from members of Congress who imposed restrictions on the transfer of prisoners to U.S. soil and from New York politicians who feared a trial would require prohibitively expensive security and burden neighborhoods recovering from the attacks.

Other major challenges have mounted for the succession of four judges rotated through Guantanamo. If the 9/11 cases ever clear the hurdles of trial, verdicts and sentences, the U.S. Court of Appeals for the District of Columbia Circuit will likely hear many of the issues as part of potential death penalty appeals.

The issues include the CIA’s destruction of interrogation videos, whether the destruction of Austin’s plea agreement constituted unlawful interference, and whether the men’s torture affected later non-forceful interrogations by “clean teams” of FBI agents.

Eugene R. Fidell, a professor of military justice at Yale Law School, says the impact of torture on the case raises questions about whether the death penalty would survive review in a federal court.

“I’m not a supporter of these defendants. I think the crimes they’re accused of are horrible,” Fidell said. “But when it comes to the administration of justice, there are a lot of problems here. And they just seem to continue.”

While the relatives of some victims have made it clear that they want to execute Mohammed and the others, others have called the military commissions a parody that must stop.

Elizabeth Miller, who was 6 when her father, Douglas, a firefighter, was killed in the World Trade Center, leads a group of 250 family members who oppose the death penalty. This month, Miller signed up through a government portal provided as part of the plea deal to send her many questions for Muhammad, including whether he feels remorse. Austin’s reversal of the plea deal put that search for answers on hold.

Sally Regenhard, co-founder of another group representing firefighters’ families, urged that the prosecution be moved to a federal court in Manhattan, just a few blocks from “the scene of the crime.”

“Put it on the fast track and stop the years from passing by,” she said. “How many more parents have to die knowing they never got justice for the murder of their child?”

__

Neumeister reported from New York