Pentagon Announces 'Long-Overdue' Plea Deals With Tortured 9/11 Defendants

Forced into a legal corner due to the torture of men accused of planning the September 11, 2001 attacks on the United States, the Pentagon on Wednesday announced it has reached plea agreements with three top 9/11 suspects, who will spend the rest of their lives in prison and avoid execution.

The U.S. Department of Defense said in a statement that Brig. Gen. Susan Escallier, the convening authority for the legally dubious Guantánamo Bay military commissions, "has entered into pretrial agreements" with alleged 9/11 mastermind Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawi.

Although the Pentagon statement said that "the specific terms and conditions of the pretrial agreements are not available to the public at this time," The New York Timesreported that news of the deal was revealed in a recent letter from military prosecutors to relatives of 9/11 victims.

"In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet," the letter, which was signed by Rear Adm. Aaron C. Rugh, explained.

Responding to the news, the Center for Constitutional Rights (CCR)—which has represented and advocated for Guantánamo detainees—said that "these plea agreements are a substantial step toward ending military commissions and the extralegal nightmare of Guantánamo."

"They were also inevitable because the 9/11 case was never going to be tried before a military commission," CCR continued. "The military commissions at Guantánamo have never provided justice or accountability for anyone. Rather, for the last two decades, they have provided a veneer of legal process that serves only to maintain the unacceptable status quo and cover up the torture and abuse of detainees."

"But as illustrated by the military commission cases of our clients David Hicks and Majid Khan, they have also been a way out of Guantánamo," the group added. "Ironic, because it is ultimately men like our clients Guled Duran and Sharqawi Al Hajj, who committed no offense and are approved for transfer, who remain in detention indefinitely. This has been a central, ugly truth of Guantánamo since it opened in January 2002."

The case against the plea deal trio and other 9/11 defendants—who have been imprisoned by the U.S. military for more than 20 years—was mired in pretrial delays. Defense lawyers asserted that the defendants' torture in CIA "black sites" and at Guantánamo, and the government's subsequent cover-ups, invalidated prosecution evidence against them.

The five 9/11 defendants—the three who struck plea deals plus Ammar al-Baluchi and Ramzi bin al-Shib—were all captured in Pakistan in late 2002 and early 2003 before being turned over to the United States and transferred to CIA black sites, including the notorius "Salt Pit" outside Kabul, Afghanistan, where suspected militant Gul Rahman was tortured to death in November 2002. In 2006, the five were transferred to Guantánamo Bay.

All five men were tortured. Mohammed was waterboarded 183 times and subjected to other tortures approved under the George W. Bush administration's euphemistically named "enhanced interrogation" program. Al-Hawsawi suffered a shredded rectum resulting from sodomization during so-called "rectal hydration" and has had to manually reinsert parts of his anal cavity to defecate.

In 2012, Col. James L. Pohl, then the presiding military commission judge, prohibited all testimony related to the defendants' capture, imprisonment, and torture. According to a May 2016 court filing, Pohl conspired with military prosecutors to destroy evidence in Mohammed's case.

Over the years, numerous Guantánamo prosecutors resigned over what they called a corrupt military commission system designed to guarantee convictions. In 2008, former lead prosecutor Col. Morris Davis blasted the 9/11 trials as "rigged from the start," claiming he was told by a top Bush administration lawyer that acquittals were unacceptable. At least four other military prosecutors asked to be removed from the commissions over perceived unfairness.

This isn't the first time that U.S. torture has stymied military plans to prosecute 9/11 suspects.

In 2004, then-Guantánamo prosecutor Col. Stuart Crouch—whose Marine Corps buddy initially piloted one of the planes that was hijacked and crashed into the World Trade Center on 9/11—refused to prosecute Mohamedou Ould Slahi, who allegedly helped organize the plane's hijacking, citing his torture.

Five years later, Susan J. Crawford, the top Bush administration official in charge of deciding which Guantánamo detainees to bring to trial, declared that the U.S. "tortured" Mohammed al-Qahtani, the alleged would-be 20th 9/11 hijacker, and blocked his prosecution.

More recently, in 2021, all but one member of the military jury convened to hear the case against Guantánamo detainee and alleged terrorist plotter Majid Khan recommended total clemency after the accused testified how he endured torture including rape, being hung from a ceiling beam, and being waterboarded while he was held at a CIA black site in Afghanistan.

Military prosecutors and defense lawyers had been in talks about a possible plea deal for the 9/11 suspects since at least last year. In recent years, people including U.S. Senate Judiciary Chair Dick Durbin (D-Ill.), 9/11 survivors and victims' relatives, and Ted Olsen—the former Bush solicitor-general who once defended the indefinite detention and torture of Guantánamo prisoners—have called for plea agreements and the prison's closure. However, President Joe Biden reportedly balked at the idea of sparing the defendants' lives.

While many Republican U.S. lawmakers condemned Wednesday's plea agreements as a betrayal to relatives of 9/11 victims, rights groups called the deals a big step toward justice and closure.

"This is an incredibly welcome and long-overdue step," Yumna Rizvi, a senior policy analyst at the Center for Victims of Torture, said on social media. "The Biden administration can and should #CloseGuantanamo."

Daphne Eviatar, director of the Security with Human Rights program at Amnesty International USA, said in a statement: "This is welcome news. Finally, after more than 20 years, there will be some accountability for the 9/11 attacks, and justice for the victims and survivors of those horrific crimes. We are also pleased that there is finally an outcome for at least some of the accused, who were tortured and then languished in detention without trial for more than two decades."

"This should be the beginning of the end of the Guantánamo Bay detention center," she added. "We urge the Biden administration to release the remaining detainees who have not been charged with crimes, and close the facility once and for all."

There are 19 men still imprisoned without charge in Guantánamo. Sixteen have been cleared for release, some of them for many years.