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khalid sheikh mohammed
Guantánamo: the Forever Mistake
Once you violate both fair treatment of prisoners and the basic principles of law, finding an unchallenged resolution to such cases is essentially inconceivable.
Jan 31, 2025
On January 10, one day before the 23rd anniversary of its opening, a much-anticipated hearing was set to take place at the Guantánamo Bay Detention Facility on the island of Cuba. After nearly 17 years of pretrial litigation, the prosecution of Khalid Sheikh Mohammed, or (KSM), the “mastermind” of the devastating attacks of September 11, 2001, seemed poised to achieve its ever-elusive goal of bringing his case to a conclusion. After three years of negotiations, the Pentagon had finally arranged a plea deal in the most significant case at Guantánamo. Along with two others accused of conspiring in the attacks of 9/11, KSM had agreed to plead guilty in exchange for the government replacing the death penalty with a life sentence.
After more than 50 pre-trial hearings and other related proceedings, Americans–and the victims’ families—would finally see closure for those three individuals who stood at the center of this country’s attempt to reckon legally with the 9/11 attacks.
More than 23 years after the 9/11 attacks, here we are in the very same place we’ve been for endless years—on pause again, despite the endless charade of forward steps that go nowhere.
Because of the fact that the defendants had been tortured at notorious CIA “black sites” before arriving at Guantánamo, the case had long been endlessly stalled. After all, so much of the evidence against them came from torture confessions. As it happens, such evidence is not admissible in court under U.S. or international law, or even under the rules of Guantánamo’s military commissions. For obvious reasons, it’s considered tainted information, “the fruit of the poisonous tree,” and so inadmissible in court. Although military commission prosecutors tried repeatedly over the years to find ways to introduce that all too tainted evidence at trial, attempts to do so failed time and again, repeatedly pushing potential trial dates years into the future. As a recently compiled Center on National Security chart shows, the forever delays in those hearings led to calendars of such length as to defy comprehension. In Khalid Sheikh Mohammed’s case, for example, such delays have so far amounted to 870.7 weeks.
With the plea deal now set to come before Judge Matthew McCall, who had agreed to delay his retirement in an effort to see this case to its conclusion, attorneys, journalists, and victims’ family members boarded planes, preparing to witness the longed-for conclusion to a case that had seemed endless. Perhaps you won’t be surprised to learn, however, that the hearing never took place. Delay was again the name of the game. As it turned out, from the moment the plea deal was announced, it became the centerpiece of an intense battle launched by then-Secretary of Defense Lloyd Austin.
What Happened
Two days after the August 2024 announcement of the plea deal by the “convening authority,” Brigadier General (Ret.) Susan Escallier, the Pentagon official in charge of the military commissions at Guantánamo Bay, Austin summarily overruled her, revoking the plea deal with little explanation and leaving experts and observers alike confused and disappointed. Had the secretary of defense not been consulted on the plea arrangement? That seemed unlikely. Had political pressure caused him to take such a drastic act? If so, then perhaps after the election he would change his mind and restore it. No such luck.
Whatever Austin’s motivation, Judge McCall refused to take “no” for an answer, declaring his revocation invalid.
McCall made it clear, instead, that he was moving forward. As the judge explained, in the memo that Austin had long ago issued appointing Escallier, he had attested to her independent authority. “Ms. Escallier shall exercise her independent legal discretion with regard to judicial acts and other duties of the Convening Authority.” But even as McCall prepared to go forward, Austin appealed to the Court of Military Commissions Review, asking it to rule that he did indeed have the authority to revoke the plea deal. However, that court then ruled that the secretary had improperly rescinded the deal after it had taken effect.
Still, he refused to give up, seeking help elsewhere. And he found it. On the eve of the scheduled hearing, the Department of Justice filed papers asking the D.C. Circuit Court to prohibit the Gitmo court from moving ahead and to stay proceedings while it contemplated the decision. Those who had flown to Guantánamo then returned home, and a new hearing was set for January 28th at the D.C. Circuit Court. At issue was both Austin’s authority to take over the plea deal and whether he had the right to withdraw from it, as lawyers argue that the dependents had already started performing their part of the deal. Of course, in the second age of Trump, it is no longer Austin but Secretary of Defense Pete Hegseth who will decide what happens next.
So, more than 23 years after the 9/11 attacks, here we are in the very same place we’ve been for endless years—on pause again, despite the endless charade of forward steps that go nowhere.
The Mirage of the Military Commissions
At this point, it’s worth asking whether the resolution of those cases by trial was ever a priority—or even a realistic goal. A look back over the course of the military commissions and the 9/11 case suggests some answers.
The Guantánamo detention facility was set up by a presidential military order issued on November 13, 2001. It authorized the detention of war-on-terror captives and mentioned future trials. “It is necessary for individuals subject to this order… to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.” Accordingly, the commander of the naval base at Guantánamo spent the early months of the detention operation scouring the base itself for a suitable facility in which to hold such trials. He was surprised when no one at the Pentagon approached him about the need for such a building.
So here we stand, with Donald Trump back in the White House, awaiting what this will mean for the future of the forever prison.
Fast forward six years, a year after those “high-value detainees” already tortured at CIA black sites were brought to Guantánamo. As NBC’s Bob Windrem later reported, an “Expeditionary Legal Complex was built in 2007 in the expectation it would be used for the trial of terrorists accused of murdering nearly 3,000 people with twin attacks on New York and Washington on September 11, 2001.” In 2008, the 9/11 defendants were charged. And last April, 17 years later, the Pentagon opened a second courtroom at the cost of $4 million for other cases pending before the military tribunals. Intrepid New York Times Gitmo reporter Carol Rosenberg recently summed up the costs associated with those signs of a continuing belief that actual trial proceedings were indeed in the cards this way: “The war court proceedings have cost hundreds of millions of dollars in salaries, infrastructure, and transportation. Since 2019, the Office of Military Commissions has added two new courtroom chambers, new offices and temporary housing, more lawyers, more security personnel, and more contractors.”
On the surface, it would seem as if the commitment to holding various war-on-terror trials was perfectly real. The price tag was certainly hefty enough, as were the numerous pre-trial proceedings in the 9/11 case, as well as in other cases before the military commissions, each involving charges against those accused of committing acts of terrorism—the bombing of the U.S.S. Cole destroyer with one defendant; terror bombings in Bali, Indonesia, with three defendants; and the cases of several other individuals charged with crimes of terrorism.
Yet given the failure of significant forward movement in such cases for so long, it’s hard not to wonder just how serious the commitment to resolving them ever was and whether the construction of such expensive trial buildings was either a mirage, intended to hide the fact that the cases were destined to go nowhere, or self-deception on the part of presidents George W. Bush, Barack Obama, and Joe Biden. (Donald Trump halted the military commissions during his first term in office, leaving them in legal limbo.)
After all this time, only two cases have ever gone to trial, one of which, that of Salim Hamdan, was later overturned. In the other, Ali Hamza al-Bahlul was convicted on three counts, two of which were eventually overturned. (At present, Mr. Bahlul is serving a life sentence at Gitmo, having arrived on its opening day 23 years ago.)
Meanwhile, there have been a grand total of nine plea deals over all these years. Of those, one convicted detainee is serving out a sentence at Guantánamo that ends in 2032, two convictions have been overturned, and two remain on appeal—a paltry record at best, especially given the grimness of those acts of terror. For all of the time, effort, and money, not to mention emotional distress, the results have been appallingly minimal.
Biden and Gitmo
To his credit, President Joe Biden, who inherited a Guantánamo with only 40 detainees left out of a total population that once stood at 790, seemed determined to make progress both in the military commissions and in releasing some of the remaining “forever prisoners” (a term originally coined by Times reporter Rosenberg to describe those living in the legal limbo of indefinite detention, neither charged nor released). Biden provided Gitmo watchers (like me) with some hope that the prison, distinctly offshore of American justice, would actually close someday.
During Biden’s years in office, the population was reduced to 15 men—six forever prisoners and nine still part of the military commissions (two of whom are already convicted). Eleven of the Biden releases, consisting of Yemenis sent to Oman, occurred amid the battle over Khalid Sheikh Mohammed’s plea deal, as if he were whispering to us that we needn’t worry, the road to closure was still available. Yet even that set of transfers suffered from the same sort of one-step-forward-two steps-back shuffle that’s been the essence of Gitmo’s history. The Oman arrangement had originally been planned for October 2023, only to be put on pause once the war in Gaza erupted. One of the men released had been cleared since 2010, only to await arrangements made two presidencies later.
The Biden administration unfortunately never released the last prisoners held without charge or brought the accused to trial. Even in these final moments of his presidency, when he was arguably free to do whatever he wanted, including closing the prison, he chose instead, by virtue of his administration putting the deal on hold, to halt forward progress, leaving us to wonder why.
So here we stand, with Donald Trump back in the White House, awaiting what this will mean for the future of the forever prison.
Once You Break It, You Can Never Really Fix It
Sometimes, when it comes to Gitmo, it almost seems as if forces beyond the capacity of mere mortals are at play. No matter what promises are made, no matter what hope-inspiring acts are taken, no matter what progress occurs, the prison seems to have a life of its own, aided and abetted by those who continue to mount obstacles to any significant steps forward.
Of course, the biggest of the lessons learned should have been to honor the laws, both domestic and international, forbidding torture. Had the United States not authorized a program of what was euphemistically referred to by the administration of President George W. Bush as “enhanced interrogation techniques,” including beatings, waterboarding, sleep deprivation, sexual humiliation, sensory bombardment, and all too much more, those trials could have been held in a timely fashion and in federal court on the mainland.
As President Barack Obama’s attorney general, Eric Holder, had wanted, the federal courts would have been capable of handling such cases without using “evidence” produced by torture. In fact, one Guantánamo detainee, Ahmed Ghailani, was indeed transferred to the United States for trial in federal court and, though he was acquitted on 284 of 285 charges, he was found guilty on one count and sentenced to life in federal prison. Still, the hundreds of acquittals in his case chased away the idea of trying the remaining Guantánamo defendants in federal court.
From all of this, there’s a basic lesson to be learned: Once you violate both fair treatment of prisoners and the basic principles of law, finding an unchallenged resolution to such cases is essentially inconceivable.
In other words, once you break it, you can never really fix it.
Today, that long, soul-crushing, legally abhorrent story stands, at a far greater cost than we might once have imagined, where it has always stood—as a mistake that never should have happened and that, once made, never found a leader able to muster the courage to end it.
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After Plea Deals Revived, Biden Urged to Transfer Uncharged Men at Guantánamo
Rights advocates want the president to fulfill his "long-standing commitment to turn the page on the 9/11 era by closing this shameful site of torture and indefinite detention."
Nov 07, 2024
U.S. President Joe Biden on Thursday faced pressure from legal groups to accept a military judge's revival of plea deals for three alleged plotters of the September 11, 2001 terrorist attacks and to transfer 19 uncharged men out of the American prison in Guantánamo Bay, Cuba.
Brig. Gen. Susan Escallier, the convening authority for the legally dubious Guantánamo Bay military commissions, this summer reached the controversial deals under which Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawi agreed to spend the rest of their lives in prison to avoid execution.
U.S. Defense Secretary Lloyd Austin swiftly withdrew the agreements, sparking criticism from some victims' families and legal experts. In a 29-page ruling on Wednesday, the judge, Col. Matthew N. McCall, wrote that the Pentagon chief "did not have the authority to do what he did." Thus, the pretrial agreements "remain valid and are enforceable," he wrote, and plea hearings should be scheduled.
It is not yet clear how the Pentagon will proceed, as its press secretary, Maj. Gen. Patrick Ryder, only toldThe New York Times that "we are reviewing the decision and don't have anything further at this time." However, legal organizations want the Biden administration to embrace the ruling.
ACLU executive director Anthony D. Romero, whose group represents Mohammed, said in a Thursday statement that "McCall rightly recognizes that Defense Secretary Austin stepped out of bounds" and "we are finally back at the only practical solution after nearly two decades of litigation."
"The government's decision to settle for life imprisonment instead of seeking the death penalty in the case of Khalid Sheikh Mohammed was always the right call," Romero continued. "For too long, the U.S. has repeatedly defended its use of torture and unconstitutional military tribunals at Guantánamo Bay. As a nation, we must move forward with the plea process and sentencing hearing that is intended to give victim family members answers to their questions. They deserve transparency and finality about the events that claimed their loved ones."
"This plea agreement further underscores the fact that the death penalty is out of step with the fundamental values of our democratic system. It is inhumane, inequitable, and unjust," he added. "We also urge the U.S. government to quickly relocate the men cleared for transfer, and finally end all indefinite detentions and unfair trials at Guantánamo."
The Center for Constitutional Rights (CCR)—which represents two of the 19 uncharged men at the facility infamous for torture—also put out a Thursday statement pressuring the administration to accept the judge's decision and focus on transfers.
"The Biden administration should not appeal this ruling because, after more than 20 years of litigation and uncertainty for victims' families, plea deals are the only responsible way to resolve the 9/11 case," CCR argued. "The president must instead use this opportunity to transfer the remaining 19 uncharged men out of Guantánamo, 16 of whom have been approved for transfer by all relevant agencies based on a unanimous determination that they pose no security threat, including our clients Guled Hassan Duran and Sharqawi al Hajj."
"These two steps are essential to fulfilling Biden's long-standing commitment to turn the page on the 9/11 era by closing this shameful site of torture and indefinite detention," the group added.
Biden's time to make any decisions regarding Guantánamo and the men imprisoned there is dwindling. After beating Democratic Vice President Kamala Harris on Tuesday, former President Donald Trump is set to return to the White House in January, shortly after what would be the 23rd anniversary of Guantánamo's opening.
The U.S. prison was launched in January 2002 under then-President George W. Bush, who responded to the 9/11 attacks with a so-called global War on Terror. Biden has so far failed to close Guantánamo, following in the footsteps of former President Barack Obama. Trump, during his first term, took action to keep it open.
As Lawdrawgonreported:
The plea agreements for Mohammad and al-Hawsawi contained provisions that removed the death penalty from the case in the event the government withdrew from the agreements. Sources said that the penalty provision should render the case noncapital, even if Austin was found to have acted lawfully.
The penalty clause was negotiated in the event that a future Trump administration tried to kill the deals, individuals familiar with the negotiations said.
In anticipation of Trump's return to power early next year, Amnesty International is urging Biden to take "six actions before his legacy is sealed for the history books." The final item calls on the outgoing president to "transfer all detainees cleared for release or not charged with crimes to countries where their human rights will be respected, halting the unfair military commissions and fairly resolving the pending cases, and close the Guantánamo prison once and for all."
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'Corrupt and Rigged': 9/11 Defense Lawyer Say Austin Broke Rules by Blocking Plea Deals
"We have had an unprecedented act by a government official to pull back what was a valid agreement," said an attorney representing tortured 9/11 suspects imprisoned at Guantánamo Bay.
Aug 07, 2024
Attorneys representing alleged 9/11 planners imprisoned at Guantánamo Bay argued Wednesday that U.S. Defense Secretary Lloyd Austin's move to block plea deals for three defendants violated Pentagon rules and belied the corruption of the military commission system established during the George W. Bush administration.
"We have had an unprecedented act by a government official to pull back what was a valid agreement," Walter Ruiz, who represents defendant Mustafa al-Hawsawi, said at a hearing at Guantánamo, according toCNN.
"For us, it raises very serious questions about continuing to engage in a system that seems so obviously corrupt and rigged," Ruiz added.
Last week, the Department of Defense announced that Brig. Gen. Susan Escallier, the convening authority for the Guantánamo military commissions, "has entered into pretrial agreements" with al-Hawsawi, alleged 9/11 mastermind Khalid Sheikh Mohammed, and Walid bin Attash.
The long-anticipated agreement—under which the three men would be spared execution by pleading guilty—came amid years of stalled legal proceedings in a case complicated by the U.S.' torture of the defendants and government efforts to cover it up.
While welcomed by advocates of closing the prison and some victims' families, Escallier's move also sparked a firestorm of criticism from numerous U.S. lawmakers, 9/11 first responders, and victims' relatives.
Last Friday, Austin withdrew the plea agreements. Speaking at a press conference on Tuesday, he explained that he has "long believed that the families of the victims, our service members, and the American public deserves the opportunity to see military commission trials carried out in his case."
"I'm deeply mindful of my duty to all those whose lives were lost or changed forever on 9/11, and I fully understand that no measure of justice can ever make up for their loss," Austin added. "So this wasn't a decision that I took lightly."
Eugene Fidell, a military law professor at Yale University and co-founder of the National Institute of Military Justice, told CNN that Austin's move "was illegal."
According to the network:
One of the primary issues pointed to on Wednesday by defense counsel was a regulation laid out in the military's Manual for Military Commissions, which says the convening authority can withdraw a pretrial agreement before the accused begins "performance of promises" or if the accused does not hold up their end of the deal. Gary Sowards, a defense attorney for Mohammad, said in court that Austin did not have authority under that regulation because his client had "begun very important, substantive, specific performance.'"
Sowards acknowledged that motions for discovery on the issue of potential unlawful influence by Austin, which would "seek to explore how he was coerced and influenced," could take a year or two to litigate. But the issue of the Manual for Military Commissions regulation is "a simple reading of about 12 lines of text," he said, and a decision on it should be able to be expedited.
Prosecutor Clayton Trivett Jr. told the commission Wednesday that the government needed to "work through the issues raised in these motions" so that the prosecution's position can be "fully articulated."
Sowards retorted, "'We want to consult with people'—that sounds like, 'We want to get our stories together.'"
Some legal experts doubted whether the government would ever be able to try, let alone convict, the 9/11 suspects. Military judges and prosecutors have cited defendants' torture in declining to proceed with cases against them. Many men and boys were tortured at CIA "black sites," Guantánamo, and military prisons including Abu Ghraib. At least dozens of detainees died.
Wells Dixon, a lawyer with the Center for Constitutional Rights who represented convicted terrorist Majid Khan, told CNN that the prosecution's unwillingness "to allow evidence about the defendants' torture and abuse to be aired in court" will make it extremely difficult to secure death sentences for the men.
"If Secretary Austin says that a 9/11 case is going to proceed to trial, and a verdict, and possibly a sentencing, then he is either hopelessly ill-informed or is lying to victims' family members," he added.
Accusations of military commission corruption go back decades.
In 2004, three military prosecutors—Maj. Robert Preston, Capt. John Carr, and Capt. Carrie Wolf—requested transfers from the commissions after concluding they were rigged.
"They were told by the chief prosecutor at the time that they didn't need evidence to get convictions," Clive Stafford Smith, an attorney who represented more than 70 Guantánamo detainees, toldThe Nation in 2008.
That year, former Guantánamo chief prosecutor Col. Morris Davis said that then-Pentagon General Counsel William Haynes told him that "we can't have acquittals."
Atlantic staff writer Graeme Wood asserted this week that "there is a way to clean up this mess."
"Now that Austin has assumed the power of the convening authority, he can restore the agreement he tore up on Friday—to reverse the reversal and bring these sordid proceedings to the end they were until recently already destined for," he wrote. "If he instead wants to extend the life of the commissions, slouching toward a trial that will never happen, then the pointless sacrifice of money and time will continue."
"For the families in search of finality, each minute of delay is a minute stolen, and for the defendants, each is a minute gained," Wood added. "The defendants have already cheated the hangman. The best way to end their run is to take that bitter deal, and bring these commissions to a well-deserved end."
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