WASHINGTON (AP) — A disagreement within the U.S. Defense Department over how to try the suspected mastermind of the Sept. 11 attacks and two others has roiled the cases and brought tensions to the surface between the desire of some victims’ families for a final legal reckoning and the significant obstacles that may make that impossible.
Defense attorneys and some legal experts attribute many of the interminable delays to the torture Khalid Sheikh Mohammed and his co-defendants were subjected to while in CIA custody. Those years-long incidents stalled the case, and lawyers are now battling legal issues two decades later in the now-forgotten military courtrooms of the U.S. military base at Guantanamo Bay, Cuba.
An approved deal that spared Mohammed and two co-defendants from the death penalty seemed to clear those hurdles and bring the cases closer to closure. But after some family members and Republican lawmakers criticized the deal, Defense Secretary Lloyd Austin on August 2 rescinded the deal signed by the official he appointed.
Austin later said he believed Americans deserved the opportunity to go through the trials. Deputy Pentagon spokeswoman Sabrina Singh said Friday the case would “continue as before with pretrial proceedings through to trial.”
Asked for comment, a CIA spokesman said that “the CIA’s detention and interrogation program ended in 2009.”
The events reflect the discrepancy between the desire of many to see the defendants in the death penalty trials convicted and the view of many experts that it is unrealistic to expect a conclusion to the trials in the near future, given the legal obstacles posed by torture, disputes over evidence and other extraordinary measures taken by the government.
Relatives of some of the nearly 3,000 people who died in 2001 when al-Qaeda terrorists flew four hijacked planes into the World Trade Center and the Pentagon and a third plane was shot down by heroic passengers who overpowered the hijackers and crashed it in a Pennsylvania field had different expectations about the outcome of the prosecution. But all are deeply frustrated with the way the case has been handled so far.
Some said they still wanted the death penalty, even though they knew legal complications could make it impossible.
“They’ve been telling us that for years,” said Terry Strada, head of the group 9/11 Families United and one of the most vocal family advocates.
Strada said she was still prepared to wait years for justice and “a punishment that fits the crime. And that would be the death penalty.”
Brett Eagleson, whose father Bruce was one of the victims of the World Trade Center, said families should not suffer the consequences of government failure.
“If at the end of the day they can’t prosecute or convict them, the blood is not on our hands because all the evidence they obtained was illegal. That’s not our problem,” he said.
“This is blood on the hands of the Bush administration and this is blood on the hands of the CIA,” said Eagleson, president of 9/11 Justice, a victims’ advocacy group. “This has nothing to do with us, and I think it’s worth spending money here.”
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 eight members of a military officer panel serving as jurors in the Guantanamo trial of Majid Khan, a former al-Qaeda courier whom Dixon represented, surprised the court by asking for clemency for him after hearing his account of the abuses.
The torture in CIA custody “is a stain on American morality; the treatment of Mr. Khan by U.S. personnel should be a disgrace to the U.S. government,” the officials wrote to the judge.
After more than a decade of pretrial hearings over the admissibility of torture-tainted evidence and other major legal challenges, the 9/11 case “may be further from trial than it was when the charges were filed,” Dixon said. “And the reason for that is because everything about this case is so steeped in torture.”
Mohammed and two co-defendants, Walid bin Attash and Mustafa al-Hawsawi, had agreed to a deal that would have required them to answer questions from the victims’ relatives about the attack.
Eugene R. Fidell, who teaches military law at Yale Law School, says the impact of torture on the case raises doubts about whether a death penalty would withstand review in federal court.
“I am not an attorney for these defendants. I think the crimes they are accused of are horrific,” Fidell said. “But as far as the administration of justice goes, there are many problems here. And it seems like they are continuing.”
