The Unfinished Business of Justice — 25 Years After September 11

A quarter of a century after hijacked airliners tore through the World Trade Center and the Pentagon, a military judge at Guantanamo Bay has finally put a number on the calendar: June 5, 2028. That is when Khalid Sheikh Mohammed, the self-described mastermind of the September 11 attacks, is now scheduled to stand trial alongside three co-defendants.There has been no guarantee the date will hold up any better than the ones that came before it over the past two decades. Why has it taken 25 years for a prosecution over an attack that killed nearly 3,000 people to reach even a scheduled trial?In an 11-page ruling, Lt. Col. Michael Schrama, the judge presiding over the case, rejected the prosecution’s request to begin the case in January 2027. Instead, he extended both sides’ deadlines by 18 months.“A realistic trial date must account for the hearing and resolution of pretrial evidentiary and compliance motions,” Mr. Schrama wrote.Mr. Mohammed, a Pakistani national believed to be 61, will be tried with Walid bin Attash, a Yemeni national believed to be 47; Ali Abdul Aziz Ali, a Pakistani national in his late 40s also known as Ammar al-Baluchi; and Mustafa Ahmed al-Hawsawi, a 58-year-old Saudi national. All four men are accused of helping plan an attack that killed nearly 3,000 people.For a case first arraigned in 2008, a trial in 2028 means two full decades will have passed between formal charges and a verdict, if one ever comes. Mr. Mohammed was captured in Rawalpindi, Pakistan, in March 2003 and transferred to Guantanamo in 2006 after years in secret Central Intelligence Agency custody. He has now spent more than two decades in American detention without ever facing a jury.For those who once worked inside the intelligence apparatus that captured him, the delay traces back to how he was interrogated, and to the political fallout that followed.“The use of the Enhanced Interrogation Techniques that were approved by Bush Administration lawyers for the CIA to use, and which came under much criticism by political enemies of the Administration, may well have played a part in the delays,” a retired United States government intelligence specialist, Del Wilber, tells The New York Sun.“While certainly not as they were portrayed by the media, the EIT’s were indeed controversial. Intelligence work is often not pretty. It’s gritty, hard-edged, and can be coarse and harsh at times. Protecting Americans from the likes of Khalid Sheik Mohammed isn’t an afternoon tea party; it’s a full-time job, and certain aspects could be revealed in a trial that our adversaries would certainly distort and use against us.”The techniques at issue were laid bare in a 2014 Senate Intelligence Committee report, which found the CIA waterboarded Mr. Mohammed 183 times, among other methods critics have called torture. Defenders have called it a grim necessity of wartime intelligence work.That divide has since hardened into open political warfare. When a 2024 plea deal offered Mr. Mohammed life without parole in exchange for a guilty plea, Mr. Trump’s running mate, Mr. Vance, called it a “sweetheart deal with 9/11 terrorists.” Other Republicans deemed it “unconscionable” and a “slap in the face” to victims’ families.The case was killed within 48 hours by then-Defense Secretary Lloyd Austin, resulting in another two-year appeals process with no trial date.Even with a date now on the calendar, the families of nearly 3,000 victims are still waiting for an accounting, which remains uncertain more than two decades after the fact.A Fifth Judge Inherits an Old CaseIn the meantime, Mr. Schrama is just the latest in a long line of military judges to take over the case since the reopening of proceedings in 2012.A trial date set in 2019 for January 2021 collapsed amid the COVID-19 pandemic and fresh disputes over evidence, and proceedings resumed in 2021 only to be consumed for years by a fight over whether the men could avoid a death sentence altogether.That turnover is among the case’s most underappreciated obstacles.“With the judges, some prosecutors, and most defense counsel active-duty military, these individuals have individually rotated every two or three years, which then requires time for the replacements to get up to speed on what has happened in the past,” a professor of law at Loyola Marymount University, David Glazier, tells the Sun. “This is particularly disadvantageous for the defense teams as they need to build trust with their clients but are repeatedly having those relationships ended due to military reassignments, leaving new counsel having to start from scratch.”Mr. Glazier points to an earlier decision as the deeper problem: trying the case outside the ordinary federal system in the first place.“The biggest reason for the KSM trial delays stems from the misguided decision by the Bush administration to commit these trials to novel military commissions rather than holding them in ordinary federal courts,” he tells the Sun, pointing to the civilian conviction of embassy bomber Ahmed Ghailani as proof that ordinary courts can deliver justice efficiently in a way the military commissions never have.An American jury convicted Mr. Ghailani of a single conspiracy count in 2010 for his role in the 1998 truck-bomb attacks on American embassies in Kenya and Tanzania. After being acquitted of 284 other charges, including every murder count, Mr. Ghailani was sentenced to life in prison.Thus, Mr. Glazier contends that a partial verdict in an ordinary courtroom would produce a final sentence within months, something the military commissions still haven’t accomplished.Three presidents have tried and failed to shut the facility down entirely. Mr. Bush, who opened the controversial facility in 2002, later said publicly he wanted it closed. Mr. Obama signed an order on his second day in office in January 2009 giving the Pentagon a year to shutter the facility, only to see Congress bar the transfer of detainees to American prisons and leave the deadline unmet for the rest of his two terms.Mr. Biden renewed the pledge to close Guantanamo and worked to reduce its population through detainee transfers; however, he too left office with the facility and the same congressional restrictions still in place. Mr. Trump, both in his first term and since returning to office, has moved in the opposite direction, opting to keep Guantanamo open and even expand its use — which means the 9/11 case has never had anywhere else to go.A Plea Deal That Blew Up in PublicThe defendants agreed to plead guilty to all charges in July 2024 in exchange for a guarantee of life without parole, removing execution from the table. Two days later, Defense Secretary Lloyd Austin revoked the deal, claiming he alone should make that decision.A divided federal appeals court in Washington ruled in 2025, 2-1, that he had the authority to do so, voiding the plea agreements and sending the case back to trial, now scheduled for 2028.That reversal, for at least one human rights lawyer who has tracked the commissions for years, compounds a problem that predates it by two decades.“It’s unconscionable that it has taken so long to bring these cases to trial. Unconscionable, but totally predictable,” the executive director of Georgetown Law’s Human Rights Institute, Elisa Massimino, tells the Sun. “At the heart of that delay was the Bush administration’s decision to torture the defendants. That was compounded by the deeply flawed military commissions process, and the effort to convert that process into something resembling the rule of law.”Ms. Massimino is no less scathing about how the 2024 agreement itself was undone. “The decision to scrap the 2024 plea deal was a terrible mistake,” she says.The Torture Question Nobody Will AnswerBehind the scheduling disputes is a far more stubborn issue: what happened to these men before they reached Guantanamo that has put a wrench in proceedings?A 2014 Senate Intelligence Committee report found that the CIA waterboarded Mohammed 183 times. The report describes the experience as a series of near-drownings. Defense attorneys have subsequently spent more than a decade arguing that statements their clients later gave to FBI interrogators cannot be separated from years of abuse inside the CIA’s secret prison network. At the same time, prosecutors counter that the FBI interviews used standard, noncoercive techniques.Mr. Glazier views the government’s own secrecy rules as part of the design rather than an accident of caution.“The fact that many of the defendants were tortured by the government seeking to prosecute them has seriously tainted the whole process and been responsible for many of the delays as prosecution and defense battle over what is and is not admissible,” he explains. “The stringent classification rules and difficulty obtaining and making use of evidence seem largely intended to cover up evidence of CIA torture rather than facilitate getting to, and conducting, fair trials.”A key issue in that fight has been declassification: defense teams have been attempting to obtain details about the black sites and the CIA personnel responsible for them for years, arguing they cannot challenge the admissibility of their clients’ statements without knowing exactly what was done to them.On national security grounds, the government has resisted disclosure and released material only in narrow, incremental disclosures that have taken years to litigate.A dispute over what the jury and public can see has kept the case in pretrial motions for two decades more than any missed deadline.In essence, the new date guarantees nothing.“For many years the government has said these cases were always a year from trial,” Mr. Glazier continues. “So now being two years from trial should not be a reason for significant optimism.”Guantánamo’s track record justifies that skepticism. Of the roughly 780 men who have passed through the facility since it opened in January 2002, only a small handful have ever been convicted by military commission. Several of those convictions were later vacated on appeal — most notably those of Salim Hamdan and Ali Hamza al-Bahlul.Federal appeals judges concluded that the material support and solicitation charges against them were never internationally recognized war crimes, so they could not be prosecuted.As a result of that history, even a conviction in 2028 may not be final. Any verdict based on statements related to torture, or on charges that aren’t traditional war crimes, would likely be appealed.The cost of keeping the fight going is its own narrative. A 2025 analysis put Guantanamo’s total detention operations at roughly $663 million a year, or about $44 million per remaining law-of-war detainee, compared with roughly $100,000 a year to hold an inmate at a federal supermax prison.Whatever the case, the men accused of plotting the deadliest terrorist attack on American soil face a jury nearly three decades after the attack, with the families of thousands of victims still waiting for a verdict that has evaded three American presidents.

The Unfinished Business of Justice — 25 Years After September 11

The Unfinished Business of Justice — 25 Years After September 11

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