Negotiations between prosecutors and defense attorneys at Guantanamo Bay could reportedly result in guilty plea deals in which the death penalty is taken off the table for 9/11 mastermind Khalid Sheikh Mohammed and his four co-defendants. Top Republicans quickly criticized any such possibility.
In the two decades since 19 al Qaeda terrorists crashed hijacked planes into the World Trade Center buildings, the Pentagon, and a field near Shanksville, Pennsylvania, killing nearly 3,000 people, the five men said to be responsible for the planning and execution of the plot have yet to stand trial. The key question of whether confessions obtained by the FBI after their CIA custody should be admissible remains unresolved.
On Tuesday, the New York Times cited “people with knowledge of the discussions,” reporting that prosecutors have “opened talks” with lawyers for the five co-defendants at the 9/11 trial, with the outlet saying a potential negotiated plea agreement could “drop the possibility of execution.”
Clayton Trivett Jr., a primary prosecutor on the case, reportedly wrote to the defense lawyers last week to discuss “whether pretrial agreements are possible for all five cases” and to say that “putting a concerted effort focused solely on possible agreements while we are all onboard Guantanamo, where your clients and teams are present, may be our best chance of at least determining if deals can be reached.”
The Pentagon announced in December that Army Brig. Gen. Jackie L. Thompson Jr. would take over as chief defense counsel, and Army Col. George C. Kraehe took over as interim chief prosecutor in October.
PENTAGON SAYS GUANTANAMO DETAINEE KNOWN AS 20TH HIJACKER WILL BE SENT BACK TO SAUDI ARABIA
Col. Jeffrey D. Wood, a staff judge advocate for the Arkansas National Guard, has been the convening authority for the military commission’s case since 2020 and would ultimately need to approve any deals.
Ohio Republican Rep. Mike Turner, the ranking member on the House Intelligence Committee, criticized any effort to take capital punishment off the table for Khalid Sheikh Mohammed and his co-defendants.
“Khalid Sheikh Mohammed and his accomplices planned the Sept. 11 terrorist attacks [and are] responsible for the deaths of nearly 3,000 Americans,” Turner told the Washington Examiner. “It is unconscionable that military prosecutors would even entertain the idea of a plea agreement that removed the possibility of the death penalty.”
Texas Rep. Michael McCaul, the top Republican on the House Foreign Affairs Committee, posed a rhetorical question to the Washington Examiner: “If this case doesn’t justify the death penalty, what does?”
Pentagon spokesman Lt. Col. Cesar Santiago told the Washington Examiner on Thursday that “it would be inappropriate for the Department of Defense to comment on issues raised in ongoing commissions’ litigation.”
Mohammed, dubbed “KSM” and described as “the principal architect of the 9/11 attacks” in the 9/11 Commission Report, was a close ally of Osama bin Laden and was repeatedly waterboarded in numerous sessions while in U.S. custody. Mohammed is being tried alongside four co-defendants: his nephew, Ammar al Baluchi, who sent money transfers to 9/11 hijackers inside the United States; alleged hijacking trainer Walid bin Attash; 9/11 facilitator Ramzi bin Shibh; and al Qaeda money man Mustafa al Hawsawi.
Participants in the negotiations reportedly said the defense requirements for pleas begin with “removing the death penalty from the case” and that a joint list of requests was submitted to the court Monday.
Lawyers for al Baluchi told the Washington Examiner that negotiations are happening.
“Negotiated agreements are part of all criminal cases, and negotiations have taken place throughout the case,” attorney James Connell said. “This process is not unusual: the vast majority of capital cases in the United States are resolved by plea.”
Attorney Alka Pradhan said, “Negotiated agreements represent one path to ending military commissions, stopping indefinite detention at Guantanamo Bay, and providing justice.”
Harvey Rishikof, a former convening authority, was fired in 2018, when he was reportedly looking into potential plea deals for the co-defendants. A report earlier this year from a group co-chaired by him through the University of Pennsylvania concluded that “the desired outcome is most likely to be achieved by taking the death penalty charges off the table.”
Last week, the New York Times reported that Cheryl Bormann, the top lawyer for bin Attash, asked to leave the case, citing a “performance and conduct” inquiry into her by Thompson. The outlet said “the issue forced a delay in hearings that could stretch for months and provided an opening” for talks between the prosecution and defense.
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Approximately 780 total suspected terrorists are known to have been detained at Guantanamo Bay since 2002, and it is believed that 38 remain, according to the New York Times Guantanamo Docket tracker. The Pentagon said earlier in March that the so-called “20th hijacker” would be sent back to Saudi Arabia from Guantanamo Bay.
Republicans have sought to block Biden efforts to shut the facility down. Turner weighed in last week on the Biden administration’s efforts to shut Guantanamo Bay’s detention operations, calling it “outrageous” and “dangerous.”
“This is also the wrong signal coming right off the debacle in Afghanistan,” he told the Washington Examiner, adding, “It continues to show complete weakness and an inability to understand that the values of adversaries and terrorists are antithetical to the United States. They want to harm and hurt the United States, and we need to show strength.”
White House press secretary Jen Psaki said in December that Biden “absolutely remains committed to shutting down Guantanamo Bay.” Biden officials were no-shows at a Democratic-led Senate Judiciary Committee hearing that month on ending the use of the Guantanamo Bay prison.
