Pretrial hearings for the yet-to-start 9/11 trial at Guantanamo Bay have been canceled again as the Biden administration seeks to strike a plea deal with the al Qaeda plotters, which could take the death penalty off the table.
After more than 21 years, justice has yet to be attained in the case against the plotters of the 9/11 terrorist attacks, and nearly a year of plea negotiations and canceled hearings at Guantanamo Bay has pushed any trial back even further.
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In December 2022, the presiding military judge for the case at the island war court canceled the hearings that were slated to span from mid-January to early February 2023, and at least some defense teams want the March 2023 hearings to be postponed too.
The defense team for alleged 9/11 hijacking trainer Walid bin Attash told the court in early December 2022 that the scheduled multiweek hearings for late January and early February 2023 should be canceled, the prosecution did not object, and the presiding judge granted the cancellation.
Negotiations between prosecutors and defense attorneys at Guantanamo Bay, which began in March 2022, could reportedly result in guilty plea deals in which capital punishment would not be a possible punishment for 9/11 mastermind Khalid Sheikh Mohammed and his four co-defendants.
In the more than two decades since the terror attacks that killed nearly 3,000 people, the five men said to be responsible for the planning and execution of the plot have yet to stand trial.
As reasons for wanting the early 2023 hearings canceled, the defense team’s December 2022 motion cited “the on-going plea negotiations between Trial Counsel and the Defense that include the review of the ‘Policy Principles’ by various levels” of the Biden administration, as well as the relatively recent appointment of a new lead defense lawyer for bin Attash.
The defense team said the prosecution had “suggested that a response to the Policy Principles from other government actors and agencies can be expected around the end of calendar year 2022 or beginning of calendar year 2023.”
The prosecution’s response to the defense motion to cancel the pretrial hearings for early 2023 was filed in mid-December 2022, but what the prosecution said about the negotiations is not entirely known because the filing is “currently undergoing a security review.”
Air Force Col. Matthew McCall, the presiding judge in the 9/11 case, said in late December 2022 that KSM’s defense team had joined in the request to cancel the early 2023 hearings.
McCall added that the prosecution had provided the court with its first periodic update on the status of the Biden administration’s “policy principles” decision-making and that the prosecution would not oppose canceling the hearings in January and February 2023 but that it was holding off on its position on canceling the March 2023 hearings too.
Top Republicans have criticized any deal that would take the death penalty off the table.
“Joe Biden’s allies are negotiating lesser sentences for 9/11 attackers,” Rep. Jim Jordan (R-OH), the soon-to-be-chairman of the House Judiciary Committee, tweeted at about the 21st anniversary of 9/11. “If they won’t punish terrorists, how can we trust them to lock up criminals in your neighborhood?”
Rep. Mike Turner (R-OH), the incoming chairman of the House Intelligence Committee, also criticized any effort to take capital punishment off the table for Mohammed and his co-defendants.
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“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 last year. “It is unconscionable that military prosecutors would even entertain the idea of a plea agreement that removed the possibility of the death penalty.”
“At a bare minimum, we are at least one year away from trial,” McCall had said in September 2021, shortly after taking over the case. That now seems optimistic and likely impossible. A trial may also never happen.
