Preet Bharara:
From Cafe and the Vox Media Podcast Network, this is Stay Tuned In Brief. I’m Preet Bharara. Today marks the 22nd anniversary of the September 11th attacks that claimed nearly 3,000 lives in New York City, Washington DC, and Shanksville, Pennsylvania. In November of 2009, Eric Holder made the decision that Khalid Sheikh Mohammed and four associates would be brought to justice in the Southern District of New York in federal court. That, of course, never happened. Now here we are 14 years later on the 22nd anniversary of 9/11, and there’s been no trial in any forum. Last year there seemed to be some progress when plea negotiations were initiated with five individuals, including the alleged architect of the attacks, Khalid Sheikh Mohammed. All five are currently detained at the Guantanamo Bay military prison. Why hasn’t there been more progress towards bringing these suspects to justice? Carol Rosenberg of the New York Times has been reporting on Guantanamo Bay since the first prisoners were brought there from Afghanistan in January, 2002. Carol, welcome to the show.
Carol Rosenberg:
Thank you for the invitation.
Preet Bharara:
It’s always a sad anniversary and there’s a lot to mourn and a lot of loss and a lot to remember, but one thing that I think it’s important to keep in mind is that there were real people who perpetrated these crimes. As I mentioned in the introduction, in 2009, I got the phone call from Eric Holder, who was then the Attorney General when I was the US Attorney, that there would be a federal criminal trial in what we call Article 3 courts, and that KSM and four co-defendants would be brought to justice there and we’d be doing the case jointly with prosecutors from the Eastern District of Virginia. Could you remind folks why that never happened?
Carol Rosenberg:
Congress blocked it. That’s the short answer. The long answer is in the interim, as you probably know best, there was a trial in the Southern District of Ahmed Ghailani, somebody who had been moved from Guantanamo Bay and was charged with hundreds of counts and was convicted of one. I think it made people extremely nervous that with the history of these five defendants and their long journey to justice, somehow you and your team would not be able to convict them. In addition, Congress came to really become big fans of Guantanamo. They wanted Guantanamo forever. They systematically legislated blockades on bringing detainees from Guantanamo to the United States for any reason, not for trial, not to serve their sentence, not for medical care. That blockade has continued and eventually the administration realized that if they were to put these five men on trial, they had one place to put them on trial and it was Guantanamo Bay and one forum, it was a military commission.
Preet Bharara:
Remind folks also before we get into details of the delay, who Khalid Sheikh Mohammed is and something about his four co-defendants.
Carol Rosenberg:
Khalid Sheikh Mohammed was born in Kuwait from a Belushi family and educated in the United States. Biographers have described him as a man who was consumed with plotting terror, plotting attacks with a animosity towards the United States that was deep-seeded and stretching back to some years he spent in the South studying mechanical engineering. He had a cousin named Ramzi Yousef, who is serving life in prison for the first World Trade Center bombing. Between the two of them, they had schemes.
He lived in the Middle East and traveled at times to Indonesia, Malaysia, and was in Afghanistan and Pakistan. Came into the company, according to the charge sheet and according to the allegations, of Osama Bin Laden and is accused of hatching the plot that became the 9/11 attacks. He is in Afghanistan on 9/11 and becomes a more and more central character, central figure in Al-Qaeda. He’s not captured until March 2003, so there’s a period of time after the attacks where his name is known not widely. Because I think as you well know, people blamed Osama bin Laden for this plot. It was over time that the Bush Administration let us know about this man, his profile and what he’s alleged to have done.
The other four men who are charged with him are accused of conspiring in the plot of either helping find, train, provide travel arrangements, financing for the 19 men who were actually the hijackers who committed those crimes on 9/11, the men who took over those four planes. They include his nephew who was in the Persian Gulf at the time of the attack, an associate who also spent time in the Persian Gulf, a then young man whose family had sent their boys and young men to work for Osama bin Laden, and a man named Ramzi bin al-Shibh, who was in Germany and has been accused of organizing the Hamburg cell that put together on the ground those attacks.
Preet Bharara:
Right. In a nutshell, how do you explain to the public generally, especially folks who haven’t been following it closely, but to the 9/11 families specifically, how it can be that we are 22 years along from the attacks, 14 years past the decision to try these men in the federal district court and there has not even been a trial?
Carol Rosenberg:
President Obama explained it possibly too glibly, but we tortured some folks. By that in a nutshell is the administration made the decision back in ’02 and ’03 when they captured these men not to pick them up and take them straight to New York City and charge them. They made a decision to disappear them into the black sites of the CIA. They spent the next three and four years without lawyers, without rights, in incommunicado detention, being questioned and tortured and controlled absolutely with no basic rights as the administration in the first instance at least desperately looked for more plots. They made a decision not to charge them, but to interrogate them beyond the rule of law.
Preet Bharara:
Right. That accounts for delay, to be technical about it, in two ways it seems to me. One, they just weren’t brought into the proper forum for some period of time. That accounts for three, four, five years of delay. It also accounts for some delay in the legal wrangling over whether or not those interrogations produced tainted confessions. That has been a subject, as hopefully you’ll describe a little bit, of the proceedings in Guantanamo Bay, but it doesn’t quite explain why so long. You could imagine in an Article 3 court, in federal court if it had gone that route, these issues would’ve been raised, there would’ve been motions about them and there would’ve been a government response and there would’ve been a decision either for or against the government, but it wouldn’t have taken 14 years.
Carol Rosenberg:
The decision may have been that there was inadequate evidence. I mean, the process involves the government representing the CIA and declassifying or creating almost like shadow evidence that is applicable at trial. It’s CIPA and you know what CIPA is.
Preet Bharara:
Classified Information Procedures Act.
Carol Rosenberg:
The Classified Information Procedures Act says there are real national security secrets that cannot be made public, and it is the duty of the government and the judge to find a balance between what the public can know, what cannot be disclosed, and create a fair trial. In essence, that has been a big part of the struggle for the judges down at Guantanamo Bay, for the prosecutors in the case and for the defense lawyers as they try to surface enough information to give them the fair trial.
Pretrial has been focused almost entirely on what happened to them while they were in detention, how it affects evidence that they would later seek, that they still want to take to the trial, whether there was ever a voluntary confession and what the judges have yet to decide in this case, whether what the prosecutors consider to be the best evidence in this case, their own confessions in 2007 at Guantanamo Bay is admissible at trial. This has been a protracted period of bringing down witnesses and investigation and discovery, and struggle between the stakeholders and the CIA and other members of the intelligence community, to determine what evidence can be presented to the judge to decide if these confessions even can be used.
Preet Bharara:
Yeah, and one of the procedures employed by the government in both this matter and at least one other matter, was to have what they call a clean team. Fresh agents who were not involved in the torture or enhanced interrogation techniques report to voluntarily take statements from these same folks. There was a development in very recent times with respect to the case of a man named Mr. Nashiri who’s accused of bombing the USS Cole with a different military judge. What happened in that?
Carol Rosenberg:
The judge ruled recently that his confession was inadmissible. That even four months after he’d been brought to Guantanamo from four years in CIA custody, the man was incapable of voluntarily participating in interrogation. No matter how nice, no matter how friendly, no matter how many times the FBI agents that were brought before him told him, this is voluntary, tell us what you did, the judge concluded that four years in the black sites, a program of enhanced interrogation and absolute positive control over his every move and no access to the outside world had made it impossible for that defendant to understand that he had the right not to incriminate himself.
In the 9/11 case, you have five of these men who went through five of these procedures, who had five different but similar experiences in the CIA custody. The judge is going to have to make the decision one by one based on the facts on all of those so-called clean team interrogations. I mean, he essentially found the clean teams weren’t clean. He found that they couldn’t be clean, that they went in and passively received, at best passively received the information that the defendant offered up, that he had been, I don’t want to say programmed, but trained to offer up on demand in custody.
Preet Bharara:
The judge sort of said the statements were beaten out of him years before.
Carol Rosenberg:
He said that.
Preet Bharara:
You can’t un-ring that bell. That’s in the Cole case. As a matter of legal principle, the 9/11 judge does not have to follow it, but is it your prediction that that judge will?
Carol Rosenberg:
Well, military commission is a military commission unto itself, and this military judge is still fact finding. What’s going to happen later this month or next month at Guantanamo is the examination of one of the agents who participated in the clean team who took the statement from Khalid Sheikh Mohammed, the alleged mastermind, is going to appear for the first time and describe why and how he thinks that KSM volunteered himself as the mastermind and then there has to be an examination of the circumstances.
I mean, one of the things that came up in Nashiri is that in the USS Cole case, they were all housed in the same sort of circumstances, both in the CIA and at Guantanamo, and that the CIA still had a hidden hand on his detention was still involved in it. The idea of four months after they get there, there being a clean break, a new start, the CIPA material that we can’t see has shown the judge that there was no clean break even at Guantanamo Bay.
Preet Bharara:
Is part of the reason for the delay, the lack of legal precedent and guidance within the military tribunal system? For example, the issue of under what circumstances can someone plead guilty or in what circumstances someone can cooperate in other procedural issues, has that been one of the causes for delay as well?
Carol Rosenberg:
There’s a theory that the men came to court for the first time in 2009 intending to plead guilty. I think with reflection and time, what they did is they made declarations of their willingness to accept their martyrdom. They thought this was a continuation of the expectation that they had lost control of their fate. What would be required to make a guilty plea, as we’ve learned across the years, is not accepting death and saying, “Okay, I did it.” It is a active, robust, voluntary participation with the aid of an attorney, which they had just received, in owning up to their criminal behavior, admitting to what they’d done and satisfying the prosecutors. That happens in any court, as you know. That did not happen during the period when people believe they wanted to plead guilty. What happened was they were still finding their way into a system that in a way protected them from just walking to their deaths. That said, there has to be a legal process that examines the evidence and figures out what they did. That process has been going on for years and years.
Preet Bharara:
Is there also an issue now in recent times again as to the mental competence of one or more of those defendants?
Carol Rosenberg:
Well, that’s been going on since 2013 for one of the defendants, the man I described earlier who was accused of organizing the Hamburg cell, he’s been found incompetent to stand trial. He is not considered sane enough to plead guilty or to face trial. He’s down at Guantanamo Bay and he has a diagnosis I’m told of PTSD with some psychosis involved. They haven’t adequately figured out how to treat it in the 18, 17 years he’s been there. The judge can do a fact finding and there can be a discussion of what treatment he might get, but for now, he’s incompetent to stand trial. Unless the prosecution proposes a way forward that delays the case some more while he is treated, it should in the next month go from being a five defendant case to a four defendant case, something the prosecution has fought for years.
An earlier judge tried to sever that man and the prosecution said, “No, we want one trial for five men all facing the death penalty, all tried at the same time.” Got the judge to put that man back in the case. Now there’s been a full sanity board that has taken place and found Ramzi bin al-Shibh not competent stand trial. Even if they are able to get to trial someday, it looks like it’ll be four of the five defendants, not all.
Preet Bharara:
What’s the level of frustration on the part of the families of the victims? Then also how are public officials approaching this, thinking about it? The Bush Administration, Republicans. It doesn’t get a lot of attention anymore even though you write about it importantly. What’s the reaction from the public?
Carol Rosenberg:
Guantanamo is so far away lots of people don’t even remember it’s there. Around the anniversary of 9/11, suddenly people are interested in the case and remember that those five men are accused of it and are shocked that they haven’t been tried, convicted, and in some instances people believe they should have been executed by now. The whole years go by and Guantanamo’s forgotten and so is the case. This is a painful thing for the family members who care about that case. 2,976 people’s names are listed on the charge sheets and everybody has families. For those who think this is an important place for this to play out, it’s too far away. It’s too bureaucratic, it’s too distant. I just don’t mean in terms of geography, in terms of process. It doesn’t feel like their trial. It feels like maybe it’s the Pentagon’s trial. It feels like maybe it’s Guantanamo’s trial, but there’s another group of people who just can’t really relate to it at all.
There’s extremes on the left who think you don’t have the moral authority to execute people who you tortured and denied rights. People on the right who think they have far too many rights and how is it that this has gone on for so long? America should have killed them years ago one way or the other. Then there’s a lot of other people who have questions about what happened on 9/11 that probably won’t ever go through a court of law in Guantanamo Bay. I think as you know, there’s an active movement trying to establish what the Saudi role is or was and the relationship of the Saudi government to that effect. It’s unresolved in the minds of many family members and I think that they’re realizing with great disappointment that the Saudi government is not part of that trial if it ever happens down there.
It’s unfair. It’s unfair to the families. Some people blame the decision to go to the black sites. Some people blame the decision to let you have it. Some people blame the decision to get them some of the best defense lawyers in the country who are skilled at capital defense. Lots of unhappiness over this and it’s not a monolith.
Preet Bharara:
It’s not a monolith at all. Right.
Carol Rosenberg:
The politics. In March, 2022, these prosecutors offered the men to plead guilty in exchange for life in prison. Unsaid was the realization that even were they to get this thing to trial in the next couple of years, and even if they were to win a conviction and death sentence from a military jury, years of appeals and challenges to this concept of military commissions, to the decision to go to the black sites, to all of the things that came before would potentially endanger a conviction and potentially mitigate the possibility of a death sentence.
We had another case where a defendant who went through the black sites and was responsible not for anything of the magnitude of the horror of the 9/11 attacks, but was found responsible for another Al-Qaeda attack, told his story of what happened to him in the black sites and a military jury did their duty and issued the sentence within the parameters and then wrote a letter urging clemency. These are the kinds of episodes, what we spoke about just a few minutes ago, the USS Cole confession being thrown out. These are the kinds of episodes along the way that have led these prosecutors to get to the point where they wanted to see if they could negotiate a plea agreement.
Preet Bharara:
Right. The closure.
Carol Rosenberg:
The politics of it is the defendants wanted certain assurances that no prosecutors could give. They wanted political assurances that they’d never be put back into solitary confinement like in the black sites like the CIA did. They wanted a program of torture care for the damage, brain damage, physical damage, emotional damage of what their lawyers say they came out of the black sites suffering. That has to be provided through a policy decision of the administration. Just last week, President Biden decided this was not something he was going to weigh in on, he was going to offer, he would not sign off on, so it’s back to the prosecutors to negotiate, if they choose, what and how to reach plea agreement with the now four men who would be up for trial in the 9/11 attacks.
Preet Bharara:
How do you think this will ultimately conclude? Isn’t there a reasonable likelihood that one or more of these men will actually pass away before there’s a conclusion to these legal proceedings?
Carol Rosenberg:
One of them is very sick and has very big physical damage blamed on the black sites. Yes, it’s entirely possible that these men will die unconvicted at Guantanamo Bay. Certainly in the case of the man who’s not found competent, he doesn’t get a trial. They just become lifetime prisoners at Guantanamo Bay because Congress doesn’t allow them to be moved elsewhere, and as long as they are accused of these crimes, we’re not sending them to another country.
Preet Bharara:
Any lessons you think people have learned from this episode, legally?
Carol Rosenberg:
Oh, I’m sure they have. I’m not a lawyer.
Preet Bharara:
Good for you.
Carol Rosenberg:
I think that there’s probably entire classes that should be taught about this, but what it is, and I think this will surprise you, it’s a crash course in CIPA on steroids. There is no trial like this anywhere else, where there are so many secrets that have to be processed by the intelligence community into a court of law, either in a military or civilian setting. It is unparalleled. When you have five people trying them together, the magnitude of this is so big that it is not surprising that 22 years later this is not done.
Preet Bharara:
Carol Rosenberg, thanks for covering the issue. Thanks for bringing insight to the issue and talking about it on this always very sad anniversary.
Carol Rosenberg:
Yes. Thank you very much.
Preet Bharara:
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If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @PreetBharara with the #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com. Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producer is Noa Azulai, and the Cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Nat Weiner, Namita Shah, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.
