By Sam Ozer-Staton 

On the eve of the 20th anniversary of 9/11, Preet was joined on Stay Tuned by former Secretary of Homeland Security Jeh Johnson. They discussed a topic that gets little media attention today, but was a source of political and legal wrangling for much of the early 2010s: the trial of 9/11 architect Khalid Sheikh Mohammed (known as KSM) and four other defendants involved in the attacks. 

Two decades after 9/11 and 11 years after war crimes charges were filed, there has still not been a trial held for the men who plotted the attacks. And no trial date has been set.

How did we get here? 

Before the pandemic, in 2019, a judge had set January 11, 2021 to start the selection of the military commission that will hear the case, and estimated that the trial could last a year. Since then, the trial has been delayed by the pandemic and the retirement or transfer of judges. 

But those challenges pale in comparison to another long-running cause of delays: the admissibility of evidence gathered through the use of torture. KSM and four other defendants were captured in 2002 and 2003 in Pakistan, held and subjected to so-called “enhanced interrogation techniques” at secret CIA black sites, and then brought to Guantanamo Bay, Cuba, for trial in 2006. (After President Obama took office in 2009, the Department of Justice released a 2005 memo that revealed that KSM was waterboarded 183 times in March 2003.) 

For years, prosecutors and defense lawyers have gone back and forth over the admissibility of what the five men told the FBI in 2007 at Guantanamo, months after their arrival from CIA custody.

The other major hangup, which Preet and Secretary Johnson discussed at some length, has been the question of venue: Should the defendants be tried in Guantanamo Bay by a military commission, or should they be tried in a federal civilian court? 

Military commissions, which are a combination of the military court-martial and the federal criminal court systems, were created by Congress in 2006 and reformed in 2009. Under that system, the judge and the jury, technically called a “panel,” are members of the military. The KSM trial would take place in a large courtroom on the grounds of Guantanamo that was built specifically to try the 9/11 case. Spectators in the gallery would hear the trial on 40-second delay, to give the judge’s officer enough time to mute the audio if anybody says anything classified. 

That’s not the setting the Obama administration had initially wanted for the trial. In November 2009, DOJ announced that KSM and the four other detainees would stand trial in the Southern District of New York, in a courtroom just blocks from Ground Zero. But in April 2011, Attorney General Eric Holder reversed that decision, announcing that the five men would instead face a military commission at Guantanamo. 

Here’s the exchange that Preet and Secretary Johnson had over the political pushback that led to DOJ’s reversal:

Preet Bharara: [It was] a sensitive topic at the time. And I, as U.S. Attorney, did not speak about it much and basically kept my face out of it. But there were debates that I participated in as the new U.S. Attorney, down with the Attorney General, Eric Holder, and others. Time and time again, in the fall of 2009, we made the argument for a civilian trial in the Southern District Court for KSM and the co-defendants. In fact, it was so certain after the Attorney General made the decision to send the case to us, I got a tour of the Metropolitan Correctional Center that Eric Holder came up for. The Chief Judge attended, the United States Marshal attended, and the warden wanted to show us the cell in the Metropolitan Correctional Center that KSM would have occupied as we expected the trial to commence in some months. How come that never happened?

Jeh Johnson: So let’s go back to the Bush to Obama transition of 2008 and 2009. Congress had passed the military commissions in 2006 in response to the Supreme Court decision, saying this needs to be codified into law. I was impressed by the fact that our JAG leadership, the military lawyers, and the military prosecutors were offended by aspects of the Military Commissions Act of 2006. The possibility that one could use, against a defendant in that system, statements taken as the result of cruel, inhuman and degrading treatment. The JAGS were very offended by that. They felt that [it would] impugn the integrity of their military justice system. They wanted reform, and they convinced me that with a reformed military commissions system, we could make it work. And we worked with Congress in 2009. We got the law changed. President Obama agreed to use the military commissions system for certain cases, and we would divvy up the cases, which we did. We went through a process. I went through the process with David Kris, who was the assistant AG for national security. And we divided up the cases. I believed — I agreed — that the 9/11 case should come to New York, right here in Manhattan, as a New Yorker, as a former assistant from the Southern District, and because I knew the principal victims were all civilian. This case should be tried in Federal District Court in Manhattan. And I was prepared to see that case go to Manhattan.

Preet Bharara: And the decision was in fact made. And it unraveled. 

Jeh Johnson: And it unraveled because of political forces. Frankly, I don’t think we adequately prepared the battlespace for the announcement. We did not adequately vet it with the mayor with the congressional delegation up here.

The “political forces” that Johnson discussed were not just local but national. Republican Senator Lindsey Graham, in particular, led the fight against trying KSM in a civilian court. He said in 2009: “I will do anything in my power to make sure Khalid Sheikh Mohammed never sees the inside of a federal court. The reason being is that I’m very worried about the precedent you’re setting when you hold someone six or seven years under the law of war and then all of a sudden you introduce them into the American criminal justice system.”

And fight he did. Graham attempted to broker a deal with then-White House Chief of Staff Rahm Emanuel in which the Senator would support closing Guantanamo Bay in exchange for allowing KSM to be tried by a military commission there. By 2010, the support for allowing the defendants to be tried in a civilian court had eroded. Even New York City Mayor Michael Bloomberg and Senator Chuck Schumer withdrew their initial support. 

Now, as the 20th anniversary of 9/11 approaches, Guantanamo Bay remains open and the men who plotted the attack have yet to stand trial. 

What happened? 

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