OPINION:
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In the months following the 9/11 attacks, the government blamed al Qaeda leader Osama bin Laden for orchestrating them. Then, after it murdered bin Laden, the government decided that the true mastermind was Khalid Sheikh Mohammed.
By the time bin Laden was killed in 2011, Mohammed had already been tortured by CIA agents for three years at various black sites and charged with conspiracy to commit mass murder, to be tried before a U.S. military tribunal at Guantanamo Bay, Cuba.
Mohammed and four other alleged conspirators have been awaiting trial since their arrival at Guantanamo in 2006. Since then, numerous government military and civilian prosecutors and numerous military judges have rotated into and out of the case. Two weeks ago, the government and the defendants agreed to a guilty plea in return for life in prison at Gitmo. Then, last week, the Department of Defense abruptly changed its mind and rescinded its approval of the guilty pleas.
Here is the backstory.
The concept of military tribunals for the perpetrators of the 9/11 attacks was born in the administration of President George W. Bush, who argued that the attacks, though conducted by civilians on civilians, were of military magnitude and thus warranted a military response. Through the 22 years the U.S. military prison at Gitmo has existed, no one has been tried for causing or carrying out the crimes of 9/11. The government tried only one person for crimes related to 9/11. That was Zacarias Moussaoui, who pleaded guilty in federal court in Virginia to conspiracy for being the 20th hijacker and then was tried in a penalty phase trial where the jury chose life in prison.
Mr. Bush’s rationale not only brought us the fruitless and destructive wars in Afghanistan and Iraq but also a host of legal problems unforeseen by Mr. Bush and his revenge-over-justice colleagues. The first legal issue was conspiracy. Since Mohammed did not carry out the attacks, he could be charged only with planning them. Conspiracy, however, is not a war crime; thus, no military tribunal could hear the case. So Congress devised a historic first: a military tribunal trying civilian crimes.
The next issue was where to try Mohammed and his colleagues. President Barack Obama wanted to close Gitmo, which costs $540 million annually to operate, and try Mohammed and the others in federal courts. This would have been consistent with federal law and the U.S. Constitution. But Republicans in Congress viewed Mohammed as too dangerous to bring onto U.S. soil, and so Congress enacted legislation that prohibits the removal of Mohammed and the others to the United States for any purpose.
The prohibition of removal means that any life terms would need to be spent at Gitmo. It also means that there would be a legal obstacle to executing a death sentence, as Gitmo is not equipped to execute anyone.
Most troubling, however, is the government’s problem of how to address the issue of torture. Mr. Bush believed that military men on military juries would neither cringe at torture nor hesitate to impose a death sentence. Yet when defendants in cases unrelated to 9/11 at Gitmo described the torture that CIA agents and military officials had inflicted upon them, military jurors were repulsed by what they heard and recommended clemency even for those who caused deaths.
These events — filing legally baseless charges, prohibiting the removal of civilian defendants to civilian courts and fear of the likely reaction of military jurors to testimony about torture — caused the prosecution team to rethink the entire idea of putting Mohammed on trial. In March 2022, the government initiated secret plea-bargaining negotiations with defense counsel.
In large measure, government prosecutors — now the fourth team since 2006 — recognized that Mr. Bush’s torturers had so brutalized the defendants that their allegedly voluntary confessions would likely be tossed by the trial judge or rejected by a jury. Moreover, there are serious ethical issues when lawyers defend torture — so serious that it could jeopardize their careers.
Why would the government agree to such a plea bargain for those it claims are the monsters who murdered 3,000 Americans on 9/11 and triggered all the horrors that followed those murders? What does the government fear?
What does it always fear? The truth.
Since the trial judge — the fourth judge on the case — had already accepted the guilty pleas before the Defense Department changed its mind, it is unclear if he will enforce them.
If he does not, there will be a trial. At trial, the defendants will be permitted to bring the government’s imperialistic wars, its torture and its foreknowledge of 9/11 into the courtroom. The government knows that much of its behavior — including the CIA-orchestrated overthrow of a popularly elected prime minister of Iran in the early 1950s and the untruthful excuses for toppling Saddam Hussein — will show American foreign policy at its imperialistic and violent worst.
And the hours and weeks and months and years of repeated torture — all of it criminal — will undermine the case against Mohammed and the others.
This is what happens when our legal system is interfered with for authoritarian reasons. The tragedy of 9/11 happened on Mr. Bush’s watch. What did the CIA know before 9/11? Mr. Bush compounded his ignorance and failures with boasts of bravado and torture — all of which have come back to haunt his current successor in the White House.
Defense and Justice Department lawyers have recognized that they cannot try this case without doing material damage to the American empire, built on death, lies and torture, without revealing the names and methods of the men who did these horrible deeds and the lies of the presidents who authorized them — and without the truth coming out at last.
What good has come from Mr. Bush’s torturers? None.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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