September 8th, 2023
Colleen Kelly
By now, those responsible for 9/11 should have been tried, evidence presented and – if found guilty – punished. Torturing these detainees not only cost us moral legitimacy, but a conviction.
"Unacceptable," said the victim family member sitting in front of me, intentionally interrupting the prosecution's presentation. It was May 2023, and the prosecution team for the case was meeting 9/11 family members across the country. It has been 22 years since the murder of our loved ones, including my brother Bill. And it has been 11 years since the five men accused in the 9/11 plot were arraigned.
So this man, presumably of few words, didn't need to say more. It is unacceptable that, to date, no one has been held accountable for the deaths of Bill and nearly 3,000 others on Sept. 11, 2001.
One solution that would bring judicial finality is a plea agreement in the 9/11 case. It is also very likely 9/11 families’ best chance at getting the information and truth we deserve. Let me tell you why.
Most people I speak to believe that Khalid Sheik Mohammed and four accomplices were convicted years ago and in prison, if not dead. This assumption is common, given the scant public information available and little appetite to seek it out. The public not knowing is understandable.
Two wars – one in Afghanistan as a response to the 9/11 attacks, and the second in Iraq – provided tragic distraction. And since the five accused were held incommunicado at CIA black sites until 2006, their whereabouts were purposefully unknown. When these men were moved to the U.S. Navy base's detention center at Guantanamo Bay, Cuba, it took years for legal teams and the news media to be granted meaningful access. And even though the accused were arraigned in May 2012, there has still been no trial. Unacceptable.
Guantanamo Bay torture cost families justice, too
In a summer of consequential indictments, it's hardly surprising that an indictment from 11 years ago could remain relevant, let alone make the news. Whether you agree with the charges against former President Donald Trump or not, we should all agree that by now, those responsible for 9/11 should have been tried, evidence presented and – if found guilty – punished. Yet because the 9/11 accused were all tortured while in CIA custody, this has not been allowed to play out.
Regrettably, torturing these detainees not only cost us moral legitimacy, but it has also cost us a conviction.
There's another possible pathway to resolution of the 9/11 case, however: plea negotiations. About 98% of federal major crime trials are resolved with plea agreements. The same could happen for the 9/11 case even though it's being tried in a military commission rather than a federal court. Given the repeated failures to move the trial forward, prosecutors for the commission initiated plea negotiations in March 2022.
There had been some progress, but per the recommendation of Secretary of Defense Lloyd Austin, this past week the Biden administration rejected conditions for plea agreements proposed by the 9/11 defense teams, according to The New York Times.
Some law firms representing 9/11 family members involved in suits against the Saudi government had also advised families to reject plea agreements. This is misguided. In a military commission, the U.S. government can elect to create substitutions rather than release information it deems too classified or damaging to ever make public.
In a plea agreement, however, the accused must swear to a stipulation of fact, truthfully acknowledging all unlawful activity they were involved in or have knowledge of.
And, perhaps most important to families, a plea agreement could provide an opportunity to pose questions to the accused – a trial won’t.
Give 9/11 families peace: Offer a plea agreement
I testified at a Senate Judiciary hearing in December 2021 about how judicial finality can be achieved in the 9/11 case. In my remarks, I told the senators about 9/11 family members, now deceased, who waited decades for accountability.
I told them about my parents, one a Democrat, one a Republican, both in their mid-80s, who also await accountability for their son's death.
Lastly, I told them although this was not the outcome initially hoped for, plea agreements were the singular best path forward to hold those allegedly responsible for mass murder to account.
It’s time for the Biden administration to finally conclude the 9/11 military commission. The way forward is clear: Offering a plea agreement will put this tragic and painful chapter of our shared history behind us. Let my brother Bill and thousands of others rest in peace. That would be acceptable.
Colleen Kelly is a family nurse practitioner specializing in adolescent medicine in the Bronx, New York. After her brother Bill was killed in the North Tower of the World Trade Center on Sept. 11, 2001, she co-founded 9/11 Families for Peaceful Tomorrows with other 9/11 family members. Colleen serves as the chair of the Rule of Law Committee for Peaceful Tomorrows and holds a master's degree in International Relations from the City College of New York.