By Terry Kay Rockefeller Published Sep. 10, 2023, 7:27 p.m. ET
For 22 years, my family and I — and most of all my sister, Laura, and the nearly 3,000 others who were killed in the 9/11 terrorist attacks — have been denied justice.
The betrayal began with the Bush administration’s 2003 decision to take the men accused of planning and supporting the attacks to CIA “black sites,” where they were tortured.
Then the administration compounded its shameful decision by sending the accused to the Guantanamo Bay Naval Base and attempting to conduct a trial in an inadequate military-justice system, rather than in federal court.
When a majority pleaded guilty, the judge was unsure how to proceed since Guantanamo rules were unclear about death sentences if the defendants had no lawyers.
Congress later overhauled the Guantanamo legal system.
The Obama administration made a half-hearted attempt in 2009 to move the 9/11 case to federal court in New York.
State and city politicians opposed this, so the case returned to Guantanamo.
In 2018, six years after the five accused were arraigned for a second time, no trial had begun.
The military official with authority to do so began negotiating plea agreements (guilty pleas in exchange for abandoning the death penalty), but then-President Donald Trump’s defense secretary fired him, and we were back to pre-trial hearings!
By March 2022, the complete failure of the 9/11 military commission became so apparent that the prosecution — the attorneys representing the US government and the American people — began plea-agreement negotiations with the defense.
But Wednesday, the Biden administration, after doing nothing for 17 months, rejected proposals concerning the defendants’ future terms of confinement, pretty much destroying any hope I see for a resolution of the case any time soon.
The 9/11 family community is large and diverse, and understandably we hold a range of opinions about trials, the death penalty and plea agreements.
But we all want more complete information about how the attacks were planned and supported.
I am not a party to any of the Saudi lawsuits, but I believe we deserve the facts concerning Saudi support for al Qaeda in general or specific involvement in the 9/11 attacks, whether by individual Saudi citizens, Saudi organizations or members of the Saudi government.
In thinking about the options, consider three questions:
1. Will the 9/11 military commission at Guantanamo ever conduct a trial that leads to a verdict?
2. If so, what is the likelihood of death-penalty convictions?
3. What can plea agreements offer victim family members and the US public?
I have gone to observe the 9/11 case at Guantanamo on more than 10 occasions. I also regularly see the hearings via closed-circuit TV at the Fort Devens Army Base.
I hope my perspective can inform and broaden the debates taking place within peoples’ families, in the halls of Congress and among the larger public.
For 11+ years I have watched the fact of the defendants’ torture totally derail efforts to conduct a trial.
Courtroom argument focuses on what evidence was tainted by torture and therefore inadmissible.
Hearings are often closed to the public and the press to protect classified information about the CIA’s actions.
It is not a system designed to reveal facts the government wants to protect.
No former CIA detainee has been convicted in a trial before the military commissions.
Perhaps the 9/11 accused will be the first. If so, it will take many years.
Then years of appeals will begin: first in the Court of Military Commission Review and then in federal courts, likely up to the Supreme Court.
The 9/11 prosecutors told families that if a defendant dies before all the appeals are concluded, he will be considered innocent.
One former CIA detainee was sentenced in a military commission through a plea agreement.
The military jury of senior officers was so outraged upon learning of his torture that seven of eight wrote a letter of clemency saying, “This abuse was of no practical value in terms of intelligence, or any other tangible benefit to U.S. interests. Instead, it is a stain on the moral fiber of America.”
Since a death-penalty conviction in the military commissions must be a unanimous decision of the jury, if one juror felt similarly about the torture of the 9/11 defendants the death penalty would not be imposed.
Plea agreements, by contrast, would result in immediate guilty verdicts and life sentences without possibility of parole or ever appealing those verdicts or sentences.
Many plea agreements allow victims and victim family members to pose questions to the defendants.
We can and we should organize and demand answers to all our questions as part of the stipulation of fact each defendant must make concerning his guilt.
Separately, we must also fight for further declassification of all the evidence in the US government’s possession concerning how the 9/11 attacks were planned, supported and carried out.
Twenty-two years without answers, without justice and without accountability — that too is a stain on the moral fiber of America.
Terry Kay Rockefeller is a founding member of September 11th Families for Peaceful Tomorrows, the only 9/11 family organization with nongovernmental-organization status allowing its members to observe the 9/11 military commission at Guantanamo as representatives of civil society.
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