After 18 months waiting for negotiations over “policy principles” concerning plea agreements that the Biden Administration rejected with no counter proposal, 9/11 pre-hearings resumed at Guantánamo. Rule of Law committee members Leila Murphy, Colleen Kelly and Terry Rockefeller attended in person. Even before litigation resumed, the judge – the fourth to preside since the case began in 2012 – announced he would retire in April. Then, in the most significant development yet in the case, defendant, Ramsi bin al-Shibh was declared incompetent as a result of PTSD and psychotic delusions resulting from his torture by the CIA and severed from the case.
In the second and third weeks of hearings the commission heard testimony from FBI agents, Frank Pellegrino and Brian Antol, who were members of the so-called “clean team” that interviewed Khalid Sheikh Mohammed in 2007. The prosecution focused on establishing that his statements were voluntary and untainted by torture, while the defense sought to show that there was extensive collaboration between the FBI and the CIA, that the FBI interview mirrored ways interrogations were conducted in the black sites. It emerged that Mr. Mohammed asked about legal counsel, but military commission rules, at the time, did not require counsel if a person was not formally charged.
In meetings with family members, both the prosecution and the defense continued to present plea agreements as a way to resolve the 9/11 case and assure judicial finality and certainty—guilty verdicts with no possibility of appeal or parole. They emphasized the opportunity the plea process would offer families to pose questions and get answers. Further efforts to reach plea agreements will now fall to the new convening authority of the military commissions who starts work on October 8.