Read PT member Terry Rockefeller's piece in Just Security.
The last several weeks have presented some significant challenges to the 9/11 and the U.S.S. Cole military commission cases at the Guantánamo Bay Naval Base and some difficult days for victim family members, like me.
Since August 1, a letter to 9/11 victim family members from the Office of the Chief Prosecutor of the Military Commissions at Guantánamo concerning possible pre-trial agreements (guilty pleas in exchange for removal of the death penalty) has generated confusion and dissent within the victim family member community. Some see the value of speedy plea agreements as a way to finally resolve the 9/11 case. Others assert only a military commission trial can deliver the information they seek, especially concerning Saudi involvement in the 9/11 attacks. Yet another group insists only a death penalty for all five defendants would deliver justice. Recent letters from families and members of Congress to President Joe Biden ask him to oppose plea agreements in the 9/11 case.
My sister, Laura Rockefeller, died in the North Tower of the World Trade Center. As one of the thousands of 9/11 family members who received the prosecution’s letter, I found nothing in the letter to be particularly new information. In May of this year, I attended a five-hour meeting that the prosecution held with family members in the Boston area, at which all the issues presented in the letter were discussed in great detail. (The prosecution also held two meetings in New York City, at two locations in Florida, and one in Washington, D.C.) But clearly, for some family members, the letter was very much news, and understandably there has been pushback and disagreement.
As a member of September 11th Families for Peaceful Tomorrows (Peaceful Tomorrows), I have been advocating for plea agreements in the 9/11 case since 2017. Peaceful Tomorrows is the only 9/11 family organization with NGO status allowing our members to travel to Guantánamo and witness the proceedings in the 9/11 case firsthand, not as victim family members but as representatives of civil society. I have done so on more than 10 occasions, for a week at a time. Additionally, I frequently observe the 9/11 hearings via closed-circuit TV at the Fort Devens Army Base. Collectively, our members have spent hundreds of hours observing the pre-trial hearings that have been ongoing since 2012. We speak regularly with both the prosecution and defense attorneys in order to inform our understanding of developments in the 9/11 case.
Staying abreast with those developments over more than 11 years of pre-trial proceedings has been no simple task. There have been multiple pauses due to irregularities in the courtroom and intrusions into attorney-client relations. These have been compounded over the years by changes of judge, resignations on the prosecution team, and the replacement of several of the defendants’ learned counsel. Additionally, other cases before the military commissions have produced rulings and outcomes that have and will continue to significantly affect the 9/11 case.
All of my experience tells me one thing: the reason there has been no justice and accountability in either the 9/11 or the U.S.S. Cole cases, indeed no ability to even begin a trial in either case, is torture. All the defendants were tortured at CIA black sites overseas and at Guantánamo. Pre-trial litigation in both cases has largely concerned what evidence of the defendants’ torture would be admitted in a trial and what later confessions will be suppressed because they are tainted by that torture. In her report on Guantánamo on June 14 of this year, Fionnuala Ní Aoláin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism stated, “the single most significant barrier to fulfilling the rights of victims and survivors was the use of torture. Torture was a betrayal of the rights of the victims of the 9/11 attacks.” The same can be said for the victims of the U.S.S. Cole bombing.
Indeed, on August 18, the judge in the U.S.S. Cole case suppressed the 2007 confessions by Abd al-Rahim al-Nashiri, the Saudi prisoner accused of plotting the 2000 suicide bombing that killed 17 U.S. sailors. Despite the confessions having been made to FBI “clean teams,” the judge found that Mr. al-Nashiri’s statements were tainted by his previous torture at CIA black sites. The decision said:
Exclusion of such evidence is not without societal costs. However, permitting the admission of evidence obtained by or derived from torture by the same government that seeks to prosecute and execute the Accused may have even greater societal costs. Permitting admission of this evidence would greatly undermine the actual and apparent fairness of the criminal proceeding against the Accused in this case and infect the trial with unfairness sufficient to make any resulting conviction a denial of whatever process is due.
The decision, whether or not it withstands appeal, will surely have ripple effects in the 9/11 case where there are similar efforts to suppress confessions made to FBI agents.
Then on August 25, in a finding that again puts a focus on torture, a military board of three mental health experts declared Ramzi bin al Shihb incompetent to stand trial or plead guilty in the 9/11 case. Mr. bin al Shihb, who is accused of conspiring in the 9/11 attacks and was tortured during years spent in CIA custody, was diagnosed as suffering from “post-traumatic stress disorder ‘with psychotic features.’” The judge could now sever Mr. bin al Shibh from the rest of the 9/11 proceedings and proceed with only four defendants, or the entire case could halt, yet again, while doctors at Guantánamo try to restore Mr. bin al Shibh’s competency. The judge has scheduled hearings on these issues during the week of September 18.
Torture is also the reason that death penalty convictions in either the 9/11 case or the U.S.S. Cole case may be an impossible goal. I personally witnessed the Majid Khan sentencing hearing in October of 2021, where I saw just how unlikely a death penalty conviction will be in any Guantánamo military commission case. Seven of the eight members of Mr. Khan’s panel (military jury) of senior officers, after hearing from him about how he had been tortured, spontaneously wrote a letter of clemency to the Convening Authority of the military commissions that said, “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; the treatment of Mr. Khan in the hands of U.S. personnel should be a source of shame for the U.S. government.”
One 9/11 prosecutor said clearly to family members at the Boston meeting I attended, Mr. Khan’s panel’s letter had a “big impact on us.” Another 9/11 prosecutor reflected that since a death penalty conviction in the military commissions must be a unanimous decision by the panel, it would be “difficult.” And, he argued, that could be a reason to pursue guilty pleas now. These pleas, he explained, would include a “stipulation of facts” from each defendant in which he swears to truthfully acknowledge all the unlawful activity he was involved in or has knowledge of. The accused would be sentenced to life in prison without possibility of parole or appeal, and victim family members and the larger public would acquire far more information about the 9/11 attacks than we now have. Perhaps most important for family members, a plea agreement could include an opportunity for us to pose questions to the accused; a trial will not.
Pursuing a trial by military commission would mean that after an unknown but likely significant additional amount of time, there might be a verdict. That verdict would be followed by lengthy appeals concerning all the irregularities that have occurred in the proceedings at Guantánamo. It could take years. Chillingly, when asked what would happen if one of the defendants died before a trial and all the subsequent appeals through the U.S. Court of Military Commission Review and the federal courts were concluded, family members who met in Boston were told in no uncertain terms that he would be presumed “innocent.”
I understand and fully share the desire for justice and accountability being voiced by 9/11 victim family members, who have a variety of — sometimes conflicting — aims. We all want more complete information. I fully share the concerns of so many family members that Saudi support for al-Qaeda in general or specific involvement in the 9/11 attacks, whether by individual Saudi citizens, by Saudi organizations, or by members of the Saudi government is an issue about which we deserve the facts. But all of my experience with the 9/11 case at Guantánamo tells me that this is information we will never learn in a military commission trial.
The plea agreement process, however, can provide a means for victim family members to pose specific questions to the defendants. We should organize and do exactly that. 9/11 family members can and should demand answers to all our questions as part of the stipulations of facts that must accompany each of the five defendants’ plea agreement. We should fight for further declassification of all the evidence in the U.S. government’s possession concerning how the 9/11 attacks were planned, supported, and carried out. The impending 22nd anniversary of our loved ones’ deaths is a truly fitting occasion to end the failed 9/11 military commission, answer our questions, and assure us of judicial finality.