9/11 prosecutors open plea talks with accused masterminds to avert death penalty trial

For nearly a decade, five men accused of orchestrating the September 11 attacks have sat in military custody at Guantánamo Bay while their case languished in pretrial proceedings. Now, prosecutors have begun negotiating with their lawyers over something that seemed unlikely just months ago: guilty pleas that would spare them execution and replace death sentences with life imprisonment.

Khalid Sheikh Mohammed, identified as the mastermind of the attacks, and his four co-defendants are accused of directing, training, and financing the 19 hijackers who crashed four commercial aircraft into the World Trade Center, the Pentagon, and a field in Pennsylvania on September 11, 2001, killing nearly 3,000 people. The case has been stalled by legal disputes, logistical challenges, and a two-year court closure during the coronavirus pandemic. No trial date has been set nearly a decade after the men were arraigned.

The negotiations began last week when a scheduled three-week hearing at Guantánamo was derailed by an unexpected development: Cheryl Bormann, the lead defense lawyer for one of the defendants, asked to step down from the case, citing an internal investigation into her performance by the chief defense counsel. The disruption created an opening. Clayton Trivett, a lead prosecutor, sent an email to defense teams proposing they use the time to discuss whether plea agreements were possible. Within days, the five defendants and their lawyers met in the courtroom and compiled an initial list of requirements, with removing the death penalty as the first item. The lawyers submitted a joint list on Monday.

A guilty plea deal would represent a dramatic shift in a case that has been consumed by disputes over the CIA's treatment of the defendants. After their capture in Pakistan in 2002 and 2003, Mohammed and his co-defendants were held in secret CIA detention facilities where they were subjected to waterboarding, sleep deprivation, physical beatings, and other forms of abuse. Psychologists conducting interrogations for the CIA waterboarded Mohammed 183 times. Defense lawyers have pursued the argument that because of these actions, the U.S. government lost the moral and legal authority to execute the defendants. A military jury's recent reaction to descriptions of CIA torture in another case—condemning it as "a stain on the moral fiber of America" and urging clemency—may have influenced prosecutors' willingness to negotiate.

During the Trump administration, an earlier attempt at plea negotiations collapsed when Attorney General Jeff Sessions learned of the talks and called Defense Secretary James Mattis, demanding there be no deal. Mattis then fired the convening authority overseeing the case. In those earlier discussions, the defendants demanded they serve their sentences at Guantánamo, where they can pray and eat in groups, rather than at the supermax prison in Florence, Colorado, where federal inmates are held in solitary confinement up to 23 hours a day.

The Biden administration has signaled cautious openness to the idea. In early March, a lawyer at the National Security Council wrote to the chief defense counsel that the administration would not take a position on plea deals—neither endorsing nor discouraging them. The letter noted that reducing Guantánamo's detainee population, which currently holds 38 prisoners from the roughly 780 brought there between 2002 and 2008, could include resolving pending military commission cases through pretrial agreements if appropriate. However, the White House stressed it would not interfere with the process or prescribe what to do with any particular case.

Any plea agreement must be approved by the convening authority, currently Col. Jeffrey Wood of the Arkansas National Guard, who was appointed by the Trump administration. If the defendants plead guilty, they would have to work with prosecutors on detailed narratives admitting their crimes, known as stipulations of fact. They would then be brought before a military judge for questioning about whether they cooperated willingly. Under military commission law, a jury of U.S. officers—not a judge—would determine sentences, even if those sentences are capped in secret pretrial agreements. That sentencing phase could span months.

A core unresolved question is how many of the five defendants would receive life sentences without possibility of parole, and whether some of the accused accomplices with lesser roles would receive shorter sentences. Lawyers for two defendants—Mustafa al-Hawsawi, a Saudi prisoner, and Ammar al-Baluchi, a Pakistani national and Mohammed's nephew—have argued they were ignorant of the September 11 plot when they helped some hijackers with money transfers and travel arrangements from the United Arab Emirates.

A plea deal would force the Biden administration to modify its stated goal of closing Guantánamo and instead maintain it as a military prison for at least these five men. It would likely divide victims' families: death penalty advocates would be disappointed or enraged, while others troubled by the role of U.S. torture in the case and the endless delays might see it as a fitting conclusion. The talks are expected to continue through the month as both sides attempt to reach understandings to present to the convening authority.