By Carol Rosenberg & Charlie Savage
September 6, 2023
Read the full article here.
Adele Welty, whose son Timothy, a firefighter, was killed in the attack, said the recent debate made clear that the term “closure” cannot be applied to the magnitude of the loss of Sept. 11.
“I can’t imagine ‘closing’ 9/11,” Ms. Welty said. “It will always be there, an open wound we carry that will never heal no matter what happens with the military commissions.”
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President Biden has rejected a list of proposed conditions sought by the five men who are accused of conspiring in the Sept. 11, 2001, terrorist attacks in exchange for pleading guilty and receiving a maximum punishment of life in prison, according to two administration officials.
An offer by military prosecutors, made in March 2022, that would spare them death sentences if they admitted to their alleged roles in the hijackings, remains on the table, officials said. But Mr. Biden’s decision to reject additional conditions lessens the likelihood of reaching such a deal.
The case has been bogged down in pretrial proceedings in Guantánamo Bay, Cuba, for more than a decade, with no trial date set. It has been complicated by the C.I.A.’s torture of the defendants in their first years of custody, which has raised questions about the admissibility of key evidence prosecutors want to use at trial and the risk of any death sentence being overturned on appeal.
The White House was asked to weigh in on a proposed plea agreement about a year and a half ago. In talks with prosecutors, defense lawyers said Khalid Shaikh Mohammed, the accused mastermind, and four other defendants wanted certain accommodations, including assurances they would not serve their sentences in solitary confinement and could instead continue to eat and pray communally — as they do now as detainees at Guantánamo Bay.
The prisoners also sought a civilian-run program to treat sleep disorders, brain injuries, gastrointestinal damage or other health problems they attribute to the agency’s brutal interrogation methods during their three to four years in C.I.A. custody before their transfer to Guantánamo Bay in 2006.
An agreement to meet such conditions for the detainees, potentially for the rest of their lives, carried major policy implications likely beyond the authority of a criminal court or a particular team of prosecutors.
But the White House has been leery of involvement in the case, which is politically fraught. Some relatives of the 3,000 victims want a trial with the prospect, however distant, of having the perpetrators of the worst terrorist attack on U.S. soil sentenced to death. Others oppose the death penalty on principle, have no faith in the tribunal system, or have become resigned to the idea that, because the defendants were tortured by C.I.A., capital punishment is unlikely.
More than a year passed as prosecutors awaited an answer on whether the administration would consent to the proposed conditions, referred to as joint “policy principles” in court filings. A filing on Wednesday, which came just days before the 22nd anniversary of the attacks, indicated that the administration had finally said it would not.
“The administration declines to accept the terms of the proposed joint policy principles offered by the accused in the military commissions case, United States v. Mohammed, et al,” prosecutors said in the filing, according to someone who had been shown a copy. It was not yet posted on the Pentagon’s war court website.
Mr. Biden, according to the officials familiar with the matter, adopted a recommendation by the defense secretary, Lloyd J. Austin III. The court filing does not offer a rationale for rejecting the proposed conditions, according to the officials, who spoke on the condition of anonymity to discuss the sensitive matter.
One official said Mr. Biden did not believe the proposals, as a basis for a plea deal, would be appropriate, and the other cited the egregious nature of the attacks.
But Mr. Biden took no position on the general notion that a plea deal could eliminate the possibility of death sentences. At a military commission, a senior Pentagon official, called a convening authority, oversees the cases and decides such questions.
In the interim, the case has become more complicated. One of the accused plotters, Ramzi bin al-Shibh, had been excluded from the plea talks because of questions about his sanity. Last month, a military medical board ruled him incompetent to either face trial or offer a plea.
When hearings resume at Guantánamo Bay this month, the judge, Col. Matthew N. McCall, must decide whether to remove him from the case and go forward with proceedings against the other four defendants to determine what evidence might be used at their eventual trial. Suspending the proceedings would give medical personnel time to try to restore Mr. bin al-Shibh’s mental competence at the prison, possibly requiring a court order to involuntarily drug him.
Separately, according to family members of victims who have met with the chief prosecutor, Rear Adm. Aaron C. Rugh, and his team, prosecutors have been explaining that a guilty plea achieves “judicial finality,” or “judicial certainty” because a prisoner who pleads guilty gives up the right to appeal, among other things, the legitimacy of the court or the conviction.
Prosecutors had been explaining the mechanics of admitting guilt in court proceedings in exchange for life sentences in meetings with small groups of family members in New York, Boston and Florida since at least May. They sent out a two-page letter to reach a wider group last month. “It cannot be overstated that a guilty plea is conclusive evidence of guilt,” it said.
The possibility of a deal stirred emotions among the relatives of the victims of the Sept. 11 attacks — both those who envisioned a trial and death sentence and those who wanted a resolution that would not face the possibility of an appeal.
Adele Welty, whose son Timothy, a firefighter, was killed in the attack, said the recent debate made clear that the term “closure” cannot be applied to the magnitude of the loss of Sept. 11.
“I can’t imagine ‘closing’ 9/11,” Ms. Welty said. “It will always be there, an open wound we carry that will never heal no matter what happens with the military commissions.”
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