WASHINGTON — Across four presidencies, the question of how to obtain a measure of justice in court for the attacks of 9/11 has vexed American officials. A military tribunal case against five Guantánamo Bay detainees accused of conspiring with the hijackers has spun its wheels for more than a decade, with no trial in sight.
Now it is the Biden administration’s turn. Prosecutors have proposed ending what could be more frustrating years of litigation, suggesting a deal in which the defendants would plead guilty in exchange for being spared the possibility of the death penalty. But prospects for resolving the case remain murky, underlining political and legal obstacles that have hardened in the generation since the attacks.
The White House is distancing itself from the negotiations, declining to weigh in, and leaving it to the Pentagon to decide how best to proceed. Officials there, however, are said to be uncertain they have the right to decide on a course of action with such major implications.
The issue remains politically fraught. Some relatives of the nearly 3,000 victims of the 9/11 attacks want a trial with the prospect, however distant, of executing Khalid Shaikh Mohammed, who is accused of being the mastermind of the attacks, and his four codefendants. Others oppose the death penalty on principle, have no faith that the tribunals will obtain justice or have become resigned to the idea that, because the defendants were tortured by the Bush-era CIA, capital punishment is unlikely.
Influential Republicans in Congress have opposed lifting legal restrictions on transferring detainees to a prison on domestic soil — a ban that makes it impossible to put the five defendants on trial before the more functional civilian court system.
For more than a decade, the case has been bogged down by seemingly ceaseless disputes.
Under President Barack Obama in 2009, Attorney General Eric Holder Jr. intended to bring the five prisoners to Manhattan, New York, for trial in federal court. But the plan collapsed amid a wave of fear after an unsuccessful terrorist attack that Christmas. Congress barred the transfer of the detainees onto domestic soil, and the Obama administration reluctantly brought the case before a military commission instead.
A decade later, under President Donald Trump, Attorney General William Barr decided that the Guantánamo military commissions system “had become a hopeless mess,” as he wrote in his memoir, and concluded that it should be abandoned. The observation was especially notable because in September 2001, as a private citizen, he had suggested the use of tribunals to President George W. Bush’s White House.
Under Barr, the Justice Department had begun a fresh look at the evidence and determined it could win a conviction in federal court. Officials intended to keep pursuing the matter as a capital case, but they did not analyze the likelihood of sustaining any death sentences upon appeal in light of the torture, according to a person familiar with those deliberations.
Barr asked senior Republican lawmakers to drop the transfer ban to allow a trial in federal court after all, arguing that it should be separate from the idea of closing the Guantánamo prison. (Trump had vowed to keep the prison open and lifted Obama’s closure order.) But congressional Republicans, who had invested heavily in undermining Holder’s plan a decade earlier, did not want to reverse course. The idea went nowhere.
Now, under President Biden, senior national security lawyers are wrestling with whether to endorse a plea deal. Prosecutors presented the question to the administration nearly a year ago, but the White House has so far steadfastly refused to weigh in, according to officials familiar with internal deliberations.
Instead, the question is currently being managed by the Pentagon’s general counsel, Caroline Krass. During the Obama administration, she was the general counsel for the CIA.
Late last year, Krass convened a secure video conference meeting with senior lawyers from several other agencies. All signaled provisional support for trying to reach a plea agreement, according to people briefed on the sensitive internal deliberations and who spoke on the condition of anonymity.
The circle of officials Krass has consulted is said to include Rebecca Ingber, a senior State Department lawyer and expert in international and national security law, and Matthew Olsen, the head of the Justice Department’s national security division.
In 2009, Olsen led an interagency task force that reexamined the roughly 240 detainees still at the prison and recommended who should be transferred, prosecuted, or held in indefinite wartime detention without trial.
Obama had established the task force as a first step toward closing the prison. The idea was to transfer to other countries as many detainees as possible, put on trial those who could be prosecuted, and house both convicts and those deemed untriable but too dangerous to release in a different prison inside in the United States. Congress blocked that plan, but Obama significantly reduced the detainee population. Today, only 35 prisoners remain.
The current discussions over a plea agreement do not address where the men would serve their sentences, which could be up to life in prison. For now, because of the transfer ban, they would stay at Guantánamo.
Instead, the talks have focused in part on how they would serve any sentence. The defendants want pledges that they will not be held in supermax conditions or solitary confinement — they are allowed to eat and pray together now — and will have periodic access to lawyers, according to people familiar with the proposed deal.
Some also want a civilian-run mental health program aimed at treating what they say are the continuing effects of torture from their Bush-era CIA interrogations: traumatic brain injuries, sleeplessness, and other disorders.