Why the Self-Proclaimed 9/11 Mastermind Hasn't Seen Trial 21 Years Later

It's been nearly two decades since U.S. intelligence agents captured Pakistani militant Khalid Shaikh Mohammed, a top lieutenant of the Al-Qaeda terrorist organization and a self-proclaimed "mastermind" of the Sept. 11 terrorist attacks that left nearly 3,000 Americans dead. It's been more than 15 years since Mohammed was transferred to America's infamous detention camp at Guantanamo Bay in Cuba.

All those years later, it is still uncertain how much time is left to go until Mohammed— and others implicated in the execution of those attacks—will be sentenced for the crimes of which they stand accused.

Today, Mohammed—who could face the death penalty—and other top agents of Al- Qaeda remain behind bars, still mired in a legal struggle forgotten by almost all but their attorneys and the families still awaiting justice. Last month, pretrial hearings for several of those implicated in the attacks were canceled, with no makeup date in sight as America prepares for Sunday, the 21st anniversary of the attacks.

There are a multitude of reasons why the case has been delayed: changes to the court's operations tied to the COVID-19 pandemic; various scandals, including the government bugging the courtroom and attorney-client interview rooms; the attempted planting of a mole within a detainee's defense team; and the frequent turnover of military judges handling the case.

Guantanamo
Political activists gather in front of the Federal Building for a demonstration marking the 17th anniversary of the Guantanamo Bay prison camp in Cuba on January 11, 2019, in Los Angeles, California. The camp opened in 2002 in the aftermath of the 9/11 attacks. Frederic J. Brown/AFP via Getty Images

The biggest factor in the delay, however, has and always will lie with the federal government's use of torture on Mohammed and others at various "black sites" around the world, which legal experts say have thrown a wrench into any efforts to prosecute them.

One decade ago, former chief U.S. prosecutor at Guantanamo Bay Morris Davis—who led early efforts to prosecute Mohammed—said the decision to torture detainees likely discredited the U.S. military commission tasked with prosecuting them in the courts. Several years later, a Senate Select Committee on Intelligence released a comprehensive report detailing the extent of the CIA's torture programs abroad, ultimately finding they were torturing captives not for future prosecution—which would have been inadmissible in court regardless—but for intelligence information.

Though the federal government attempted to cover its tracks using FBI "clean teams" to re-interrogate the detainees in supposedly non-coercive environments, attorneys for the detainees argued there is no such thing as a non-coercive re-interrogation after that same government tortured them for years.

"Just saying 'Don't worry—we're FBI, not CIA,' is not going to make them less afraid of further abuse," David Luban, a Georgetown law professor and author of a 2008 white paper on the lawfare and legal ethics employed at Guantanamo Bay, told Newsweek.

The ripple effects of those decisions, legal experts say, are still being felt today. If obtained via torture, any of the evidence would be inadmissible in court—a fact that has pushed the federal government into years-long discovery battles as attorneys for Mohammed and others pursued specific details of the torture their clients endured in CIA custody. And the fact that torture has tainted almost every facet of the case has resulted in an impossible situation for both the federal government as well as the attorneys representing the detainees, giving the defense numerous opportunities to challenge the integrity of how the federal government built its case against their clients.

In legal filings, Luban said the defense has focused heavily on the similarities between the interrogations at the "dirty" black sites and the "clean" re-interrogations alongside the prolonged effects of torture on the detainees' psyche, arguing that the detainees were still in the state of "learned helplessness" when they were re-interrogated by the FBI.

This, Luban said, has led to even more drawn-out litigation over attorneys' access to witnesses like the psychologists who were consulted on the program or the CIA personnel who tortured the prisoners. But the biggest enemy to the government's case, others argue, is because the government potentially broke numerous laws it relied on to deliver justice.

"The truth is that, at this point, there is no realistic prospect of a trial, much less a fair one, in any forum," Scott Roehm, Washington director for The Center for Victims of Torture, told Newsweek. "The only way out of this sad mess is to do what the Biden administration and the accused are trying to do: negotiate a plea agreement. There is at least some chance that the plea agreement process can afford 9/11 victims and their family members a measure of truth and justice, and do so without trampling on defendants' rights."