Sept. 11 Case Awaits Biden Administration’s Reply on Plea Deal

GUANTÁNAMO BAY, Cuba — A military judge has canceled pretrial hearings in the Sept. 11 case at Guantánamo Bay while prosecutors await a response from the Biden administration on a proposed plea deal that would avert a death-penalty trial for the five defendants.

The judge, Col. Matthew N. McCall, postponed the next hearings until at least Jan. 16 while “policymakers” decide whether to agree to conditions from the defendants concerning their post-conviction confinement.

His order, dated Oct. 13, quoted prosecutors as saying they did not expect a response until perhaps next year. Colonel McCall ordered the prosecutors to update him on the issue every two weeks starting on Dec. 16.

The judge did not describe the issues that are being discussed. But people with knowledge of the negotiations have said the defense is seeking a pledge from the government that Khalid Shaikh Mohammed, who is accused of masterminding the attacks, and the others will not be held in solitary confinement. The men, who were secretly held for three and four years in C.I.A. “black site” prisons, have also asked the government to establish a civilian torture treatment program for them.

The hearings had already been on hold since March, when prosecutors invited defense lawyers to negotiate a plea settlement for the defendants, who are accused of helping to plot the 2001 hijackings that killed nearly 3,000 people in New York, in Pennsylvania and at the Pentagon.

The trial has been delayed by higher court and logistical challenges, as well as defense lawyers’ efforts to declassify information about the C.I.A.’s torture of the defendants.

Prosecutors, defense lawyers and White House spokesmen declined to discuss which members of the Biden administration’s national security team were reviewing the issues. Prosecutors have said in court filings that they submitted a document describing the issues in March to Caroline Krass, the Pentagon general counsel who formerly served as the top lawyer for the C.I.A.

Also unanswered is whether the decision to offer some of the assurances would be made at the interagency or the cabinet level, or solely by President Biden. Nor would administration officials respond to questions about whether the issues had been presented to Mr. Biden or his national security adviser, Jake Sullivan.

The defendants were arraigned 10 years ago, but have no trial date. An earlier effort by a senior Pentagon official to reach a plea agreement without the prosecution’s involvement was scuttled during the Trump administration.

But this time the prosecutors initiated talks so that they would have a more central role in any plea agreement and sentencing hearing, according to people with knowledge of the negotiations who spoke on the condition of anonymity because they were not authorized to discuss the sensitive negotiations.

Prosecutors in the Sept. 11 case were alarmed by the dynamics at the sentencing hearing last year of another former C.I.A. prisoner, Majid Khan, a suburban Baltimore high school graduate turned courier for Al Qaeda.

Mr. Khan expressed remorse for joining the movement and also described his torture in C.I.A. custody. A jury of U.S. military officers ordered him to serve 26 years but wrote a letter urging clemency.

If the Sept. 11 prosecutors reach an agreement, they plan a more robust counternarrative to the tales of waterboarding and other abuse and cruel treatment by the C.I.A.

The office of the chief war crimes prosecutor, Rear Adm. Aaron C. Rugh, recently wrote to relatives of victims of the Sept. 11 attacks inquiring whether they would want to testify at sentencing, a sign that, behind the scenes, prosecutors are preparing for the possibility of guilty pleas that would avert a lengthy trial.

“The prosecution currently intends to ask the military judge to allow testimony from at least one family member of each of the 2,976 people who were killed on Sept. 11, 2001, as well as any individual who suffered his or her own injuries should they wish to testify,” the letter said.

Some victims’ relatives have expressed dismay that the case could end in a plea without the possibility of a death sentence. Others have welcomed the possibility of a resolution that would hold the men responsible for the crime.

Once the prisoners are sentenced, the military judge is released from the case and the Guantánamo court has no authority over whether sentencing agreements are honored. But the Biden administration’s position on the issues could become part of the plea, to give the prisoners something similar to a contract to take to a federal court if future prison staff members or governments breach the plea agreement.

Detainees at Guantánamo Bay are currently held in communal detention, and allowed to pray in groups and sometimes eat together and speak to one another in outdoor recreation yards — unlike during their years of isolation in the C.I.A. prisons and early in their stay at Guantánamo Bay. They want to be sure that will not change if they plead guilty.

Some of the defendants also say they require specialized treatment for brain injuries, sleep disorders and other traumas, which have been described in court hearings and filings.

The prisoners receive care from Army and Navy medical staff members who have mostly treated trauma-related issues with medication.

Scott Roehm of the Center for Victims of Torture, a service provider, said care “requires an integrative approach to both physical and mental health, delivered by specially trained, independent treatment providers who survivors trust.”

Mr. Roehm declined to say whether the organization, which is based in St. Paul, Minn., and trains people how to work with torture victims, had been consulted on the proposed program at Guantánamo Bay. He said it was important to give survivors “an environment in which they can begin to feel safe.”

The judge in the Sept. 11 case had initially scheduled 18 weeks of pretrial hearings in 2022. He has canceled all of them, in part because a new capital defender was awaiting a security clearance, but he has held closed hearings with individual defense teams on topics that other parties to the case are not allowed to hear.

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