Three 9/11 Defendants Agree to Plead Guilty on Guantanamo Bay

Sketch of the Guantanamo Bay courtroom by Janet Hamlin.

Editor's Note: This story was supported by the Pulitzer Center.

Guantanamo Naval Base, Cuba – The accused mastermind of the Sept. 11 attacks and two alleged co-conspirators have agreed to plead guilty in a deal to avoid the death penalty, government officials said Wednesday.

The leader of the plot, Khalid Shaikh Mohammad, and Walid bin Attash could enter their pleas as early as next week on Guantanamo Bay, with Mustafa al Hawsawi expected to enter his plea in September. Lawyers, family members of the victims and other participants are already convened at the base in the midst of a month-long hearing in what had become an increasingly interminable quest for some measure of justice.

Arraignment in the case was held in May 2012. No trial date had yet been set.

Details of the plea agreements were not immediately available as word of the pacts filtered through Guantanamo late Wednesday afternoon. The parties entered into plea negotiations in March 2022, but proposed deals fell apart 18 months later when the Biden administration declined to sign off on guarantees related to conditions of the accused conspirators' confinement, including communal living conditions, improved healthcare and treatment for their past torture by the CIA.

Hopes for plea deals resurged in recent months, as defense lawyers and prosecutors acknowledged in court that talks were continuing. Lawyers also noted that approval by senior Biden officials was not a technical impediment to deals. Under commission rules, a Pentagon official known as the “convening authority” has the sole discretion to enter into plea agreements. That official, Susan Escallier – who assumed the position shortly after the last talks failed – signed off on the three deals on Wednesday.

The remaining defendant, Ammar al Baluchi, is the nephew of Mohammad. His lead lawyer, James Connell, said that plea negotiations for his client are ongoing.

Al Baluchi’s team is still pushing for “an official recognition” of the torture he endured, Connell said. That recognition could include a government decision not to use the incriminating statements al Baluchi gave to the FBI after arriving on Guantanamo Bay in January 2007, following his prior so-called "enhanced interrogations" at CIA black sites. Defense teams have long claimed statements taken on Guantanamo by the FBI – the asserted "clean statements" – are tainted by the CIA interrogation program and the FBI’s role in it.

“And most important is treatment for the consequences of that torture,” Connell said of a requisite for al Baluchi to reach a plea deal.

The five original defendants, who also included Ramzi bin al Shibh, were first charged by a military commission in June 2008, during the administration of President George W. Bush. The Obama administration attempted unsuccessfully to move the case to New York federal court; it later recharged the defendants in a reconstituted version of the commissions on Guantanamo Bay, where the defendants have remained confined. Bin al Shibh was removed from the case last year after a finding that he was not competent to assist in his own defense.

The pretrial proceedings had increasingly focused over the past decade on whether statements made by the defendants to the FBI in 2007 on Guantanamo Bay could be admitted into evidence against them, given their past incommunicado detention and abuse by the CIA. Defense attorneys and prosecutors fought for several years over access to documentary evidence, as well as to witnesses from the CIA-designed enhanced interrogation program. The government's opposition to turning over much of the requested evidence and witnesses resulted in a litigation of unusual length, complexity and – at times – acrimony.

From the beginning of the historic case, prosecutors have said they were driven by demands for justice for the worst-ever crime committed on American soil, while the defense teams saw an effort to launder evidence gained through torture and conceal criminal conduct.

The suppression hearings opened for witness testimony in September 2019 under the third judge in the case, Air Force Col. Shane Cohen. The global pandemic halted the proceedings. In September 2023, the case’s fourth judge to preside over hearings – Air Force Col. Matthew McCall – resumed witness testimony.

McCall has since pushed an intense pace to take witnesses testimony, holding several sessions lasting a month or longer; another five-week hearing is scheduled to start in mid-September. He has repeatedly signaled his intent to rule on the suppression dispute before his planned retirement at the end of the year. 

In a meeting with reporters this session, the chief defense counsel, Army Brig. Gen. Jackie Thompson, expressed concerns about the workload on the teams. Two members of the defense organization had quit, he disclosed.

“This is more than they’ve signed up for,” Thompson said.

A trial in the 9/11 case was expected to last 12 to 18 months, following at least another year of pretrial litigation. As McCall progressed through this year's sessions, a reality check began to appear regarding the participants’ stamina and the strain on the facilities of the U.S. Naval Base. The lead prosecutor, Clay Trivett, had also referred to the pace as "crushing." Time had been taking its toll on the defendants, witnesses and other participants in health, memory and other strains.

Under the plea agreement, the military commission system will hold – at an unspecified date – a shorter sentencing trial for the three defendants who have agreed to plead guilty. During the last plea negotiations, lawyers said a sentencing trial was expected to last several weeks, at least, allowing prosecutors to put on evidence and witness testimony to the horrors of 9/11. Defense attorneys would also be expected to put on mitigation evidence, including details about their past abuse at CIA black sites.

In a letter to victim family members on Wednesday, prosecutors said that the three defendants have agreed to plead guilty to “the murder of the 2,976 people listed in the charge sheet” and “have also agreed to a process to respond to questions submitted by [family members] regarding their roles and reasons for conducting the September 11 attacks.”

The letter said that the sentencing hearing would not take place before summer of 2025. 

The earlier attempt at plea deals fell apart following months of opposition by political figures and by family members and survivors of the attacks, who sent letters to President Biden and Secretary of Defense Lloyd Austin. On Wednesday, Sen. Mitch McConnell, the Republican leader, issued a similar criticism of the deals finally reached this week.

“The only thing worse than negotiating with terrorists is negotiating with them after they are in custody,” McConnell said. “The families of their victims and the American people deserve real justice.”

Terry Rockefeller, a founding member of September 11th Families for Peaceful Tomorrows, which has been vocal in support of plea deals, said that guilty pleas ensure verdicts that are not appealable, following 12 years of pretrial litigation in which the government “could not even begin a trial.”  Rockefeller herself has attended about 20 of the more than 50 pretrial hearings in the case.

“It is not how American justice should unfold, but it can be a means to our future as a nation more firmly committed to the rule of law,” Rockefeller, whose sister Laura was killed on Sept. 11, said. She added that the day was one of “deep reflection about the long journey to judicial finality” for the victims and their families.

“Knowing that there are many families who may not welcome the plea agreements as I do, my heart goes out to them as well,” she said.

Port Authority Police Lieutenant John Ryan (no relation to the author) spent nine months as the day tour commander of rescue efforts at the World Trade Center. He said he had “mixed feelings” but supported the deal.

“I think it was a miscarriage of justice that it took this long to get to this point,” Ryan said, noting that the victims of Sept. 11 listed in the charge sheet do not include all of those who died from exposure from recovery efforts. “But I believe at this point it was the best outcome we could hope for.”

Testimony in what is now a hearing to determine the admissibility of al Baluchi’s 2007 statements to the FBI resumed Thursday. McCall will allow the defendants and their lawyers to observe witness testimony for the remainder of this hearing and the next, though they will no longer participate.

Trivett told McCall that Mohammad and bin Attash would be ready to enter their pleas next week, beginning on Wednesday. He said that al Hawsawi wanted to enter his plea at the next hearing set to begin Sept. 16.

On Thursday, Maria Jocys, a former FBI supervisory special agent detailed to the CIA’s counterterrorism section while the defendants were held at CIA black sites, testified as a defense witness. She was questioned by Defne Ozgediz, one of al Baluchi’s civilian lawyers.

Jocys testified that she was still detailed to the CIA in January 2007 when she accompanied the group of FBI agents who traveled to Guantanamo Bay to elicit the statements intended to be used in criminal cases. She told Ozgediz that she assisted in the interviews of Majid Khan, who pleaded guilty in a separate military commission for his role as a courier for al Qaeda.

Jocys was scheduled to give testimony in a classified session on Friday morning.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case.  His book on the 9/11 case is scheduled for publication early next year.