SCOTT DETROW, HOST:
Today is, of course, the 25th anniversary of the September 11 terror attacks. And the story that began that day in many ways still hasn't ended. My cohost this week, Sacha Pfeiffer, is an NPR correspondent who has been covering one aspect of that story for a very long time, and that is the creation of a U.S. military court in Guantanamo Bay, Cuba, for suspected terrorists. Sacha and I wanted to talk about the status of the 9/11 case, which, Sacha, as you know very well since you've been covering it for so long, still has not gone to trial.
SACHA PFEIFFER, HOST:
No, it has not. After all this time, that case is still pending.
DETROW: And five men charged with plotting the attacks, they have been locked up in Guantanamo for two decades.
PFEIFFER: Correct. All of them are being held in a prison camp within the U.S. Naval base in Guantanamo, and the five include the alleged mastermind, Khalid Sheikh Mohammed. They're accused of funding the attacks, training some of the hijackers, helping with travel arrangements and so on.
DETROW: And one fact that I think is lost is that on paper, at least, the case is still proceeding to trial even after these 25 years.
PFEIFFER: That is officially what is happening. For years and years and years, teams of lawyers and translators and investigators and many other types of court-related personnel have been going back and forth to Cuba for hearings. They fly on charter flights at great taxpayer expense. The court record at this point, Scott, is hundreds of thousands of pages long, and numerous judges have come and gone over the years.
DETROW: Which gets the most basic question in all of this, why has there been no trial?
PFEIFFER: Two main reasons, basically - I am going to play you some tape from a lawyer who's done a lot of work for Guantanamo prisoners. His name is Michel Paradis, and he explains the lengthy delay this way.
MICHEL PARADIS: I think the most obvious reason is that they're trying to try them in Guantanamo, in military commissions that were designed to achieve speedy justice with very limited rules, and what they have given us instead is interminable delay, endless pretrial litigation.
PFEIFFER: The military commissions he refers to - the military court - was basically invented from scratch after the 9/11 attacks. This case could have been tried in U.S. federal court, and many people think if it had, it would be long over by now. Our federal courts have successfully prosecuted countless terrorism suspects who are now in U.S. prisons, but our government put the military court in Cuba because they said they wanted it to be beyond the reach of U.S. law.
DETROW: Though, ultimately, the Supreme Court did say the U.S. Constitution does apply to Guantanamo.
PFEIFFER: Correct. And that has resulted in all sorts of fights over what evidence can be admitted, what's classified, and that gets to the other main reason this case is so hard to try, which is torture.
DETROW: Right. Because before these men were sent to Guantanamo, they were subjected to really brutal treatment in secret CIA prisons based overseas.
PFEIFFER: The black sites they were called. They were in countries like Afghanistan, Romania, Thailand, Morocco.
DETROW: And this was the infamous waterboarding, right? In addition to that, they were prevented from sleeping for days. They were put in these cramped coffin-like boxes. And they were physically slammed against walls, right?
PFEIFFER: Yes, mock burials, aggressive cavity searches - in fact, one of the defendants has been declared mentally incompetent to stand trial, and his lawyers say that's due to him having been tortured. The U.S. was trying to punish them, and it was also trying to get information out of them. There is still a debate, as you know, about how effective that torture was at getting any valuable intelligence. But once you torture someone, you make it very difficult to successfully prosecute them.
I want to play a piece of audio from a live taping this week of NPR's national security podcast Sources & Methods, hosted, of course, by our colleague Mary Louise Kelly. I attended that taping, and a panel of national security experts reminded the crowd how terrified the United States was right after the September 11 attacks. We thought more attacks were coming, maybe nuclear attacks. So as one of the panelists put it, the gloves did come off. Here's a different panelist, Stephen Hadley. He's a former adviser to President George W. Bush.
(SOUNDBITE OF ARCHIVED NPR CONTENT)
STEPHEN HADLEY: We knew at the time that we were going to authorize and do things and establish programs that when the crisis of the moment and the concern of the moment had died down, the American people may be uncomfortable with them. We knew that was a possibility, but we thought these were measures we had to do to get on top of the threat to prevent the country from being attacked again. And I think that was the right trade-off.
PFEIFFER: And that trade-off, right or wrong, has had consequences. As an example, if a confession is coerced, it cannot be used as evidence. And so far in the 9/11 case, two confessions have been thrown out by a judge because they were given under duress, and that weakens the prosecution's case. This next tape is from a Guantanamo defense attorney named Alka Pradhan.
ALKA PRADHAN: You can either take people and torture them - and hopefully, you don't do that because it's illegal - or you can have a fair trial for them. You can't do both.
DETROW: Given all of this, what are the prosecutors' current plans for moving forward without those confessions?
PFEIFFER: The government says it has other evidence like telephone intercepts, but two years ago, prosecutors said settling the 9/11 case was a better option than continuing to try to proceed to trial. Those prosecutors actually agreed to plea deals with the defendants that would let them avoid the death penalty in exchange for pleading guilty to murdering nearly 3,000 people.
DETROW: And then this is - this was such a shocking twist. Those plea deals were retracted.
PFEIFFER: Yes, they were. The defense secretary at the time, Lloyd Austin, rescinded them.
DETROW: I remember that because I was interviewing a family member of somebody who died in 9/11 about that moment, and he talked about how from his perspective, the case looked like it was finally going to be resolved. There was suddenly going to be some legal closure, and then suddenly, it was back to what he called the land of uncertainty.
PFEIFFER: And so many 9/11 family members feel that way. They are worn out by how long this has dragged on and by whiplash decisions like the plea deals being reversed. By the way, the plea deal situation has been appealed to the Supreme Court, although the court hasn't decided yet whether to hear the case. One family member I've interviewed a lot is Colleen Kelly. She lost her brother in the World Trade Center collapse, and this is what Colleen recently told me.
COLLEEN KELLY: You know, I'm tired of the peaks and valleys, so I just kind of roll along with it and see how it plays out. And there's so much that is in appeals right now, but these appeal decisions generally take years, not months. So we're stuck yet again.
PFEIFFER: And many attorneys I've interviewed believe settling this case is the only realistic way to end it, especially after Khalid Sheikh Mohammed's confession was tossed out just last month. Here is a former government attorney named Ian Moss, who's worked on Guantanamo issues for years.
IAN MOSS: That should tell us something - right? - that the best evidence that the government believed it has is no longer available. A plea agreement is the way out of that.
DETROW: Sacha, when people think Guantanamo Bay, I think they think of these specific defendants. They're not the only ones there, though, right? Remind us who else is there.
PFEIFFER: Right. At its height, Guantanamo had almost 800 prisoners. Now it's down to 15 men. Of those, seven are facing charges, including the September 11 defendants. Two have been convicted. The other six are known as forever prisoners. They've been held there for years without any charges filed against them. Half of the forever prisoners are cleared for release and still aren't being let go. And that lawyer we just heard from, Ian Moss, finds that outrageous.
MOSS: Is this who we are, that we just continue to hold six men without charge or trial indefinitely? Like, what are we doing to address that piece of it?
PFEIFFER: He told me nothing seems to be happening within the government to address that because the Trump administration doesn't seem interested in letting those men go. Now, previous administrations did negotiate with other countries to take prisoners at Gitmo cleared for release, but there is no sign that those negotiations are happening now, so the men are stuck there.
DETROW: Is there, on paper at least, a trial date for this 9/11 case?
PFEIFFER: Yes, there was a date set by a Guantanamo judge just last month. It's June 2028, but that could easily get delayed again, especially with so many legal issues still pending. But if it does happen, I hope to be there covering it.
DETROW: That is NPR's Sacha Pfeiffer, my cohost this week and also on (ph) NPR correspondent covering Guantanamo. Sacha, thank you so much.
PFEIFFER: You're welcome.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
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