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NEW YORK — Two decades after U.S. authorities locked Khalid Sheikh Mohammed away at a military detention center in Cuba, the purported mastermind of the Sept. 11 attacks sometimes seems barely any closer to being put on trial than the day he arrived.
A judge recently set a 2028 date for Mohammed to finally be tried before a military tribunal, but some lawyers predict it will never happen – not that year or any other year. They say the maze of legal issues that arose because Mohammed was tortured following his 2003 capture in Pakistan is too twisted to ever be straightened out.
A fleeting bid to put him on trial in a civilian court in New York City was shouted down years ago over security concerns.
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A plea agreement that would have kept Mohammed imprisoned for life, but spared him from a possible execution, began to collapse shortly after it was announced in 2024, and finally died for good last year.
“It’s all contaminated by politics and the lack of accountability on torture,” said Joshua Dratel, an attorney who played a part in assuring that Mohammed has proper legal representation.
In late August, the U.S. military judge who set a June 5, 2028, trial date for Mohammed and three others charged in the Sept. 11 attacks ruled that prosecutors could not use an alleged confession he made to the FBI in 2007. Those statements were deemed tainted because Mohammed was subjected to “enhanced interrogation techniques” overseas, including the simulated drowning technique called waterboarding.
While the ruling was a blow to the prosecution, the U.S. government decided not to appeal, in part because doing so could have further delayed a possible trial.
Meanwhile, Mohammed remains jailed in Guantanamo Bay, where he was brought on Sept. 5, 2006, following more than three years in secret prisons in other countries.
Victims’ families still hope a trial will happen
Terry Strada, whose husband, Tom, died at the World Trade Center on Sept. 11, said that she and other people who lost family members still hope a trial will someday happen.
“We very much want to see this come to an end at some point. We do want to see justice served. It’s just as important as 25 years ago,” she said.
But Strada, the national chair of the group 9/11 Families United, also said she would rather have Mohammed rot at Guantanamo Bay indefinitely than get behind a resolution that would involve dropping the death penalty as a possibility. Strada said she worries that if Mohammed is not executed, future U.S. leaders might someday be tempted to swap him for Americans held prisoner elsewhere in the world.
The death penalty, she said, “fits the crime and it would prevent that from ever happening. And that’s important to me.”
Mohammed was captured in Pakistan in 2003, accused of developing and directing the 9/11 attacks, as a leader of the Islamic militant group al-Qaida. Some of the delays in his legal proceedings have stemmed from his treatment after he fell into U.S. control. A U.S. Senate report pointed to his extended torture in CIA custody, including 183 sessions of waterboarding.
Plans for a civilian trial were dropped
For a time in 2009, it seemed Mohammed was headed to New York after then-Attorney General Eric Holder announced plans to try him and four other men charged in the Sept. 11 attacks in a Manhattan courthouse just blocks from the World Trade Center site.
Then-President Barack Obama, who had pledged to close the Guantanamo detention center, said Mohammed would face “the most exacting demands of justice.”
Almost immediately, opposition arose. Some critics predicted Mohammed would use a trial as a platform to spread hateful views of America and its allies. Others cited security concerns, saying it could again make New York a terrorist target. Former New York City Mayor Rudy Giuliani, a Republican, called the plan unwise and said it showed “a lack of concern for the rights of the public.”
Plans for a civilian trial were dropped.
“It was a charade in many respects,” Dratel said.
The military tribunal system, he said, has proven itself to be a worse solution, unable to function efficiently, without a proper structure and without fidelity to federal courts.
“Each time you reach an impasse, no one knows what to do,” he said.
David Raskin, a Washington lawyer now in private practice who would have led the government’s prosecution of Mohammed in New York if it hadn’t been abandoned, said in an essay published in The Washington Post on Wednesday that he is confident a civilian trial would have ended with a conviction. The military commissions, on the other hand, “became a defense lawyer’s dream,” beset by “endless litigation over their legality and procedures.”
“I predict there will never be a completed military commission trial for Mohammed and the other Sept. 11 defendants,” he said.
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