Judge Signals Impatience a Year Into Sept. 11 Case Plea Talks

A year has passed since prosecutors began plea talks with five defendants in the case over the attacks of Sept. 11, 2001, and the judge is showing signs of impatience with the lack of progress as the Biden administration examines aspects of the proposal.

Prosecutors, defense lawyers and the judge, Col. Matthew N. McCall, traveled to Guantánamo Bay last March but postponed a planned hearing to permit the sides to enter into plea negotiations. Since then, Colonel McCall has canceled each scheduled hearing, in part citing a joint request from prosecutors and defense lawyers to delay the proceedings while the administration evaluates the proposals.

At issue is a list of so-called “policy principles,” mostly the details of how the accused would spend the rest of their lives in prison. Prosecutors say the lead defendant, Khalid Shaikh Mohammed, conceived of the plot, and that the other four men had lesser roles as deputies or travel and finance arrangers for the hijackers.

Defense lawyers are seeking written assurances that the men would continue to have access to legal counsel and would not be put in solitary confinement, as they were during the years they were held incognito in overseas C.I.A. prisons.

In exchange, the defendants would plead guilty and offer a detailed explanation of their roles in the hijackings by 19 men who seized four commercial airplanes on Sept. 11, 2001, and crashed them into the World Trade Center, the Pentagon and a Pennsylvania field. Nearly 3,000 people were killed.

The judge wrote on March 8 that he was “disinclined to continue canceling commission hearings solely because of a lack of a decision as to these ‘policy principles.’” He ordered prosecutors to notify him by April 7 of when they expected to present him with all of the proposed substitutions and redactions of evidence that the government is generating. The U.S. intelligence community considers this information too sensitive for defense lawyers and an eventual jury of military officers to see.

The case has been thwarted in reaching a military trial since arraignment in 2012, as defense lawyers seek witnesses and other information from the C.I.A. about what was done to the prisoners in the so-called black sites between 2002 and their transfer to Guantánamo Bay in 2006. Rather, the focus of the pretrial proceedings has been on what, if any, evidence is untainted by torture and would be admissible in court.

Terms of the proposed deal are secret, and some talks have continued since last March. Government employees with knowledge of the discussions but who are not authorized to discuss them say Biden administration lawyers are examining granular issues.

For example, some of the prisoners and their lawyers want the Defense Department to agree to medical care for trauma resulting from their torture in the C.I.A. prisons, including mental and physical health care. The Navy doctor now responsible for overseeing their care testified in February that all the former C.I.A. prisoners have medical issues.

According to their lawyers, at least four of the defendants have sleep disorders, brain damage, gastrointestinal damage or other health problems linked to the program that waterboarded some of them and kept them chained nude in painful positions in dungeonlike conditions.

But the doctor testified recently in a different case that the Guantánamo prison has no specific program or expertise in treating torture victims. That is left to a military psychiatrist who has “a fundamental basic amount of training” in “assessing and treating patients who have been exposed to difficult conditions.”

In the Sept. 11 case, the judge has heard no testimony for more than a year, and the negotiating teams returned to the United States last March for a Ramadan recess. By then, prosecutors had forwarded the policy questions to the top lawyer at the Pentagon, Caroline D. Krass. They then agreed to delay the resumption of the hearings, while periodically advising the judge that “U.S. government officials are continuing to discuss the proposed policy principles.” No deadline has been set for a response from the administration.

Earlier this month, however, Colonel McCall ordered prosecutors to update him on the status of which potential case evidence the government had yet to give defense lawyers, a key stumbling block toward any trial.

But the delivery of discovery, as the material is called, is no simple matter. Much of it is classified, and controlled by the C.I.A., which requires prosecutors redact or substitute key information for national security reasons. The judge then has to review and approve the alternative evidence, or send it back to prosecutors as inadequate.

Joel Shapiro, whose wife, Sareve Dukat, was killed at the World Trade Center on Sept. 11, said “there is no consensus among family members, or the country as a whole, as to what should be done in the end. But doing nothing to move the process forward is even worse than the divisiveness that any result may bring. It does a disservice to the memory of the victims, their families and the country as a whole.”

The victims’ families have expressed a variety of frustrations at the current state of the proceedings — that the case has never reached a death-penalty trial, that the legitimacy of the case has been eroded by torture and, now, that prosecutors are seeking senior government support to a plea agreement that would provide, for some, resolution.

“I want to see these guys found guilty,” said Glenn Morgan, whose father, Richard, was also killed at the World Trade Center. For now, he said, they are “presumed innocent,” and “that’s a trauma that can be avoided” through a plea agreement.

“It should be in the hands of the lawyers, Judge McCall and the convening authority,” he said, referring to the Pentagon official who has oversight of the war court.

“We are infusing politics into a court decision, and the convening authority has the right to approve and disapprove plea agreements,” he said. “Nowhere does it say to ask some blockhead politicians for their approval.”

The Pentagon declined to comment on the state of deliberations. In January, a senior spokesman, Chris Meagher, said the considerations were complex and involved “numerous interagency equities.”