9/11 remains unresolved

MYRNA BROWN, HOST: It’s Thursday the 8th of August. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Myrna Brown.

PAUL BUTLER, HOST: And I’m Paul Butler.

First up: holding those responsible for 9/11 accountable.

This week, Defense Secretary Lloyd Austin revoked a plea deal for three men allegedly responsible for the terrorist attack on September 11th. The move comes after more than 20 years of pre-trial proceedings.

AUDIO: A joint Pakistani-U.S. operation led to Mohammed’s arrest. Authorities believe he’s the mastermind behind the September the 11th terrorist attacks.

BROWN: In 2003, authorities arrested Khalid Shaikh Mohammed—or KSM— he was one of about 1,200 people authorities detained. Many were released or deported, but a few were kept in US custody. Then in 2006…

AUDIO: Today President Bush acknowledged publicly for the first time the existence of secret overseas prisons run by the CIA. The president said top terrorism suspects had been interrogated at these prisons, giving the U.S. information that's prevented major attacks.

BUTLER: Those interrogations included techniques that some classify as torture. Then President George W. Bush said KSM along with 13 other suspected terrorists would be moved to the Guantanamo Bay detention camp and asked Congress to create military commissions to try the prisoners.

BROWN: Since then, the prisoners’ cases have been passed from military court to civilian court and back again, all while being detained at Guantanamo. Then, last month a Pentagon official authorized a plea deal.

AUDIO: The men agreed to admit to conspiracy charges in exchange for a possible life sentence after a possible death sentence was excluded.

BUTLER: But some survivors and political leaders said that wouldn’t be justice.

AUDIO: Terrorists to do not get deals. Never have in this country, never should.

BROWN: Michael O’Connell dug victims out of the rubble after the 9/11 attack. He told Fox News that after witnessing people jumping out of buildings, the terrorists shouldn’t get to live.

So, last week, Defense Secretary Austin seemed to cave to mounting pressure and rescinded the plea deal.

BUTLER: What happens now and why has this case taken so long to litigate?

Joining us now to talk about it is Steve Vladeck. He was co-counsel for one of the men arrested following 9/11. Now he’s a professor at Georgetown University School of law.

BROWN: Steve, good morning.

STEVE VLADECK: Thanks for having me.

BROWN: Steve, let me start with the obvious question for many people: if it’s been more than twenty years since KSM allegedly planned the 9/11 attacks, why haven’t he and his co-conspirators been sentenced yet?

VLADECK: It's a good question. I mean, we might even extend it to why haven't they been tried yet? So, you know, we're now in what is basically the third different round of military commissions at Guantanamo. And you know, first there was an effort to get these off the ground in early 2003, 2004. The Supreme Court slapped those efforts down in 2006 in the Hamdan case, where I was one of the lawyers who represented Hamdan. Then there was an effort by the Obama administration in 2009 to move the 9/11 trial out of Guantanamo and into the federal civilian courts in New York. That was abandoned after, you know, heated pushback from some of the victims and from Republican politicians. And really, for the last 15 years, Myrna, we've been in this, you know, quagmire, where the torture of the defendants, where the, you know, the government's behavior has just slowed all of these proceedings down to a crawl. And where, I think, for the last five or six years, the assumption has been that the only way we were ever going to get some kind of resolution was a plea deal, you know, which we had, seemingly for a moment last week, and then it blew up.

BROWN: Lots of obstacles. After hearing about the plea deal, I was surprised to hear that the person rescinding the agreement wasn’t a judge, but the Secretary of Defense, Lloyd Austin. What does he have to do with this case?

VLADECK: Yeah, so you know, Congress passed, in the response to the Supreme Court's Hamdan decision in 2006, a statute known as the Military Commissions Act, or the MCA for short. And one of the things that Congress tried to do in that statute was make the military commissions look like a weird stepsister to courts martial, the military courts that we use to try service members for crimes that they commit. And in that system, it's pretty common to have the commanders, you know, the sort of the more senior officials in the military, up to and including the Secretary of Defense, serve as what's known as the convening authority, the person who basically takes the position of a grand jury in an ordinary civilian case, but also with some oversight over the prosecutors as well. And you know, borrowing from that, we've had a succession of convening authorities in the military commissions. This is now the second time that a convening authority has been basically strong-armed and overridden by the Secretary of Defense because of their efforts to make the 9/11 case, you know, go away, to plead it out. And I think, you know, now this is going to give folks a lot of pause before there'd ever be a third try.

BROWN: Steve, you mentioned you were part of the legal defense team that brought the case of Osama bin Laden’s former chauffeur Salim Ahmed Hamdan to the Supreme Court in 2006. At issue was whether the military commission created after 9/11 had the necessary authority to try crimes in the War on Terror.

The Supreme Court said the commission didn’t comply with U.S. law in how it prosecuted Mr. Hamdan, and that because it kept some information classified, his trial was illegal.

Steve, does that case have any bearing on how a trial for KSM and others would be conducted?

VLADECK: Not much. I mean, so part of the problem is that Congress responded to that ruling by trying to reinvent the wheel, and so the Military Commissions Act is Congress's effort to say, okay, Supreme Court, we hear you. You know, the we had not provided the right authority for all of this in the immediate aftermath of 9/11, but now we are. But guys, here we are, you know, 18 years after Congress passed that statute, and there are still some pretty fundamental questions about the statute that the courts have never answered. And so again, you know, when folks ask themselves, how is it 2024 and we're still having these conversations, part of it is because, you know, every time there's been a step like this where it seemed like we were getting a compromise, some kind of resolution that was not great for everybody, but sort of a little bit of everything, someone pushed back. And I think it's been this desire to have some kind of absolutist solution to Guantanamo. That's why here it is 2024 and there are still 30 men at the Naval base there, including the folks who are in these seemingly interminable military commission proceedings.

BROWN: Looking ahead, do you see any end in sight for this situation? What do you think it will take to bring KSM and others to justice for planning acts of terror?

VLADECK: Yeah. I mean, you know, the question of what is justice at this point is obviously deeply fraught, and I think folks are going to have very different answers. I guess, my own view—and I come at this, you know, having been part of this process for a short period of time 20 years ago—is that justice is some kind of solution where we're not still talking about the ongoing military commission trial of KSM in 2034. And given all of the baggage in this case, given the history, given the torture, given the gravity of the charges against KSM and the other defendants, it seems like the only real path to justice at this point is for everyone to accept that there's no perfect solution. That's why I had thought that the plea deals for at least three to five defendants were a first step toward that solution. Now that those are off the table because of Secretary Austin, it's not at all clear to me how we get out of this mess, and I'm pretty sure it's not clear to the government either.

BROWN: Steve Vladeck is a professor at Georgetown University Law School. Steve, thank you for your time!

VLADECK: Thank you.

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.