GUANTANAMO BAY, Cuba — As the United States prepares to mourn the 20th anniversary of the terrorist attacks of Sept. 11, 2001, another anniversary is being marked at Guantanamo Bay — the 15th anniversary of President George W. Bush announcing 9/11 mastermind Khalid Sheikh Mohammed and other al Qaeda members had been transferred to the U.S. naval base.
Fifteen years later, a trial still hasn’t happened.
In the two decades since 19 al Qaeda terrorists crashed hijacked planes into the World Trade Center buildings, the Pentagon, and a field near Shanksville, Pennsylvania, killing nearly 3,000 people, the five men believed to be responsible for the planning and execution of the plot have yet to stand trial at the specialized island war court.
Mohammed, dubbed “KSM” and described as “the principal architect of the 9/11 attacks, was a close ally of Osama bin Laden and was repeatedly waterboarded during numerous sessions while in U.S. custody.
KSM is being tried in a death penalty case alongside four co-defendants: his nephew, Ammar Baluchi, who sent money transfers to 9/11 hijackers inside the U.S.; alleged hijacking trainer Walid bin Attash; 9/11 facilitator Ramzi bin Shibh; and al Qaeda money man Mustafa Hawsawi.
The defense teams are seeking to throw out confessions that the five men made to FBI “clean teams” at Guantanamo Bay after they had been subjected to “enhanced interrogation techniques,” considered torture by many, at CIA black sites. Some al Qaeda operatives, such as Abu Zubaydah, are being held in indefinite detention at Guantanamo.
Bush touted the U.S. interrogation programs during a Sept. 6, 2006 speech from the White House’s East Room, arguing that the secretive efforts were necessary for U.S. national security and had stopped plots, also announcing publicly for the first time that 14 high-value detainees had been transferred to Guantanamo Bay.
“We’re now approaching the five-year anniversary of the 9/11 attacks — and the families of those murdered that day have waited patiently for justice. Some of the families are with us today — they should have to wait no longer. So I’m announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantanamo Bay,” Bush said to applause at the time.
“As soon as Congress acts to authorize the military commissions I have proposed, the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th, 2001, can face justice. … With these prosecutions, we will send a clear message to those who kill Americans: No longer — how long it takes, we will find you and we will bring you to justice.”
James Connell, the defense attorney for KSM’s nephew, Baluchi, lamented the 15-year anniversary during a small discussion with press in a conference room at a Guantanamo Bay motel.
“15 years ago, on Sept. 6, 2006, President George W. Bush announced that 14 men, including Ammar al Baluchi, had been moved from a CIA black site to the dark gray site at Guantanamo, over which the CIA would continue to have operational control,” Connell said. “Make no mistake. Covering up torture is the reason that these men were brought to Guantanamo, and the continuing cover-up of torture is the reason that indefinite detention at Guantanamo still exists. The cover-up of torture is also the reason that we are all gathered at Guantanamo for the 42nd hearing in the 9/11 military commission on the 15th anniversary of the transfer of these men to Guantanamo.”
Bush argued in 2006 that “this program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers” and that “they’ve determined it complied with our laws” and added: “I want to be absolutely clear with our people, and the world: The United States does not torture. It’s against our laws, and it’s against our values. I have not authorized it — and I will not authorize it.”
The upcoming 20th anniversary of 9/11, which comes as the Taliban rules Afghanistan once again, brought around 100 people, including victims’ families, the prosecution, five defense teams, military members, judicial staff, more than a dozen journalists, and others, to Cuba on a charter plane that took off from Andrews Air Force Base outside Washington, D.C., on Saturday.
The case has been delayed many times following unfavorable Supreme Court decisions under Bush and an abandoned effort by former President Barack Obama to try the men in a New York City federal court. After multiple scuttled military commissions, numerous retired judges, battles over classified information, and accusations of torture, the death penalty trial had been set for 2021, but COVID-19 upended that, and with yet another new judge starting this week, it is unclear where things now stand.
Approximately 780 total suspected terrorists are known to have been detained at Guantanamo Bay since 2002, and it is believed that 39 suspected terrorists remain, according to the New York Times Guantanamo Docket tracker. No new detainees are believed to have arrived since 2008. Bush transferred more than 500 of them out of the prison, and Obama transferred out an additional 144, including five high-ranking Taliban members who were part of a 2014 prisoner swap that secured the release of former Army soldier and deserter Bowe Bergdahl.
President Donald Trump transferred out Ahmed Mohammed Haza Darbi to Saudi Arabia to continue to serve nearly a decade more on his prison sentence after he pleaded guilty to a host of terrorism charges in 2014. Abdul Latif Nasser, a former fighter for the Taliban, was transferred to Morocco this year.
The 9/11 pretrial hearings were paused in February of last year as the prosecutors and defense teams battled over a variety of legal issues and took testimony related from those involved in interrogating the accused plotters, including multiple days of testimony by two of the three men known to have waterboarded KSM.
The judge must rule on whether confessions made to the FBI will be admissible.
Obama promised to close Guantanamo while running for office in 2008, and on his second day in office, he signed an executive order to close it within a year. But he faced steep opposition from Congress, among other hurdles, and didn’t deliver on the promise.
Then-candidate Trump promised in February 2016 that “we’re going to load it up with some bad dudes,” which he didn’t do as president. But Trump did sign an executive order in January 2018 asking then-Defense Secretary James Mattis to keep the prison open.
President Joe Biden has been working quietly to try to close Guantanamo Bay as well. The lawyer for KSM’s nephew said: “If 15 years of indefinite detention at Guantanamo have proved anything, it is that justice for America cannot coexist with abandonment of American democratic principles. … Now is the time for this administration to envision a post-Guantanamo world.”