My father, Brian Murphy, worked on the 105th floor of the World Trade Center and was killed when the first plane hit the North Tower on September 11, 2001. I was three years old at the time. Twenty-two years and four presidential administrations later, there has been no accountability for his death, nor the deaths of nearly three thousand others.
In May 2012, five men were charged in the military commissions at Guantánamo Bay with having planned and supported the 9/11 attacks. Over ten years and hundreds of millions of dollars later, the case remains stalled in pre-trial hearings, with no end or even a trial date in sight. The case has been stalled by legal disputes over discovery of information, especially concerning the torture of the five defendants; turnover of key legal personnel; a never-ending rotation of judges; and, most recently, pandemic-related delays.
In 2017, I joined Peaceful Tomorrows, an organization of family members of 9/11 victims who seek justice and accountability for the 9/11 attacks and for the torture that was subsequently carried out in its family members’ names. Peaceful Tomorrows has followed the military commissions since their inception and is the only organization of 9/11 family members that has sent a representative to each pre-trial hearing. Throughout the five years that I have been following the case, there has been little to no progress. The parties are no closer to a trial date than when the hearings began in 2012. In the meantime, many family members have died and others have given up hope that the case will come to an end in their lifetimes.
All of this seemed on the precipice of change last year when a potential solution finally emerged. In March, prosecutors proposed a deal in which the defendants would plead guilty, and in exchange, the government would take the death penalty off the table. Since then, all public hearings in the case have been canceled, as plea negotiations continue. However, in recent weeks the negotiations themselves have stalled. As prosecutors and defense attorneys wait for higher-up policymakers to resolve “policy principles,” the process of reaching an agreement is yet again delayed. Though the specifics have not been made public, these principles likely relate primarily to the conditions of confinement for the defendants as they serve out their sentences following their guilty pleas.
Years of torture for the defendants have made justice unattainable in any meaningful sense of the term. However, plea deals provide a means of achieving some semblance of justice—or at least judicial finality—and a way to bring an end to a legal process that has been, in the words of former Solicitor General Ted Olson in his recent Wall Street Journal op-ed, “doomed from the start.”
On a practical level, plea deals could pave the way toward a far quicker – and much more certain – resolution of the cases and provide an end to a failed legal experiment. The military commissions at Guantanamo are a system without legal precedent: in many cases, judges and attorneys have been forced to devise procedures from scratch, leading to countless logistical challenges and disputes over basic questions of law (for example: which constitutional rights extend to detainees in these proceedings?). Much of the pretrial hearings have focused on the C.I.A.’s torture of the defendants, and the military commission system has proven ill-equipped to grapple with complex legal challenges that resulted from prosecutors’ attempts to introduce evidence obtained from torture in court. Moreover, the remote location and makeshift nature of the war court at Guantánamo has led to costly repairs and further delays. Pre-trial hearings could drag on for an indeterminate amount of time. Even if a trial were to result, it could take years, plus the additional time of inevitable appeals, which could be years more. Plea deals provide an alternative to this lengthy and costly path, creating a final resolution and minimizing the burden and costs of endless litigation.
On a moral level, taking away the option of the death penalty is a reasonable exchange for the U.S. government’s immoral and illegal conduct in torturing the detainees. Each of the five defendants was held incommunicado at various classified black sites for years and brutally tortured in violation of both U.S. and international law. Many have injuries and medical conditions requiring intensive care as a result. Removing the death penalty option could be a partial acknowledgement of the abuse that the defendants have been subjected to.
Finally, we owe it to victims and their families. 9/11 family members have had no justice because of illegal and immoral decisions on the part of U.S. government officials. Plea deals could provide some measure of judicial finality for the families of the victims. There is no faith that tribunals will produce a verdict anytime soon, or at all. The defendants are aging— all five are over fifty years old, and Khalid Sheikh Mohamed, the alleged mastermind of the attacks, is almost sixty. Additionally, they each have complex and debilitating medical conditions, in large part as a result of the torture they experienced in U.S. custody, accelerating the aging process. If pretrial hearings proceed at this pace, there is a good chance defendants will die in prison without ever being tried in a court of law.
One potential benefit of the lack of legal precedent in the military commissions is that there is could be room for flexibility with plea agreements, and there could even be the potential for family members to be involved in shaping any potential agreements. Peaceful Tomorrows, for instance, has advocated for an opportunity for family members to hear statements the defendants choose to make at their sentencing hearing, and a mechanism by which defendants could answer family members’ questions.
Politics have interfered with justice at Guantánamo before. But this time, both prosecutors and defense attorneys are participating in plea negotiations in good faith. There is more bipartisan consensus than ever before that the military commissions have failed to provide justice for 9/11 families. Plea deals are a way out. The only thing standing in the way is political will within the executive branch. It’s time for that to change.