Contracts (Plea Deals) May Finally Resolve Some of the 9/11 Cases

Seems fitting to ease in to blogging again with some breaking news, even if it is not your typical contracts law fare.  More like Lawfare fare.

Back in May, I suggested that contracts, in the form of plea deals, were the best way to finally end the national shame of the detentions at Guantanamo Bay and the travesty of justice that ought to bring resolution to the cases against the people responsible for the attacks on the United States on September 11, 2001.  Now, Carol Rosenberg (right), the last reporter standing in Gitmo, brings us news in The New York Times that some of the 9/11 defendants have entered into plea deals. 

Khalid Shaikh Mohammed (KSM), Walid bin Attash, and Mustafa al-Hawsawi, who have been in U.S. custody since 2003, agreed to plead guilty to the murder of 2.976 people in exchange for a promise that they will be spared the death penalty.  They were supposed to stand trial in the military tribunals set up at Guantanamo Bay.  The defendants had been held there since 2006, but their trial has been mired in pretrial proceedings for ten years.  It was unclear whether they were ever going to be tried.  We know, for example, that KSM was waterboarded 183 times, and Carol Rosenberg suggests the possibility that the military judge might throw out their confessions, which would have been a key piece of evidence.  

As expected, relatives of some of the defendants' victims are upset that the death penalty will be taken off the table.  Others are relieved that there will be some resolution.  While there will not be a trial, there will be hearing, which will provide an opportunity for the victims' families and the public at large to get all of the information they might want to learn from the perpetrators. KSM (left) had previously bragged about having been the "mastermind" behind 9/11.  Unless he has changed his ways, we can expect that he will be happy to have a forum in which to explain his thought processes and the techniques he used to perpetrate mass murder.  It seems unlikely that he will have much to add to what he has already told his interrogators.  We will also learn from the defendants about their treatment while in custody.  What we hear will be ugly but again it seems unlikely that people who have been following the story of US treatment of detainees in the war on terror will be surprised by what they hear.  But who knows? Some of my students were probably in kindergarten when we learned about crimes perpetrated by Americans against detainees at the Abu Ghraib prison.  The hearing may revive interest and educate the public about this chapter of our recent history.

There were originally five defendants in the case.  One has been found unfit to stand trial due to mental illness.  A fifth, Ammar al Baluchi, might have to stand trial alone.  Carol Rosenberg reports that he conditioned his agreement to a plea on a demand that the U.S. set up a civilian-run torture treatment facility for the defendants in prison.  The government may not have been willing to commit to that, but perhaps the government has more leverage now that Mr. Baluchi stands alone.

This may be a farewell gift from the Biden administration.  These talks have been going on for over two years.  The Biden administration originally would not accept the defendants' terms.  Now that President Biden is not seeking a second term, perhaps he feels emboldened to shut down as much of Gitmo as he can so that future administrations will not have to deal with the continued embarrassment of  the indefinite detention of mass murderers who cannot be tried because the U.S. found compliance with legal norms inconvenient and thus tainted all of the evidence that might have been marshaled so that they could be convicted of their crimes.