Republicans are criticizing President Joe Biden over a plan to offer plea deals to the 9/11 plotters — including admitted mastermind Khalid Sheik Mohammed — to avoid the death penalty.
Talks between prosecutors and defense attorneys for Mohammed and his four co-defendants at Guantanamo Bay, Cuba, where they have been held for two decades awaiting trial, could end up prohibiting prosecutors from seeking the death penalty, the Washington Examiner reports.
"Joe Biden's allies are negotiating lesser sentences for 9/11 attackers," tweeted Rep. Jim Jordan, R-Ohio, ranking member on the House Judiciary Committee. "If they won't punish terrorists, how can we trust them to lock up criminals in your neighborhood?"
"A day after the anniversary of 9/11 the Biden admin is doing the unthinkable — they are considering offering the terrorists, who organized those attacks, plea deals to escape the death penalty," the House Armed Services Committee's Republicans tweeted. "These terrorists killed thousands of innocent people — they deserve the death penalty."
"Khalid Sheikh Mohammed and his accomplices planned the Sept. 11 terrorist attacks [and are] responsible for the deaths of nearly 3,000 Americans," Rep. Mike Turner, R-Ohio and ranking member on the House Intelligence Committee, told the Washington Examiner in March. "It is unconscionable that military prosecutors would even entertain the idea of a plea agreement that removed the possibility of the death penalty."
Mohammed, known popularly as KSM, was captured on March 1, 2003 in Pakistan following an 18-month search. But he has been sitting in prison since then awaiting trial. Critics say it has become one of the war on terror's greatest failures. His and four co-defendants' planned trials before a military tribunal have been endlessly postponed.
The latest setback came last month when pretrial hearings scheduled for early fall were canceled. The delay was one more in a string of disappointments for relatives of the nearly 3,000 victims of the attack. They've long hoped that a trial would bring closure and perhaps resolve unanswered questions.
When asked about the case, James Connell, an attorney for one of Mohammed's co-defendants — one accused of transferring money to 9/11 attackers — confirmed reports both sides are still "attempting to reach a pretrial agreement" that could still avoid a trial and result in lesser but still lengthy sentences.
David Kelley, a former U.S. attorney in New York who co-chaired the Justice Department's nationwide investigation into the attacks, called the delays and failure to prosecute "an awful tragedy for the families of the victims."
KSM and his co-defendants were initially held in secret prisons abroad. Hungry for information that might lead to the capture of other al-Qaida figures, CIA operatives subjected them to enhanced interrogation techniques that were tantamount to torture, human rights groups say. KSM was waterboarded — made to feel that he was drowning — 183 times.
A Senate investigation later concluded the interrogations didn't lead to any valuable intelligence. But it has sparked endless pretrial litigation over whether FBI reports on their statements can be used against them — a process not subject to speedy trial rules used in civilian courts.
The torture allegations led to concerns that the U.S. might have ruined its chance to put KSM on trial in a civilian court.
But in 2009, President Barack Obama's administration decided to try, announcing that KSM would be transferred to New York City and put on trial at a federal court in Manhattan.
"Failure is not an option," Obama said.
But New York City balked at the cost of security and the move never came. Eventually, it was announced KSM would face a military tribunal. And then over a dozen years passed.
Kelley said talk of military tribunals two decades ago surprised many in the legal community who had been successfully prosecuting terrorism cases in the decade before. The concept of a tribunal, he said, "came out of the blue. Nobody knew it was coming."
Then-Attorney General John Ashcroft was not in favor of tribunals and had been supportive of the Manhattan federal terrorism prosecutions, he said.
Now, Kelley said, with the passage of time it will be much more difficult to prosecute KSM in a tribunal, much less a courtroom. "Evidence goes stale, witness memories fail."
KSM, at his tribunal hearing, conceded in a written statement that he swore allegiance to Osama bin Laden, that he was on al-Qaida's council and that he served as operational director for bin Laden for the organizing, planning, follow-up and execution of the Sept. 11 plot "from A to Z."
According to the statement, he also took credit for the 1993 bombing of the World Trade Center; an attempt to down U.S. jetliners using bombs hidden in shoes; the bombing of a nightclub in Indonesia; and plans for a second wave of attacks after the 2001 attacks targeting landmarks like the Sears Tower in Chicago and Manhattan's Empire State Building.
He also claimed credit for other planned attacks, including assassination attempts against then-President Bill Clinton in 1994 or 1995 and an assassination plot against Pope John Paul II at about the same time, the statement said.
The Associated Press contributed to this report.
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