Accused 9/11 terrorists avoid death row because of 'political hacks' who blocked a U.S. trial, ex-AG says

WASHINGTON — Former Attorney General Eric Holder on Thursday slammed the “political hacks” who blocked the trial of accused Sept. 11 terrorists in federal court nearly 15 years ago, saying those politicians owed an apology to the families of the victims of the attack for delaying justice against Guantanamo Bay detainees who Holder said would be “nothing more than a memory” had they been tried and convicted in the United States.

After years of proceedings in an largely untested military commissions system in Guantanamo Bay that has been described as “Kafkaesque” and has been mired by seemingly endless delays, the Pentagon announced Wednesday that accused Sept. 11 “mastermind” Khalid Sheikh Mohammed and two of his co-defendants, Walid Muhammad Salih Mubarak Bin ‘Attash and Mustafa Ahmed Adam al-Hawsawi, had reached a plea deal that will spare them from the death penalty.

Back in 2009, then-Attorney General Holder announced that Mohammed and four others would face trial in a federal court in Manhattan and promised to seek the death penalty in the case. But his plan quickly drew stiff political opposition from Republicans and many Democrats in Congress, who blocked the transfer of any detainees held at the military detention facility built on leased land in Guantanamo Bay, Cuba, from being transferred to America to face justice. Eleven years ago, in 2013, Holder said that Mohammed and his associates would have been “on death row as we speak” had the case gone to federal court as he proposed.Now, more than 20 years after Mohammed, also known as KSM, was captured in Pakistan and subsequently tortured by the CIA, Holder said military prosecutors got the best deal they could under the circumstances. But he blamed Congress for blocking a federal trial that would have resulted in swifter justice.

“The people responsible for structuring this awful deal did the best they could. They were dealt a bad hand by the political hacks and those who lost faith in our justice system,” Holder said in a statement to NBC News on Thursday.

“If my decision to try KSM and his confederates in the tested and effective federal court system had been followed they would be nothing more than a memory today,” Holder said. “Those who opposed my determination should apologize to those who lost loved ones on one of America’s darkest days. I hope the media will ask them if they will now admit the cravenness of their actions.”

Former New York City Mayor Rudy Giuliani — long before he tried to overturn Donald Trump’s 2020 election loss based on lies about voter fraud (resulting in pending criminal charges and a $148 million defamation verdict) — was at the forefront of opposition to a Sept. 11 trial in federal court in Manhattan. On Nov. 15, 2009, he appeared on three separate television shows to oppose Holder’s plan, claiming it was the federal court system — not the untested military commissions process — that would “go on forever.” A spokesman for Giuliani did not immediately respond to a request for comment.In hindsight, it’s very difficult to argue that the federal court system would have taken longer to produce an outcome than the military commissions, or to argue that Mohammed and his co-defendants would have received a more lenient punishment in federal court. Even if a federal trial had not resulted in the death penalty, Mohammed and his allies, if convicted, would have spent their remaining days in a federal supermax prison with severe restrictions as opposed to an expensive, customized facility in the Caribbean, where they have comparatively greater access to amenities than they would under the harshest restrictions the federal Bureau of Prisons uses for convicted terrorists.

That group includes Dzhokhar A. Tsarnaev, one of the brothers responsible for the Boston Marathon attack in 2013. Tsarnaev was found guilty in 2015, less than two years after the bombing, and has been sitting on death row in ADMAX Florence in Colorado, the supermax federal prison referred to as the “Alcatraz of the Rockies,” for the better part of a decade.

Meanwhile, the Guantanamo military commissions have puttered on at a glacial pace, with little notable progress until this week on crimes that, as of next month, will have been committed 23 years ago, in 2001.

Even Attorney General William Barr, who served under presidents Trump and George H.W. Bush, said he came around to the notion that federal trials would be a better path forward, writing in his 2022 book that it was a “disgrace” that the Sept. 11 perpetrators hadn’t been tried more than two decades after the attack.

“The military can’t seem to get out of its own way and complete the trial,” Barr wrote, calling the commissions a “hopeless mess” and saying that he’d even tried to move forward with bringing the Guantanamo detainees to America for trial in federal court in 2019 but ran into Republican opposition in Congress. Trump wanted to keep Guantanamo open and referred to the federal court system (where he’s now a criminal defendant) as a “joke” and a “laughingstock” when it came to convicting terrorists. But internally, Barr wrote, a 2019 review by Trump administration officials at the Justice Department concluded that they would “likely succeed in obtaining a conviction” in federal court.

“A stopped clock is right twice a day,” Holder said when asked about Barr’s evolution on the issue.

During the Trump administration, the Justice Department secured convictions against foreign terrorists in federal court, with Barr agreeing not to seek the death penalty against two former British citizens and Islamic State group members known as the “Beatles.” Both of the men — Alexanda Amon Kotey and El Shafee Elsheikh — were convicted and are now serving life sentences at ADMAX in Florence, alongside other terrorists like Tsarnaev.

On Thursday, Republicans issued statements that sought to blame Joe Biden’s administration for the plea deal, even though the White House has said it left the decision-making to the Pentagon. Senate Republican Leader Mitch McConnell, R-Ky., who opposed the plea deal, said it showed “weakness” in a statement that didn’t address Barr’s acknowledgment that federal trials — which McConnell opposed — would have been a better path forward.

Sen. Chris Coons, D-Del., told NBC News that he doesn’t “second guess” the prosecutors in the case and noted there were structural problems with Guantanamo from the outset.

“Look, the way that the Guantanamo detentions were set up from the very beginning made it difficult, if not impossible, for there to be a complete delivery of justice for the families of the victims of 9/11,” Coons said.

Sen. Richard Blumenthal, D-Conn., said he’s “long advocated that our federal court system is perfectly capable of conducting this kind of trial” and was well-suited to handling serious crimes.

“I’ve been trial lawyer long enough to know that hindsight is always 20/20,” he said. “But one of the reasons I advocated for federal court involvement was that it could more accurately and fairly provide for punishment in this kind of case.”

Sen. Chris Van Hollen, D-Md., who has urged the Biden administration to shut down the military detention facility at Guantanamo, told NBC News that the debate over military commissions versus federal courts had happened “a while ago,” but he wasn’t sure if a civilian trial would have ended with a different result.

“I believe that we should have had the option,” he said. “Whether that would have resulted in a different outcome is a separate question.”

Sen. Thom Tillis, R-N.C., said it’s easy to second guess prosecutorial decisions in hindsight, but that he was fine with a deal that would leave Mohammed and his co-defendants incarcerated for life.

“The guy’s been behind bars for two decades. He’s going to be behind bars for the rest of his life. I’m not going to sweat the details,” Tillis said. “There’s no clearer vision than the vision of hindsight.”

It’s unclear at the moment what a plea deal spells out for the future of the detention facilities in Guantanamo Bay. Former President Barack Obama, in his final hours in the White House in 2017, said that history would judge Congress for blocking Guantanamo’s closure, saying politicians had “placed politics above the ongoing costs to taxpayers, our relationships with our allies, and the threat posed to U.S. national security by leaving open a facility that governments around the world condemn and which hinders rather than helps our fight against terrorism.” Former Secretary of State Hillary Clinton wrote a memo in 2013 saying that closing Guantanamo was essential to “signal to our old and emerging allies alike that we remain serious about turning the page of GTMO and the practices of the prior decade.”

During the Biden administration, officials have engaged in quiet efforts to close Guantanamo, and the number of detainees was down to 30 last year from a peak of nearly 800 in the aftermath of the Sept. 11 attack.