Biden Administration Quietly Negotiates Plea Deal with 9/11 Terrorists

M arking the solemn annual observance of al-Qaeda’s killing of nearly 3,000 Americans in the 9/11 atrocities, I described the conundrum we’ve wrestled with in the 20-plus years since: What do we do about terrorists who should be put to death but can’t be tried?

Very quietly, President Biden appears poised to answer: We plead them out, taking the death penalty off the table in hopes that a military commission will sentence them to life in prison. (See here and here.)

The Biden administration has been edging toward this resolution for a long time. It may be the least bad alternative, but it will be deeply unpopular — infuriating not just most of the families of 9/11 victims but most Americans, period. Consequently, although all that appears necessary to close the deal is a green light from the president (or, knowing Biden, a green light from some subordinate with tacit presidential approval, so that Biden can distance himself from any blowback), the green light won’t be given until after the November 8 midterm elections.

To repeat what I contended back in September, the basic problem here is our assumption that wartime enemies who barbarically mass-murder civilians in utter violation of the laws of war must be given the benefit of an American trial, conducted under due-process standards that, though importantly different in some ways when used in a civilian criminal trial as opposed to a military proceeding (in this instance, a commission authorized by statute), remain similar in both contexts. Much of the intelligence by which we know wartime enemies are guilty is neither admissible under such standards nor, as a practical matter, capable of being introduced without endangering national security (mostly because it would require disclosure of intelligence sources and/or methods that are essential to our defense).

Moreover, even if we put aside the inhumane interrogation methods to which the 9/11 jihadists were subjected, in a trial worthy of the name, confessions are not admissible if they were coerced in any way — i.e., if the defendant was induced to answer by compulsion that overbore his will, even if the compulsion did not amount to torture or inhumane treatment. As a result, to the extent that the prosecution’s case hinges on confessions, those confessions won’t be allowed into evidence at trial, even if we are confident that they were true.

Ergo, the problem I outlined a few weeks ago:

The brute facts are that we have five terrorists charged in the 9/11 attacks, with no prospect, after 21 years, that the trial will get started anytime soon. Even if the trial were somehow to commence in the next two to three years, there is no guarantee that it could be brought to a successful conclusion. If it did, estimates are that it would take a year, after which the appeals process would start . . . and continue for a few more years. And that presupposes that the terrorists have been convicted and sentenced to death, of which there is no assurance.

To get guilty pleas, the Biden administration will have to agree not to seek the death penalty. It will also have to make other concessions: The terrorists are likely to remain at Gitmo, notwithstanding Biden’s eagerness to shut the detention camp down; they will not be held in solitary confinement and will be permitted interaction with one another, including communal prayer; and to the extent that they are undergoing medical treatment as a result of the interrogation tactics used against them, that treatment will continue. The terrorists need the Biden administration to agree to these conditions explicitly so that they will have a legal claim to file in federal court if another administration reneges on Biden’s deal in the future.

As I’ve previously observed, Biden plays a cynical game regarding the death penalty, assuring his progressive base that he is against it and refuses to administer it, while telling the rest of the country that he defends its legal validity (as he did in the case of Boston Marathon bomber Dzhokhar Tsarnaev). If past is prologue, the president will brag to Democrats that he took capital punishment off the table in the 9/11 case, while simultaneously grousing to everyone else that he had no choice: If he’d insisted on keeping it in the case, there would have been no guilty pleas, no prospect of a trial any time soon, no assurance that the military commission would vote to impose the death penalty, and no guarantee that such a verdict would be upheld on appeal. Though Biden will have political motivations to say all these things, that will not make them untrue.

We should note that though it seems inconceivable that the United States government would ever release Khalid Sheikh Mohammed and his four co-defendants, or agree to their transfer to another country, there is no guarantee that the military commission will impose life sentences on them. Unlike in the civilian justice system, the presiding judge does not impose sentence in a military commission — that is done by the commission (the officers who sit as a jury).

I believe it is highly likely, given the heinousness of the acts involved and what the commission will hear in the way of testimony from the 9/11 victims’ families, that life sentences will be imposed. But it is not a certainty. As Carol Rosenberg’s report in the New York Times notes, in the case of an al-Qaeda courier, the commission ordered a 26-year sentence (the minimum) and then added a letter urging clemency to the military official who will review the case.

Obviously, the jihadists at issue in the 9/11 case are not mere couriers. But Biden’s deal will open up the possibility — however slight — that they could be treated as if they were.