The judge recently decided that K. Sh. Mohammed should finally stand trial before a military tribunal in 2028, but some lawyers believe this will never happen – neither that year nor any other. They argue that the maze of legal issues arising from the fact that K. S. Mohammed was tortured after his arrest in Pakistan in 2003 is too complex to unravel.
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The short-lived attempt to try him in a civilian court in New York many years ago was abandoned for security reasons.
The plea agreement, under which K. Sh. Mohammed would have been sentenced to life imprisonment but avoided the death penalty, began to fall apart soon after it was reported in 2024 and finally collapsed last year.
“Everything is tainted by politics and a lack of accountability for torture,” said attorney Joshua Dratel, who helped ensure K. Sh. Mohammed received proper legal representation.
At the end of August, a U.S. judge set a trial date of June 5, 2028, for K. Sh. Mohammed and three others accused in the September 11 attacks, ruling that prosecutors cannot use a suspected confession he made to the FBI in 2007. These statements were deemed illegal because K. Sh. Mohammed experienced “enhanced interrogation techniques” abroad, including simulated drowning.
Although this decision was a blow to the prosecutors, the U.S. government decided not to appeal it, partly because it could have further delayed a possible trial.
Meanwhile, K. Sh. Mohammed remains detained at Guantanamo Bay, where he was brought on September 5, 2006, after more than three years spent in secret prisons in other countries.
Victims’ families still hope the trial will happen
Terry Strada, whose husband Tom died at the World Trade Center on September 11, 2001, said she and other family members who lost loved ones still hope the trial will eventually take place.
“We really want this to end someday. We want justice to prevail. It is just as important now as it was 25 years ago,” she said.
However, T. Strada, chair of the national group “9/11 Families United,” also said she believes it is better for K. Sh. Mohammed to rot indefinitely at Guantanamo Bay than to receive a sentence that does not include the death penalty.
She said she worries that if K. Sh. Mohammed is not executed, future U.S. leaders might be tempted to trade him for Americans imprisoned elsewhere in the world.
The death penalty, she said, “fits the crime and would prevent that from ever happening. And that matters to me.”
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K. Sh. Mohammed was arrested in Pakistan in 2003, accused of planning and leading the September 11 attacks as a leader of the Islamist militant group al Qaeda.
Some of the delays in his trial arose from how he was treated after falling into the hands of U.S. officials. A U.S. Senate report states that he was subjected to prolonged torture in a CIA detention facility, including 183 sessions of simulated drowning.
Plans for a civilian trial abandoned
At one point in 2009, it seemed that K. Sh. Mohammed would be tried in New York. Then-Attorney General Eric Holder announced plans to try him and four other men accused in the September 11 attacks in the Manhattan courthouse just a few blocks from the World Trade Center site.
Then-President Barack Obama, who promised to close the Guantanamo detention center, stated that K. Sh. Mohammed would face “the strictest demands of justice.”
Almost immediately, opposition arose. Some critics predicted that K. Sh. Mohammed would use the trial as a platform to spread hatred against the U.S. and its allies.
Others cited security concerns, arguing that it could again make New York a target for terrorists. Former New York Mayor Rudy Giuliani, a Republican, called the plan unwise and said it showed a “lack of concern for public safety.”
Ultimately, plans for a civilian trial were abandoned.
“In many ways, it was a charade,” said J. Dratel.
The military tribunal system, he said, proved to be a worse option, unable to operate efficiently, lacking proper structure and fidelity to federal courts.
“Every time a deadlock is reached, no one knows what to do,” he said.
David Raskin, a Washington lawyer who would have led the government prosecution against K. Sh. Mohammed in New York if the plan had not been abandoned, said in an article published Wednesday in The Washington Post that he is confident a civilian trial would have ended in a guilty verdict.
The military commissions, on the other hand, “became a defense attorney’s dream,” where “endless disputes over their legality and procedures” took place, said the man now in private practice.
“I predict that the military commissions trial for Mohammed and the other September 11 defendants will never be completed,” he said.
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