The accused mastermind of the 9/11 terrorist attacks on the US will not enter a plea on Friday, after the US government blocked the implementation of a plea agreement reached last year.
Khalid Sheikh Mohammed, often referred to as KSM, was due to face his charges at a court-martial at the Guantanamo Bay naval base in southeastern Cuba, where he has been held in a military prison for nearly two decades.
Mohammed is Guantanamo’s most notorious prisoner and one of the last to be held at the base.
But a federal appeals court on Thursday night halted proceedings scheduled to consider the government’s request to drop the plea bargain, which it said would cause “irreparable” harm to both it and the public.
The three-judge panel said the postponement “should not in any way be interpreted as a decision on the merits”, but was intended to give the court time to receive full information and hear arguments “on an expedited basis”.
The delay means the matter will now fall to the incoming Trump administration.
What was supposed to happen this week?
In a hearing that began Friday morning, Mohammed was expected to plead guilty to his role in the Sept. 11, 2001, attacks, when hijackers seized airliners and crashed them into the World Trade Center in New York and the Pentagon outside Washington. Another plane crashed into a field in Pennsylvania after passengers fought back.
Mohammed was charged with crimes including conspiracy and murder, with 2,976 victims named in the indictment.
He previously said he planned “Operation 9/11 from A to Z” – coming up with the idea of training pilots to fly commercial aircraft into buildings and taking those plans to Osama bin Laden, the leader of the militant Islamist group al-Qaeda, in the mid-1990s.
Friday’s hearing was to be held in a courtroom at the base, where family members of those killed and journalists would sit in the gallery behind thick glass.
Why is all this happening 23 years after 9/11?
The pretrial hearings, held at a military court at the Navy base, have been going on for more than a decade, complicated by questions about whether the torture of Muhammad and other defendants while in U.S. custody tainted evidence.
After his arrest in Pakistan in 2003, Mohammed spent three years in secret CIA prisons known as “black sites” where he was subjected to simulated drowning or “waterboarding” 183 times, among other so-called “advanced interrogation techniques” that included sleep deprivation and forced nudity.
Karen Greenberg, author of The Least Worst Place: How Guantanamo Became the World’s Most Notorious Prison, says the use of torture has made it “virtually impossible to bring these cases to trial in a manner that respects the rule of law and American jurisprudence.”
“It is obviously impossible to produce evidence in these cases without using evidence obtained through torture. Moreover, the fact that these individuals were tortured adds another level of complexity to the prosecution,” she says.
The case also falls under military commissions, which operate under different rules than the traditional US criminal justice system and slow down the process.
The plea agreement was reached last summer, after about two years of negotiations.
What does a plea deal include?
Full details of the plea deal reached with Mohammed and his two co-defendants have not been released.
We know the deal means he won’t face the death penalty.
At a court hearing on Wednesday, his legal team confirmed that he had agreed to plead guilty to all counts of the indictment. Mohammed did not address the court in person, but participated with his team as they reviewed the agreement, making small corrections and wording changes with the prosecution and the judge.
If the deals go through and the court accepts the pleas, the next step would be to appoint a military jury, known as a panel, to hear evidence at a sentencing hearing.
Lawyers described it in court Wednesday as a form of public trial, where survivors and family members of those killed would have the opportunity to make statements.
Under the agreement, the families would also be able to ask questions of Mohammed, who would have to “answer their questions fully and truthfully,” the lawyers said.
Key to the prosecution’s agreement to the deals was an assurance “that we could present whatever evidence we felt was necessary to establish a historical record of the defendant’s involvement in what happened on 9/11,” prosecutor Clayton G. Trivett Jr. , he said in court on Wednesday.
Even if the plea goes forward, it will be many months before this process begins and the sentence is finally handed down.
Why is the US government trying to block petitions?
US Defense Secretary Lloyd Austin appointed the senior official who signed the contract. But he was traveling at the time it was signed and was reportedly surprised, according to the New York Times.
Days later, he tried to recall her, saying in a memorandum: “The responsibility for such a decision should rest with me as the superior authority.”
However, both the military judge and the military appeals board ruled that the deal was valid and that Mr. Austin had acted too late.
In another attempt to block the deal, the government this week sought intervention from a federal appeals court.
The legal filing states that Mohammed and the two others are accused of “committing the most outrageous criminal act on American soil in modern history” and that implementation of the agreement “would deprive the government and the American people of a public trial of the defendants’ guilt and the possibility of the death penalty, despite the fact that Secretary defense legally withdrew those agreements”.
After the deal was announced last summer, Republican Senator Mitch McConnell, then the House leader, released a statement describing it as “an outrageous abdication of the government’s responsibility to defend America and ensure justice.”
What did the victims’ families say?
Some families of those killed in the attacks also criticized the deal, saying it was too lenient or lacked transparency.
Speaking on the BBC’s Today Program last summer, Terry Strada, whose husband Tom was killed in the attacks, described the deal as “giving the prisoners at Guantanamo Bay what they want”.
Ms Strada, national chair of the 9/11 campaign group Families United, said: “This is a victory for Khalid Sheikh Mohammed and the other two, it is a victory for them.”
Other families see the plea deals as a path to convictions in a complex and lengthy process and are disappointed by the government’s latest intervention.
Stephan Gerhardt, whose younger brother Ralph was killed in the attacks, flew to Guantanamo to watch Mohammed plead guilty.
“What is the ultimate goal for the Biden administration? So they get a stay and it gets pulled for the next administration. To what end? Think about the families. Why are you prolonging this saga?” he said.
Gerhardt told the BBC that the deals were “not a victory” for the families, but that “it’s time to find a way to bring closure to this, to convict these people”.
Families at the base met with reporters when news of the postponement was announced.
“It was supposed to be a healing time. We’re going to get on that plane still with that deep feeling of pain – it just never ends,” said one.
Why is the process taking place in Guantanamo?
Mohammed has been in the military prison at Guantanamo Bay since 2006.
The prison opened 23 years ago – on January 11, 2002 – during the “war on terror” that followed the 9/11 attacks, as a place to hold terror suspects and “illegal enemy combatants”.
Most of those held here have never been charged, and the military prison has faced criticism from human rights groups and the United Nations for its treatment of prisoners. Most have now been repatriated or moved to other countries.
The prison currently holds 15 – the lowest number at any time in its history. All but six have been accused or convicted of war crimes.
