Brian Lehrer: Brian Lehrer on WNYC on the September 11, 2023. Now we turn to another consequence of 9/11 that has been in the news lately. Guantánamo Bay, the US Military prison in southeastern Cuba, where people accused of crimes in connection with the 9/11 attacks are being considered for a plea agreement that would spare them the death penalty but give them life in prison. Last week, President Joe Biden rejected a list of conditions from those Guantánamo detainees. The five men were seeking care for torture-related trauma and to avoid solitary confinement. So far, that aspect of a potential plea deal has been rejected by the President.

In March of last year, military prosecutors sought to make that plea with the five men that would spare them death sentences for a guilty plea in their alleged roles in aiding the 19 men who actually hijacked passenger planes and crashed them into the World Trade Center, the Pentagon, and a Pennsylvania field on September 11, 2001. It's been 21 years since Guantánamo, or Gitmo, as it's also known, was first used to house primarily Muslim militants and suspected terrorists captured by US Forces, not just who were related to 9/11, but in Iraq, Afghanistan, and other nations in the Middle East.

Since 2002, roughly 780 detainees have been held at Guantánamo. Four years later, the Bush administration came out with memos justifying what they called enhanced interrogation that other people call torture. Certainly, human rights advocates call it that. Senator John McCain and Lindsey Graham called it that, placing detainees outside of the US. For those of you who don't know the history, that's the whole point of Guantánamo Bay.

It's outside the 50 states or US territories, therefore, it allowed the Bush administration to circumvent many legal and ethical regulations and practices like holding prisoners indefinitely and without charge, classifying them as terrorists, which puts them outside the protection of the Geneva Conventions, and more. 30 such people remain there. Joining us now to discuss the politics of Guantánamo Bay and the recent news about this potential plea agreement is Carol Rosenberg, New York Times reporter who's been covering Guantánamo since the very beginning. Carol, thanks for coming on again. Welcome back to WNYC.

Carol Rosenberg: Thank you so much for the invitation. It's a sad day.

Brian Lehrer: Let's begin with this news. Some people might be thinking, "Wait, we're still prosecuting the men who allegedly assisted the 9/11 attackers?" You report this is all just pretrial at that. There's not even a trial date yet set. Remind everybody, who are these men and what did they allegedly do?

Carol Rosenberg: These are five men who were picked up in the year to year and a half following the attacks in Pakistan who are accused of being conspirators in the attacks, who are accused of either training, financing, facilitating, I think in some instances, selecting those 19 hijackers who took control of those passenger planes on September 11, 2001 and drove them into the buildings and ground.

The best known among them is probably Khalid Sheikh Mohammed, who after many years disappeared into the CIA black sites, told a US Military board at Guantánamo that he had planned the attack, the operation from A to Z, and came out of four years, three and a half years of CIA custody, including waterboarding and other torture techniques, supposedly bragging about his role in it.

At issue, and I'm sure we'll get there in this pretrial, there's no military jury been selected. The men have been at Gitmo since September 2006. At issue is whether anything they confess to at Guantánamo Bay after four years in CIA custody, four years disappeared with no lawyers, and what you call enhanced interrogation techniques, most people call torture, was used on them, whether anything they confess to is admissible in a court of law. The prosecutors in the case maintained that these were voluntary confessions and the defense lawyers said they were anything but, that they were groomed and conditioned through sleep deprivation and violence and isolation and years of being disappeared, frankly, to tell their captors what they wanted to hear.

Through the years, what's been going on in this pretrial is a struggle for information about that program to give the judge, a military judge, sufficient information to one by one, individually decide which of the confessions would be admissible. This has just gone on for years for a number of reasons which we can talk about. Five men are accused. Most recently, before we even talk about the latest zig or zag of the plea discussions, a sanity board put together of US military mental health experts found one of these five men not competent to stand trial. All these years later, it looks like when we go back to court next week at Guantánamo Bay, it will be four rather than five men in the case.

Brian Lehrer: In addition to that, we're talking about the enhanced interrogation that many people call torture. You report that just last month, a judge threw out a confession in the bombing of the USS Cole, which was apparently by Al Qaeda before 9/11. Can you tell us more about that case and what you think its implications will be for these 9/11-related cases?

Carol Rosenberg: Certainly. There are two capital cases at Guantánamo Bay, two cases that seek the death penalty for alleged Al Qaeda plotters, men who were captured in 2002 and '03 and disappeared into the black sites. The USS Cole case has a single defendant, a Saudi man named Abdul Rahim al-Nashri. He is accused of assisting the suicide team of two bombers that pulled up alongside the USS Cole warship in October 2000 and blew themselves up on a skiff loaded with explosives.

Because he's one, single defendant, because he was charged really a year before these five men in the 9/11 attacks, he's been on a bit of a faster pace. The judge in the case decided he received enough information to rule whether his so-called confession, those statements I was talking about, made at Guantánamo just months after they came out of the black sites, could be used at his death penalty trial. The judge, an army colonel, said it could not.

He said it was not voluntary. He said literally any resistance he had to saying anything but the narrative that the FBI agents who, quite honestly, questioned him in a friendly, nonviolent manner, but any resistance he had had been literally beaten out of him in years in CIA custody. No military commission case, which is what they call them at Guantánamo Bay, is a precedent for another.

It's a very similar fact pattern. It's very similar process. These confessions they made in early 2007 at Guantánamo are so crucial to the case, key evidence that the prosecutors in the USS Cole case are going to appeal and try to get those confessions back in, the statements that this man, Mr. Abdul Rahim al-Nashri, made back into the trial because they seem to need it to ever present his case to a military jury and then seek the death penalty. What's important about it is we've seen the process through on one of them, and we know how far away we are from that ruling in this 9/11 case.

Because there's five defendants, well, now we think there's four, and each one of those confessions must be examined. Each one of their journeys through the black sites of the CIA are still being explored through what they call discovery motions, trying to get documents and evidence, and witnesses, by defense lawyers through the judge seeking more information from the CIA.

It's just taken so excruciatingly painful, so long that coming back to what you mentioned at the top, the prosecutors, 18 months ago, frankly as a surprise in the 9/11 case, said to the defense attorneys, would the men consider pleading guilty, avoiding a trial, and exchange for life in prison rather than the possibility of a death sentence? Because the trial is so far away and the evidence is still in much debate and negotiations ensued.

That came after a 500 and some odd day closure of Guantánamo for COVID. There have been judges and capital defense lawyers who've come and gone through retirement, health issues, age issues, and there's no working date to try these men who are accused of conspiring in those attacks that we are remembering today.

Brian Lehrer: Listeners, if you're just joining us, we're talking in this segment with Carol Rosenberg, New York Times reporter, who's been covering Guantánamo Bay, the way it was used by the United States starting in 2002 as a place to hold people who the United States government considered terrorists connected to 9/11 or other Islamist extremist terrorism acts related to Afghanistan or Iraq or elsewhere in the Middle East.

By holding them at Guantánamo, which is outside the confines of the United States, the government wasn't subject to the usual laws, the usual rights and responsibilities that would apply to people accused of crimes. We can get--

Carol Rosenberg: These men are-- So sorry.

Brian Lehrer: Well, I'll get you right back in there, Carol. 212-433-WNYC is our phone number. If you want to call in with a comment or a question, 212-433-9692 or write a text to that phone number if you'd rather text than call in. I think I know what you were about to say, Carol. I think I was just about to ask you a question about it, but go ahead.

Carol Rosenberg: One thing I'd just like to clarify is the 780 men who went through Guantánamo Bay were not predominantly accused of crimes or war crimes or accused of being terrorists. They were characterized as what they called enemy combatants. That's really a prisoner of war in an irregular war, which is this war on terrorism. Guantánamo Prison opened four months to the day after the 9/11 attacks, and the US military chose to bring men and boys there off of what they called the battlefield, so out of Afghanistan, as prospective interrogatees, people to get what they called actionable intelligence to find out more about Al-Qaeda plots and to treat them as irregular POWs.

Just to understand, the five men who were accused of the 9/11 attacks and the Saudi guy who's accused of the Cole attack are not the norm. They're the most unusual people who went through Guantánamo and who remain. There are 30 men there today and only 11 with criminal charges. The rest are seen as, like I said, these war prisoners, unusual war prisoners. They have been released through the years to rehabilitation programs, resettlement, repatriation, and what we have today are 30 men there, half of whom were not brought there after the 9/11 attacks.

Brian Lehrer: That is exactly what I was going to ask you about. As you've reported, three detainees are held in indefinite law of war detention and are neither facing tribunal charges nor being recommended for release. That is such an unusual, and to many people, no matter what you think of the crimes that they may have allegedly committed, and certainly not to give any sympathy to people who may have participated in 9/11 or anything like 9/11 and other instances, it's troubling to many Americans that this category even exists. Can you define that for us a little bit more? What does indefinite law of war detention mean?

Carol Rosenberg: Some years ago, I nicknamed, called that category the forever prisoners. What it says is they're not accused of committing crimes. They're not considered war criminals. They're considered prisoners of this forever war. A war that started with the war on terror with Al-Qaeda. One could say that the leader of Al-Qaeda, one did, was Osama bin Laden, but he's dead.

It is the kind of war for whom there's no one on the other side to surrender, and there's no such thing as an exchange of prisoners. They have these three men for whom they don't believe they are crimes they could be accused of, but who were taken prisoner. The term of art is they're considered too dangerous to be released, too dangerous to be transferred, meaning there's no country that will take them in as others have and provide them with rehabilitation, resettlement and monitor their activities.

They're down to three, which is extraordinary. The United States made a decision in those early days, and they told us that they sent the worst of the worst to Guantánamo Bay, but it's not true. They sent the people they considered to be the worst of the worst to the CIA black sites, to secret prisons outside of the international infrastructure of the international community, The Red Cross, meaning they didn't even get Red Cross visits [unintelligible 00:16:42] lawyers that prisoners at Guantánamo would get, and they didn't--

They certainly didn't have charges or procedures or processes. They were disappeared. They were in black site. Over the next three and four years, that's where they were held. They get brought to Guantánamo in '06 and '07, and that's the core who's there. That's who those indefinite detainees are. They're men who survived, went through, were interrogated and subjected to these just violent interrogation techniques.

One of these indefinite detainees was the test case in the war on terror, the first person for whom they invented this program of waterboarding, keeping people nude in cages, in boxes, in the dark, sleep deprived, tormented with noises, a special CIA program that was, I think-- First of all, it's illegal, but it had this concept that they would break these men and have them somehow cooperate and join the US in the hunt for the other terrorists. The Senate went on to study the program and said that no, it's a little meaningful, actionable intelligence came out of it, in part because the men would say what they thought their captives wanted them to say to stop the torture.

Brian Lehrer: The torture.

Carol Rosenberg: Yes, to stop the torture. Three indefinite detainees are a man named Abu Zubaydah, I think was quite well known, who had turned out wasn't even a member of Al-Qaeda. He was of a rival militant group, like you call them, militant group. I remember learning about Abu Zubaydah and thinking, "If Osama Bin Laden was Hertz, then Abu Zubaydah was Avis." They were rivals. They weren't the same company, but they had similar ideologies about the anti-Western view and of the West's presence, and hostility towards Israel. He's one of them.

There's another man who's known as Mustafa [unintelligible 00:19:15] whose lawyer says he's deaf. I think he's now partially blind, and it's linked to the amount of times the CIA slammed his head into a wall. That's what it's blamed on, because one of the techniques they used was called walling. One of the psychologists who was hired by the CIA to design these things or put the program together said it would discombobulate a detainee.

Well, in this instance, the allegation is it damaged his hearing and he's supposedly quite sick. I've never seen him. There's 30 detainees. I've seen most of these men through different procedures and proceedings, but some of them have never been seen in public, have never had a hearing. That's beside the point in a way.

Brian Lehrer: No, I'm glad you went into such detail on some of those individuals because these are stories that are not well-known to the general public. Guantánamo has fallen out of the news for so many years now, and it is, as we remember obviously, the victims of the attacks on 9/11, it's also respectful and relevant to our values in the United States to talk about the long tail of the justice system and in some respects, the injustice system that followed the attacks. I want to take a phone call for you. Here is John in Norwalk. You're on WNYC with New York Times Guantánamo Bay Prison reporter, Carol Rosenberg. Hi, John.

John: Hi, Brian. Thanks for taking the call. I would start out with one thing, please stop talking about what enhanced interrogation is and simply call it what it was, which was torture. We tortured these men and now we can't bring them to trial. That was the base of my question. I'm not sure if they have, I have never read that they have, has a habeas corpus been asked for for any of these people, for either stand trial or let me go?

Brian Lehrer: John, thank you. Yes, right of habeas corpus, basically asking the government to state on what charges somebody is being held, otherwise release them, right?

Carol Rosenberg: The basis, the justification for holding them because in this irregular war they just need to justify through intelligence this kind of war detention. Yes, they all have habeas filings in federal court before civilian judges, but certainly in terms of the men who were facing charges, the civilian federal judges have deferred to the military courts, it's called military commissions, and said, "As long as there is a proceeding going on in which they are accused of crimes, we have to find out if they're convicted." There is a deference that goes on.

Habeas proceedings can still be used in a limited basis to challenge some aspects of the detention regime down there, conditions of confinement. Lawyers can go and challenge-- They haven't been particularly successful, but they've tried to challenge medical care, or lack thereof, and mostly that. Ability to communicate with their lawyers, that's been taken through habeas. Abu Zubaydah has had a habeas filing in federal court since that's one of the forever prisoners who's not charged, probably since 2007 or 2008, and there is an exchange of evidence in challenges, in discovery, in discussions. It hasn't been successful.

I think there's going to be a new effort on his part to refine the argument that this is a man who was tortured and never been charged, and wasn't even Al-Qaeda, to see if they can get a federal judge to say, "Charge him or let him go." The idea of habeas corpus is you can't keep a man in the dungeon and not accuse him of a crime.

Brian Lehrer: A listener texts, "Please mention the annual cost of the Guantánamo base." Do you know that number?

Carol Rosenberg: I think they're asking for the annual cost of the prison. The base, it's a small town with a school system, a seaport, an airport, and 5,000 residents at this point. The detention operation, which is a tenant on the base, we believe operates at about $400 million a year. The last time I was able to do a scientific study was in 2019 and I could explain why, but basically the transparency has not been as-- It's just been hard to surface all the figures under the way the Pentagon now budgets things. Back in 2019 I said conservatively it was $13 million per prisoner per year, and part of that was because there were so many guards brought up on national--

Brian Lehrer: Times 30 prisoners.

Carol Rosenberg: Yes. No, back then it was I think 48, 46. I'd have to go back and look at the figures. The point being, there were so many National Guard soldiers brought up on nine-month rotations to work there that we were spending tremendous amount of money just to support training, transporting, entertaining, providing healthcare, housing, and amusements for these guards who were called up to the war on terrorism. I don't think the total is as robust because they've been able to reduce the guard force. They've been able to find some savings along the way certainly on what was, I think it was 40 staff members for every detainee.

Brian Lehrer: I want to do two things before we run out of time at the top of the hour. One is to get your take on this potential plea deal that's been in the news.

Carol Rosenberg: Sure.

Brian Lehrer: Guilty pleas by these, I guess, five people at Guantánamo who may have been connected to the 9/11 attacks themselves in exchange for sparing them from the death penalty. First, I want to play a clip of former President Obama on the topic of closing Guantánamo. People may remember by 2006, President George W. Bush was flip-flopping a bit on the efficacy of Guantánamo. Then in January of 2009, as one of President Obama's very first executive orders, he signed one to close Guantánamo Bay because of all these abuses that we've been discussing in this segment all these years later. Obviously, Obama's order to close Guantánamo did not come to pass, so here is Obama speaking to reporters in February of 2016, in the last year of his presidency in office.

President Obama: As president, I've spent countless hours dealing with this. I do not exaggerate about that. Our closest allies raise it with me continually. They often raise specific cases of detainees repeatedly. I don't want to pass this problem on to the next president, whoever it is. If as a nation we don't deal with this now, when will we deal with it? Are we going to let this linger on for another 15 years, another 20 years, another 30 years?

Brian Lehrer: Obama in 2016. Briefly, Carol, what do you see as the main obstacles to closing Guantánamo when that was a presidential executive order?

Carol Rosenberg: Because President Obama came to realize that closing Guantánamo meant moving Guantánamo or some of these prisoners and creating something like Guantánamo North holding war prisoners in the United States. There'd be fewer of them, and that still probably would be the solution, they would be held in what I've come to call Guantánamo North, and Congress wouldn't allow it. They decided that whatever is left of that prison, bad reputation, tarnished history and all, is something worth keeping, and Congress systematically blocked any efforts to closing, because closing meant creating an alternative up here in the States.

Brian Lehrer: The new news, the potential plea agreement between the five Guantánamo detainees allegedly connected to 9/11, some kind of plea deal in exchange for not going for the death penalty.

Carol Rosenberg: These are the accused conspirators and the request that they offered, which still exists, is still on the table, is if you are willing to satisfy us in an open court of law, explaining your role as conspirators in this attack, admitting to which aspects of the crimes you did commit, we will accept your guilty plea in exchange for life instead of the potential of a death sentence. They could get at most life in prison. That process would play out in an open court down there where people would learn what these men have agreed the US government could prove as a way of ending the threat of potential military execution looming over them.

You should know that one of them is no longer considered fit to stand trial. He's not even eligible to plead until his, let's say, sanity has been restored. In the intervening 18 months of these ongoing negotiations, they're down to four of these men. The offer is still on the table. You mentioned at the beginning that president Biden refused some of their conditions. These men wanted to have certain assurances that they would not return to the kind of dungeon-like solitary confinement that they experienced in the CIA and that they would get some medical care for the damage that they say resulted from the water boarding, the head slamming into walls, and other torture-related damage.

The president said that's not for him to give. It did not end the negotiations. It may be that somebody else in the Pentagon can make an assurance that this is the way the prison will be operated, but the President is not signing on to that. One of the issues is the concern of something called unlawful command influence that the commander in chief shouldn't be involving himself. Big debate.

Plea negotiations, if they can come to an agreement, could see this case end maybe in the next two years. Without that, we may not see a trial start at more than two years. It's just there's too much ground to be covered legally before they can bring in a military jury, sit them down, and start the presentation of evidence, which hasn't yet determined which portions of it are admissible at trial.

Brian Lehrer: Maybe we'll still be talking about this on September 11, 2024, and September 11, 2025, and who knows how much longer.

Carol Rosenberg: I thank you for your continuing interest in this. Guantánamo has been going on so long people forget it's there.

Brian Lehrer: Thank you for your continued reporting. Carol Rosenberg covers Guantánamo Bay for the New York Times.

Copyright © 2023 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.