Biden administration wants to look tough in an election year
Late on August 3, Secretary of Defense Lloyd Austin threw out a plea deal, without comment, that would have seen three of the most notorious September 11 terror suspects at Guantánamo imprisoned without parole for the rest of their lives.
The deal was that they would plead guilty to murder and to providing material support to a terrorist group and, in exchange, they would remain at Guantánamo until their deaths. But Austin’s rejection of the plea—years in the making—effectively sends the cases for all three defendants back to square one and puts the death penalty—and the possibility of acquittals—back in play.
Austin’s consideration was almost certainly political. Americans have short memories, and the politicians and editorial writers on the right had a field day with the plea deal, promoting the ridiculous notion that Khalid Sheikh Mohammed (KSM) and his cohorts had somehow gotten away with something. They hadn’t.
But it is an election year. And the White House must project an image of strength. In the meantime, nothing at Guantánamo will change. More years, and perhaps decades, will pass with these prisoners remaining in limbo. The military tribunals will drag on. There will likely be no trials for anyone. And Guantánamo will, of course, have to remain open. Indefinitely. What a system we’ve given ourselves.
Perhaps even more importantly, and something that the mainstream media have utterly ignored, is the motivation for KSM and his colleagues. Does nobody remember page 147 of the 9/11 Commission Report? It says clearly there that, “By his own account, KSM’s (Khalid Sheikh Mohammed’s) animus toward the United States stemmed not from his experiences there as a student, but rather from his violent disagreement with U.S. foreign policy favoring Israel.”
This should not have been a secret to anybody at the White House, the Departments of State and Defense, or the CIA.
In the 56 hours that I sat with Abu Zubaydah, who was wrongly thought to be the third-ranking official in al-Qaeda, and for whose capture in Pakistan in 2002 I was responsible, he told me, “I never wanted to attack the United States. All I ever wanted to do was to kill Jews.”
Why are the media not talking about this, especially in light of the fact that the International Court of Justice has deemed the current Israeli war in Gaza to be an act of “genocide”? Instead of a national conversation about American foreign policy toward Israel, Americans are encouraged to blindly support that country and to agree to provide it with virtually unlimited implements of war.
Getting back to the Guantánamo detainees, by way of background, the Defense Department announced on July 31 that KSM, the alleged mastermind of the September 11 attacks, as well as two co-defendants, had agreed to plead guilty to multiple charges of terrorism and would serve consecutive life sentences with no chance of parole.
The agreement would have brought to an end, at least for KSM, Walid bin Attash, and Mustafa al-Hawsawi, an odyssey through uncharted and unprecedented Defense Department legal territory. The announcement led to mixed feelings from many of the 9/11 victim families, human rights activists, and the legal community, and there were certainly lessons to be learned.
The deal, according to the Associated Press and attorneys for the defendants, was actually quite straightforward. The three would have served sentences of life without parole. In exchange, the Pentagon had promised to not execute them and would have allowed them to remain at Guantánamo for the rest of their lives. (They reportedly did not want to have to experience the harsh winters at the Supermax penitentiary in Florence, Colorado.)
Much of the commentary around the deal was negative, unsurprisingly. The New York Post, for example, wrote that the deal “dishonors the victims of terror.” And Senate Minority Leader Mitch McConnell released a statement saying disingenuously that “the Biden-Harris Administration’s weakness in the face of sworn enemies of the American people apparently knows no bounds. The plea deal with terrorists…is a revolting abdication of the government’s responsibility to defend America and provide justice…The Administration’s decision to spare these mass murderers from the death penalty is an especially bitter pill.”
Oh, how quickly they forget. If you want somebody to blame for the fact that all this has dragged on for two decades, blame the CIA. And blame Mitch McConnell and almost every other member of Congress who served in 2009 and 2015.
Let me begin by saying that I can tell you from first-hand experience that KSM and his co-defendants were absolutely guilty of planning and carrying out the September 11 attacks. The intelligence was crystal clear, although it remains very highly classified. These are very, very bad people.
They have the blood of nearly 3,000 Americans on their hands. They deserve to be punished severely. Many Americans, perhaps even most Americans, probably believe that they deserve the death penalty for what they did. But that is not going to happen for some very specific reasons.
As an aside, and as I alluded to above, I was the CIA’s chief of counterterrorism operations in Pakistan from January to May 2002. At one point in March 2002—after my team had captured so many al-Qaeda fighters that we had literally filled the Rawalpindi Jail—I sent a cable to CIA Headquarters asking what to do with the prisoners. The response was quick: Put them on a C-12 cargo plane and send them to Guantánamo.
The idea was that they would remain at Guantánamo for three or four weeks until the Justice Department could determine in which federal district court—the Southern District of New York, the Eastern District of Virginia, or the District of Massachusetts—they would be tried. They would then be transferred to the United States, where they would appear before a jury of their peers and, presumably convicted, sentenced, and many hoped, executed. But that never happened.
Enter the CIA. KSM was a very big fish for the Agency. And rather than turn him over to the Justice Department once he was captured, the CIA elected to send him instead to a series of a half-dozen or so secret prisons around the world, where CIA officers and contractors subjected him to merciless torture.
Sure, KSM and the others eventually confessed to planning and carrying out the September 11 attacks. But by then they probably would have confessed to kidnapping the Lindbergh baby, if they had been asked. And in the end, nothing that they had told the CIA as a result of torture could be used against them in the Guantánamo military tribunal. As a result, there was a real chance that even the stacked deck of a Pentagon military tribunal would have had to find them not guilty.
At the same time, our elected representatives on Capitol Hill, in an overwhelmingly bipartisan fashion, passed a measure in 2009 to forbid any Guantánamo prisoner from being transferred to the United States to face trial. That vote was 68-29 in the Senate and 281-146 in the House. And in 2015, Congress passed a bill forbidding the president from closing the facility. That vote was 91-3 in the Senate and 370-58 in the House. As a result, these heroes of the rule of law made Guantánamo permanent.
So, what is a terrorism defendant who has been tortured by the CIA to do? He accepts the fact that he will never, ever, be free and he takes the best deal his attorneys can negotiate. And what is a Guantánamo military prosecutor to do? He goes public that the CIA blew it, that the likes of KSM and his friends could have been convicted two decades ago and probably would have been executed by now if the CIA had simply followed the law.
But here we are, nearly 23 years after the attacks, and many of the 9/11 families feel robbed. They feel that their family members died violently and unnecessarily and their killers get to live. That’s the sad truth.
But don’t blame Joe Biden. It’s not his fault. Blame the outlaws at the CIA. We should never forget (or forgive) that they subverted the Constitution just because they could.
And what of the issue of plea bargains? Again, from first-hand experience, I can tell you that they are used as cudgels. In my own case, after my arrest for blowing the whistle on the CIA’s torture program, I was offered a plea deal that I eventually accepted. I believed in my heart that I had not done anything wrong, and I knew that, if there had been such a thing as an “affirmative defense” where I could have said that I did what I did in the public interest, I would have been acquitted at trial.
But in the end, I was offered a sentence of 30 months in prison. I asked my attorneys what my likely sentence would be if I were to turn down the government’s offer, go to trial, and lose. The answer was 12-18 years.
And indeed, at my sentencing, Judge Leonie Brinkema of the Eastern District of Virginia said on the record, “I see you have a plea deal, Mr. Kiriakou. I don’t like it. I don’t like it one bit. But I’m compelled to accept it. If it were up to me, I would give you 10 years.”
Well, imagine the alternative if your name is Khalid Sheikh Mohammed or Walid bin Attash or Mustafa al-Hawsawi. The alternative is the death penalty. Nobody will want to roll those dice.
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About the Author
John Kiriakou was a CIA analyst and case officer from 1990 to 2004.
In December 2007, John was the first U.S. government official to confirm that waterboarding was used to interrogate al-Qaeda prisoners, a practice he described as torture.
Kiriakou was a former senior investigator for the Senate Foreign Relations Committee and a former counter-terrorism consultant. While employed with the CIA, he was involved in critical counter-terrorism missions following the terrorist attacks of September 11, 2001, but refused to be trained in so-called “enhanced interrogation techniques,” nor did he ever authorize or engage in such crimes.
After leaving the CIA, Kiriakou appeared on ABC News in an interview with Brian Ross, during which he became the first former CIA officer to confirm the existence of the CIA’s torture program. Kiriakou’s interview revealed that this practice was not just the result of a few rogue agents, but was official U.S. policy approved at the highest levels of the government.
Kiriakou is the sole CIA agent to go to jail in connection with the U.S. torture program, despite the fact that he never tortured anyone. Rather, he blew the whistle on this horrific wrongdoing.
John can be reached at: jkiriakou@mac.com.
