USA - Guantanamo Bay

USA - Sept. 11 Plea Deal Includes Gag Order on C.I.A. Torture Secrets

February 7, 2025:

February 7, 2025 - USA. Sept. 11 Plea Deal Includes Lifetime Gag Order on C.I.A. Torture Secrets
The clause is included in a disputed plea agreement between a Pentagon official and the man accused of planning the attacks that killed 3,000 people.
Khalid Shaikh Mohammed, the prisoner at the military prison in Guantánamo Bay, Cuba, who is accused of plotting the Sept. 11 attacks, has agreed to never disclose secret aspects of his torture by the C.I.A. if he is allowed to plead guilty rather than face a death-penalty trial.
The clause was included in the latest portions of his deal to be unsealed at a federal appeals court in Washington. A 3-judge panel is considering whether former Defense Secretary Lloyd J. Austin III lawfully withdrew from a plea agreement with Mr. Mohammed in the capital case against 5 men who are accused of conspiring in the attacks that killed nearly 3,000.
The C.I.A. has never taken a public position on whether it supports the deal, and the agency declined to comment on Friday. But the latest disclosure makes clear that Mr. Mohammed would not be allowed to publicly identify people, places and other details from his time in the agency’s secret prisons overseas from 2003 to 2006.
The crime. Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11 attacks, and 4 other defendants are facing charges in a U.S. military tribunal at Guantánamo Bay of aiding the hijackings that killed nearly 3,000 people. The charges carry the death penalty.
The trial. The defendants were arraigned in 2012, but the case has been mired in pretrial proceedings, much of them focused on the C.I.A.’s torture of the defendants. Learn more about why the trial hasn’t started.
The role of torture. In 2021, a military judge in Guantánamo's other capital case threw out key evidence because that prisoner was tortured. Defense lawyers in the Sept. 11 case are challenging the same type of evidence, and seeking to have either the case or possibility of a death penalty dismissed because of torture.
The plea deal. Susan Escallier, a retired general and former Army lawyer, authorized a plea agreement in July meant to resolve the case with life sentences for Mohammed and two other defendants. But Defense Secretary Lloyd Austin abruptly canceled the deal, reviving the possibility that they could someday face a death penalty trial.
The power to approve plea deals. After defense lawyers challenged Austin’s cancellation, a different judge, Col. Matthew McCall, ruled that the original deal could go forward. At the end of November, Austin stripped Escallier of her authority to reach settlements in any cases at Guantánamo Bay, giving himself the sole power to approve plea deals in terrorism cases there in the final months of the Biden administration.
The defendants in the plea deal. Along with Mohammed, Walid bin Attash is accused of training 2 of the hijackers, researching flights and timetables and testing the ability of a passenger to hide a razor knife on flights. Mustafa al-Hawsawi is accused of helping some of the hijackers with finances and travel arrangements.
The other defendants. Ammar al-Baluchi is accused of transferring money from the United Arab Emirates to some of the hijackers in the United States. He chose not to join the plea agreement and could face trial alone. Ramzi bin al-Shibh was accused of helping to organize a cell of hijackers in Germany. In 2023, he was found medically incompetent to stand trial and removed from the case. He could someday face trial if his mental health is restored.
It has been publicly known for years that Mr. Mohammed was waterboarded 183 times by the C.I.A. It has also been revealed that waterboarding was done by a 3-person interrogation team led by Bruce Jessen and James E. Mitchell, 2 former contract psychologists for the agency. Details of Mr. Mohammed’s violent treatment, including rectal abuse, have emerged in court filings and leaks.
But the agency has protected the names of other people who worked in the “black site” prisons, notably medical staff, guards and other intelligence agency employees. That includes the people who questioned Mr. Mohammed hundreds of times as he was shuttled between prisons in Afghanistan, Poland and other locations, which the C.I.A. has not acknowledged as former black sites.
Now, a recently unredacted paragraph in Mr. Mohammed’s 20-page settlement says he agreed not to disclose “any form, in any manner, or by any means” information about his “capture, detention, confinement of himself or others” while in U.S. custody.
He signed the agreement on July 31, after more than 2 years of negotiations between his lawyers and prosecutors, who are responsible for protecting national security secrets. Two military courts have ruled that Mr. Austin acted too late when he tried to withdraw from the settlement on Aug. 2, 2 days after the retired Army general he put in charge of the case had signed it.
The settlement and similar agreements with 2 of Mr. Mohammed’s co-defendants, Walid bin Attash and Mustafa al-Hawsawi, are still mostly under seal while defense lawyers seek to enforce the agreement and hold a sentencing hearing at Guantánamo Bay.
Secrecy surrounding the black site program has been one reason for long delays in starting the trial. Mr. Mohammed was first charged in this case in 2012. Defense lawyers have spent years litigating for government versions of what happened to Mr. Mohammed and the other 4 defendants in the case, forcing prosecutors to frequently seek permission from the military judges to withhold or redact certain evidence in the case.
The settlement does allow Mr. Mohammed to continue discussing those details with his lawyers while they prepare for a lengthy sentencing trial before a military jury. Hs lawyers have an independent obligation to keep that information classified.
Separately on Friday, the 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit extended an order preventing the military judge at Guantánamo from holding plea proceedings in the case.

https://www.nytimes.com/topic/subject/military-commissions
https://www.nytimes.com/2025/02/07/us/politics/sept-11-plea-deal.html