In the days and months following the attacks of 9/11, the government laid the blame for orchestrating the attacks on Osama bin Ladin. Then, after bin Ladin was murdered in his home in Pakistan in 2011, the government decided that the true mastermind of 9/11 was Khalid Shaikh Mohammed.
By the time of bin Ladin's death, Mohammed had already been tortured by CIA agents for two years in Pakistan and charged with conspiracy to commit mass murder, to be tried before an American military tribunal at Guantanamo Bay, Cuba.
Throughout the entire existence of the U.S. military detention camp at Gitmo, no one has been tried for causing or carrying out the crimes of 9/11. The government only tried one person for crimes related to 9/11. That was Zacharias Moussaoui who pleaded guilty in federal court in Virginia to being the 20th hijacker and then was tried in a penalty phase trial where the issue was life in prison or death. The government spent millions in its death penalty case, which it lost. A civilian jury sentenced Moussaoui, who never harmed a hair on the head of anyone, to life in prison.
Mohammed, meanwhile, and four other alleged conspirators, have been awaiting trial since their arrivals at Gitmo in 2006. Since then, numerous government military and civilian prosecutors, as well as numerous military judges, have rotated into and out of the case.
The concept of military tribunals was born in the administration of President George W. Bush, who argued that 9/11, though conducted by civilians, was an attack of military magnitude and thus warranted a military response. This pathetic knee-jerk argument, of course, not only brought us the fruitless and destructive wars in Afghanistan and Iraq; it also brought a host of legal problems unforeseen by Bush and his revenge-over-justice thirsty colleagues.
The first legal issue was conspiracy. Since Mohammed did not carry out the attacks, he could only be charged with planning them. But conspiracy is not a war crime, and thus no military tribunal could hear the case; so Congress came up with a hybrid that purported to satisfy the Supreme Court - a military tribunal that would follow the federal rules of criminal procedure, as American federal courts do.
The next issue was where to try Mohammed and his colleagues. President Barack Obama wanted to close Gitmo - operating at the $540 million annually - and try Mohammed and the others in federal courts. This would have been consistent with federal law and the U.S. Constitution.
But Republicans in Congress had other plans. They viewed Mohammed as too dangerous to bring onto U.S. soil, and so Congress enacted legislation that prohibits the removal of Mohammed and the others to the U.S. for any purpose.
The prohibition on removal, of course, meant that any life term for Mohammed or the others would need to be spent at Gitmo. It also meant that there would be a legal obstacle to the execution of a death sentence, as Gitmo is not equipped to execute anyone.
Most troubling is the government's problem of how to address the issue of torture. Bush believed that military men on military juries would neither cringe at torture nor hesitate to impose a death sentence. Yet, when defendants at Gitmo, in non-9/11-related cases, described the torture that CIA agents had visited upon them, military jurors were repulsed at what they heard and recommended clemency even for those who caused deaths.
These events - filing legally baseless charges, prohibiting the removal of defendants, and fear of the likely reaction of military jurors to testimony about torture - caused the prosecution team to rethink the entire idea of putting Mohammed on trial, and thus in March 2022, the government initiated secret plea-bargaining negotiations with defense counsel.
The lawyers for the defendants and the prosecutors have apparently reached the structure of a deal. Last week, that structure was presented to President Joe Biden, who indicated that he will not be involved in any decision concerning a plea bargain.
The parameters of the deal call for guilty pleas and life in a civilian prison, with group religious services, first-class health care and without solitary confinement.
Why would the government agree to such a plea for the persons it claims are the monsters who murdered 3,000 Americans on 9/11 and triggered all the horrors and cultural changes that followed those murders? What does the government fear?
What does it always fear? THE TRUTH.
At trial, the defendants will be permitted to bring the government's imperialistic wars, its tortures and its foreknowledge into the courtroom. The government knows that much of its behavior, from the CIA-orchestrated overthrow of a popularly elected prime minister of Iran in the early 1950s to the untruthful excuses for toppling Saddam Hussein, will show American foreign policy at its imperialistic and violent worst.
And the hours and weeks and months and years of repeated torture - all of it criminal, and much of it likely pardoned by Bush, the Torturer in Chief - will undermine the case against Mohammed and the others.
This is what happens when the fabric of our legal system is interfered with for authoritarian reasons. The tragedy of 9/11 happened on Bush's watch. What did the CIA know before 9/11? Bush compounded his ignorance and failures with boasts of bravado and torture - all of which have come back to haunt his current successor in the White House.
Now Biden is confronted with a take-it-or-leave-it decision. Defense and Justice Department lawyers have told him that they cannot try this case without material damage to the scheme of American empire, built on death, lies and torture, without revealing the names and methods of the folks who did these horrible deeds and the lies of the presidents who authorized them.
What good has come from Bush's knee-jerk bravado? None.
Andrew P. Napolitano, a former New Jersey Superior Court Judge, has published nine books on the U.S. Constitution.
This article originally appeared on New Jersey Herald: Guantanamo Bay: George W. Bush's legacy