PRE-TRIAL AGREEMENT – v – PLEA DEAL

After attending six weeks of pre-trial hearings for the 9/11 detainees currently held in the detention center at the Naval Base, Guantanamo Bay, Cuba, a crucial term pertaining to the cases regarding Khalid Shaikh Mohammed (KSM), Walid bin Attash (WBA), and Mustafa Ahmed Hawsawi (MAH), has become a focal point of confusion among Victim Family Members (VFMs) and the public. The term in question is Pre-Trial Agreement (PTA). This term has become muddled in a quagmire of legal, journalistic, social media, and political reporting and bantering. Terms like “Plea Deals,” and “Plea Agreements.” All you have to do is Google 9/11 plea deals, or 9/11 trials to find an inexhaustive array of headlines reading, “The Accused 9/11 plotters reach plea deals with U.S…” Washington Post, 7/31/2024; “Guantanamo prosecutors are exploring plea deals in 9/11 case after…” NPR.org 5/21/2022; “Plea deals revived for alleged 9/11 mastermind Khalid Shaikh Mohammed…” APnews.com, 11/7/2024.

Pre-Trial Agreements and Plea Deals are not mutually exclusive rulings and it is incorrect to use the two terms interchangeably, because they are entirely different things. Using these terms interchangeably not only confuses and undermines the intelligence of those directly impacted, but also creates undue emotional distress and misguided conversations and conflicts.

Communication is the most important element of community engagement and conflict resolution. A question is a powerful thing. Krista Tippett, Journalist, author, entrepreneur eloquently reminds us that “while a simple question can be precisely what’s needed to drive to the heart of the matter, it’s hard to meet a simplistic question with anything but a simplistic answer. It’s hard to transcend a combative question. But it’s harder to resist a generous question.” https://fs.blog/krista-tippett-listening-questions/. At the Naval Station at Guantanamo Bay, Cuba, I am living the questions with my son, nine other VFMs, emotinal support staff, and council representing the five men who murdered 2,977 innocent people, sickening uncountable others, in one single, planned attack on American soil.

My personal need to pursue the questions has lead me to listen generously and ask questions of government council, VWAP personnel, and family members who have been entrenched in the Military Commissions at GTMO, some since the five 9/11 detainees first attempted to plead guilty in 2012.

The questions highlighted here are What is a Pre-Trial Agreement and what is a Plea Deal?

PRE-TRIAL AGREEMENT:

A Pre-Trial Agreement aka PTA, is a contract between the accused and a Convening Authority who exercises authorities and enters into a contract given a certainty of guilt. The contract will ultimately be approved by the judge. The accused has to admit guilt (guilty plea) and the overt things(s) that he did that resulted in all of the murders, in enough detail to the satisfaction of the court. January 7th, 2025, In the case of U.S. v. KSM, council will discuss what needs to be said by KSM to satsify the Military Judge. Both Defense and Prosecution council will go through the provisions of the PTA. The one overriding provision is that a plea of guilt commutes a Death Penalty.

PLEA DEAL:

In a Plea Deal there is no actual contract. The attorney’s agree. The defendant gives a guilty plea to the judge, perhaps to lighten a sentence, understanding that if the judge accepts the plea, there is no trial, and Victim Impact Statements are less formal. The Judge decides on a sentence and the case is closed. There is no contract in State Court that equals Military Court.

THE SITUATION:

The Military Court has a unique way of solving cases. Once the PTA’s are entered into the Court with the defendant’s plea of Guilt, the case enters a Sentencing Trial Phase. There is a Trial. The Trial part of the PTA is equal to the sentencing part. After the PTAs have been accepted, the Judge has 18 months from the day of the plea to begin to issue a Scheduling Order for full litigation of the sentencing case. Scheduling for KSM must commence no later than June 2026. This Order includes selection of a Jury panel of officers and a Jury Foreman from all branches of the military. The jury panel has not seen the evidence of why they have been declared guilty. Once the Jury panel is in place, the evidence comes out to showdeal. The conditions and degree for every action made or not made by the guilty party that led to the crime are not questionable as in a Federal trial. In essence, In the Military Court a trial occurs. It is not a Death Penalty trial. The PTA contract has traded death for a guilty plea and we get all of the evidence we want to get into the case, lifetime confinement (at GTMO), and Victim Impact Statements. Communal activities and amentities currently afforded the detainees cease.

A Certainty of Guilt

In the the Sentencing Trial Phase, council will present all of the evidence including but not limited to communications recordings and transcripts, banking and money transfer statements, tapings of planning meetings, apprehended notebooks, etc. The defendants cannot object to anything the government (prosecution) states as part of the PTA. This Trial phase will also include the following elements: 1. The names of each of the 2,977 victims murdered and survivors impacted, will be stated and identified. There is a large witness list for those victims who were positively identified. 2. There will be rulings on certification facts (i.e. death records, anthropology reports, to alleviate additional witnesses. 3. Witness statements to testify to the aftermath including family members, survivors, rescue workers, etc. 4. Victim Impact Statements. In Military Court. The Victim Impact Statements can be testimony or letters. This is a formal process. Those giving statements in court will get sworn in. The judge will decide who these individuals will be, based on a broad representation of the 9/11 victim population, in order to give the greatest impression of impact to the jury panel.

It is important to share a word about two more terms, DETAINEES – v – CONVICTED:

Pre-Trial detainees are jailed prior to trial. The 9/11 detainees are held as LAW OF WAR detainees. They are part of al-Qaeda. Al-Qaeda is not part of the Geneva Conventions. After KSM (and later the remaining detainees) is convicted, he will transition to a Convicted Prisoner. Under the current detention situation, they will be held as prisoners under the Department of Defense (DoD) Prisoner Policy. The Military Court gets to decide the Prosecution principles. The DoD decides on Policy priniciples. The conditions of confinement are not part of the PTAs. Ultimately it is the DoD that hands down confinement decisions.

The trial part of the PTA is the equal to the sentencing part.

Government council

THE STORY:

The attacks on September 11th, 2001 is one of the most notorious crimes in our lifetime. It has shaped the world we live in today. After ten years, from 2012, pursuing a capital case, and subsequently 27 months preparing PTAs to bring finality to the never-ending, heavily politicized and polarized case, the Government/prosecution believes they have made the best choice given the amount of time that has passed and is realistically left, so these monsters don’t die as innocent men, aging, in poor health, un-convicted. Unsentenced. They’ve chosen my husband’s finality. Now, I want to choose their “FINALITY,rather than them doing so in their (natural) death!

9/11 has shaped the course of my life and the lives of my sons who lost their innocence at 4- and 8-years-old and grew up in a fearful world without their father. They’ve never known a world without global, domestic, and community conflict churning around their intimate lives. One in which there is no justice and reparations for the sudden annhilation of their dad and thousands of others in a matter of minutes. One in which there is a sense of no hope for my beautiful 27-year old boy who chose finality, in his own ending.

Living in the footprints of 9/11 has been our American life.

5/22/03 – Dylan (6-yrs-old) [Scene: The dinner table]: “Why can’t my Dad be here?” / Mom – “I don’t know, I think you should ask God that question when you get there.” / Dylan – “How do we get to Heaven? I know, we take an airplane!” / Mom – “No, the souls of the people who love you, who are already in Heaven come and get you.” / Dylan – “So Daddy is an angel. I know we can’t see angels so that means Daddy is sitting next to me right now. Is Daddy sitting next to me mommy?” / Mom – “Maybe.” / Dylan – “He is! Why can’t God send him back to Earth again? Why can’t God just throw him down so I can see my Dad again? I’d rather kill the people that killed our Dad. I’d rather sue the person that killed our Dad. Even though it’s not just one person, it’s 100.”

© Deborah Garcia 2025, all rights reserved.