THURSDAY BRIEFINGS: Part 1 – The Defense

January 9, 2025 – 4:00 PM

[Note: The briefings will appear in two individual posts.]

The first of two briefings, scheduled back-back, commenced at 4:00 PM.

Victim’s Family Members (VFMs) entered the hotel boardroom, scattering around four tables arranged in a square. An offering of cheese, crackers and grapes was provided by defense support staff. Victim’s Witness Assistance Program (VWAP) support staff sat at a wall-side table. The corner room afforded a sweeping view of the bay, reflecting the ceylon blue of the firmament above.

THE VICTIM’S FAMILY MEMBERS:

Myself and my 28-year-old son; A mother and 29-year-old daughter who lost a brother and uncle. A couple who lost his brother and 7-month pregnant wife; A couple who lost his brother, both of whom were Canadian citizens at the time; A woman who lost her sister and only sibling; a 31-year old young woman who lost her firefighter father.

What’s unique about this group of 10 VFM’s is that there 3 young people in their 20’s.

THE DEFENSE TEAM: DoD Military Commissions Defense Organization)

[Note: This was a limited member gathering due to the week’s focus on the Pre-Trial Agreement (PTA) of Khalid Shaikh Mohammed (KSM)]

Defense members present:

• Tammy Krause – DIVO (Defense-Victim Outreach Specialist)
• AF Maj Elspeth Theis – KSM team
• Rita Radostitz –Ali Ahmed Ali (AAA) team – Detective of records. Wired and will receive notice of pending ruling.) (was with KSM team for 6 yrs.)
• Susan Casey  – DIVO
• Sean Gleason – Mustafa Al Hawsawi (MAH) team – Council
• Gary Sowards – KSM team – lead council

Council and support staff peppered the empty seats among VFM’s. The mood is rife with suppressed angst as Ms. Radostitz fixes her gaze at her phone awaiting the stay ruling from the D.C. District Court. Will KSM enter his guilty pleas to the 103 pages of charges in the PTA commencing at 9 AM Friday morning, or will we return stateside with a continuation (delay) of injustice into the megasphere? The clock is the loudest object in the room.

Mr. Sowards begins: “No news. Prior to this briefing, KSM asked if they’d heard from the court.”

A VFM begins, “This has an intergenerational impact. My niece lost her fireman father, but she also lost mother who had difficulty dealing the loss.”

Another family member said, “9/11 has impacted my stepdaughter with fear.”

I said, “We all seek Justice. We all want finality. How this is achieved, lends to differing views; some want guilty pleas with a sentencing trail and lifetime confinement, others want litigation in a criminal trial and a death sentence. This is a divisive and fiery point of contention within the 9/11 community.”

“Justice delayed is justice denied, asserts a VFM. We want prosecution to fail. We have a strange situation where we’re cheering defense on now. We want the PTA to stand, though it’s not the end I want. The broader 9/11 community needs to be educated in understanding of the process and what’s going on down here. PTA is the best way to bring resolution. We’re sitting here on the edge of our seats waiting for what the defense wants. To deny the Stay. It is a conflicting feeling to hold. To hear (yesterday), KSM say he killed my brother was powerful. It is the first time hearing this in open court.

To hear that he is ready to admit guilt, that he planned to kill my brother, I want to hear that tomorrow!” sobbed.

Mr. Sowards commented, “if the stay is granted is, if they review and say the writ has credibility and the PTAs are gone, what happens? The problem now is what they will say. The most significant thing they can say that will interrupt tomorrow is that they will have a stay.”

A VFM asked, “what happens down the road if there is a stay? Will you appeal that?”

Mr. Sowards said, “if you lose it’s how you lose. There’s not much from our perspective that we can take up to the Supreme Court. The issue is that if the Secretary of Defense (SoD) is permitted to withdraw from the PTA, what does that mean to the consequences to the government in terms of cancellation clauses? What we’re trying to do is what you wish for. If we don’t win today, it opens the Pandora’s box of cancellation clauses. This doesn’t speak to wrapping this up quickly. There are many things built into this case, part of which is the government’s resistance to litigate.”

A VFM asks – “What happens with the new administration and we get Pete Hegseth and DeSantis? Who do you think might affect anything? What is his view and opinion of this facility?”

Mr. Sowards replied, “Potentially, our worst fear is if this becomes a criminal trial… it would be hell or high water that we’ll get them executed. Today is progressing toward reaching finality because we have talented prosecutors looking at this passionate case and taking into account the impact on family members. The prosecutor is saying we will have the biggest, most complete presentation of evidence one can imagine in the pleas. However, concern for family members is not high on the government’s list.”

“We’ve had to fight the government every step of the way,” says another VFM.

I said, “From day one, it’s been a fight.”

Mr. Sowards said, “If this goes to a death penalty trial, it comes with, we want it done tomorrow! Then haste makes waste, as history has shown. The case may be vulnerable to unlawful influence.”

I said, “The government isn’t working for us. They are working to support their political agendas!”

Another Family Member said, “the combination of the powers in open court, I can only describe it as insanity that both prosecution and defense are both upset by some other entity. Another example of the way the government has not fulfilled their obligations not just to us but to the nations of the world. There is a level of stress in this situation that is incomprehensible. I’m afraid of the path ahead, if the stay is issued before KSM completes his plea.

Ms. Radostitz said, “we can continue to respond to the stay. We can expect to have a decision by 9 AM tomorrow. If the Solicitor General issues the stay, it can go to the Supreme Court by 9 AM. They just need to get one Department of Justice judge to agree. Judge Roberts can only issue an administrative stay solely, until he gets the other judges the information, and then make a decision. Five judges have to agree to grant the stay.”

Mr. Sowards said, “usually they only extend this courtesy for people on death row.”

A VFM asked, “Has KSM changed his feelings over all this time, about this country? Does he have regrets, would he do it again?”

Mr. Sowards replied, “His position is the same now as it was in 2001 – when he was at his combatant tribunals he said, ‘It’s like George Washington doesn’t enjoy to want to kill people but he’s defending his nation.’ KSM still holds this. These acts are ones compelled by his culture and religion. He says that he does not expect defense to share the same feelings he has. He’s not interested in convincing us that the U.S. is an enemy, but he wants us to understand what he’s doing. He himself is most interested in explaining (being a father of 8 children) that he understands what the killings mean, however, unlike what he sees going on in Gaza, they purposely did not do anything. He admits under U.S. law, — ‘the places we attacked… are under Law of War (LoW), you can attack economic centers. I admit under U.S. law that those are crimes. I admit the government did torture me. I admit they can prove beyond a reasonable doubt that I did those things.’ He’s never been one to say, save me from the death penalty. Part of his Islamic belief is a fatwa – a religious judgement on how you should live your life. His concern is what his belief is as a Muslim, ‘If you’re in that position its your duty to live your life for God, so you can live your life to preach for God, until he decides it’s time for you to die.’ His concern is that he’ll die without a guilty plea and sentence. This means he’s died as a failure to God for not fulfilling his duty (to protect Shariah law in Arab nations). He is eager to explain why it happened.”

Mr. Gleason added, “why did this happen? KSM was studying in the U.S. and returned to Kuwait. He couldn’t return there at 18. Before finishing his college career, the Soviets invaded Afghanistan. Reagan encouraged Azzam to tour around and find college students to join the mujahidin and fight the Soviets, to protect Muslims against attacks. We think there’s a certain element of bravado in people who have been in battle and shared comradery. They have a propensity to see the world in those terms.”

Mr. Sowards said, “there’s not a statement — We hate Americans for their values. The U.S. has been directly funding the state of Israel since after WWII to provide a safe haven for the survivors of the Holocaust. This falls into that narrative that we bank rolled Israel. There was a direct action by the United States. KSM says, ‘If the U.S. stops doing this for Israel we don’t have a problem with them.’ There is no effort on the part of the accused in a belief that they should be making people think one way or another.

The very details of what a sentencing hearing is would be instrumental. The idea of the immensity of a sentencing hearing here is very important. Is there any way we can disabuse people’s thinking that we will not have a trial?”

Maj Theis said, “a guilty plea is just as involved if you had a trial merit. It is fully litigated, each component. There is a Sentencing TRIAL, not a hearing to litigate to determine guilt. Everything comes out. They can’t object. They have to say, YES, that everything the government just said in this trial is correct. By accepting a guilty plea, all the evidence comes in and the government provides all that evidence to the family members. Family members get to do mitigation, extenuation and punishment (Victim Impact Statements).¹ We want families to have a voice. Make yourself heard. All the evidence has come in signed, sealed, and delivered. IT IS A TRIAL!”

Ms. Krause said, “one thing helpful, one good thing about the PTA in Military Court is that more is disclosed, because if you went to trial you’d be fighting all the evidence coming in. How do we explain to people that more information will be shared, than if litigated in trial?”

Mr. Gleason added, “this is the best way for the 9/11 story to come out. The government hasn’t served us in this way, by saying there will not be a trial. Clay Trivett is saying there will be a trial. That Austin’s position is there won’t be a trial, is baffling.”

Maj Theis said, “there is concrete evidence – the issue of LHMs (Letterhead Memoranda) should they be allowed or not allowed… If you agree to the PTA’s, they’re in! Otherwise, the litigation will continue to fight whether or not they can be in, as they’re doing with Ali,” (who does not have a PTA and continues to litigate the LHM Suppression hearings (motion to suppress based on CIA RDI (Rendition Detention Interrogation) EITs (Enhanced Interrogation Techniques) ordered by the Bush administration following the September 11^, 2001 attacks).

A VFM asks, “Assuming tomorrow happens, what exactly will we hear KSM say?”

Mr. Sowards said, “if it goes forward we follow what is referred to as a Trial Practice Guide. A script. It’s negotiated pre-trial so that the judge is confident that it supports the guilty plea. If we don’t, if a new appointee comes in January 20^th, they may challenge the providence of the plea. It’s like leading questions for the purpose that no one goes off script. It’s very detailed in saying; you did this, this, this… This is Stipulation of Fact – The judge reads this and KSM is says, yes, yes, yes. There are 103 pages of what needs to be nailed down rather than, ‘tell us what you did and why’. It proves within a reasonable doubt that those crimes were committed. The script is thorough.

We don’t want to take the significance out of the case because it’s so detailed. Tomorrow if it happens, we all will want the judge to say, ‘I want everybody to be excellent and professional, then I want him convicted.’ Council spent three days going over this with the Military Judge so that he actually is knowing what he’s saying.

When does he get to tell his truth? In the pre-sentencing theory, it is in the penalty phase of trial. You are taking out the guilt phase with the plea and moving into the second phase of the trial, the sentencing phase. In the court martial system, Military Commissions calls it ‘Recommendation,’ as opposed to the defendant standing up and telling their story in civilian court, the victims tell theirs. Ms. T.R asks, ‘I want to know why my sister had to die.’ Expect this to be similar.”

A VFM asks, “How long will the defense portion of the trial take? It’s a week’s-long presentation. In a Criminal Trial, it’s a month’s 2-3 months-long presentation, for the guilt phase.

In Military Commissions there are two trial phases: Guilty Plea entry and Sentencing Trial

Stages of Sentencing Trial:

1. Getting a jury panel.
2. Government’s presentation of their case.
3. Defense presentation of their case.
4. Closing arguments.
5. Panel decision. The Jury panel just has to determine how many years is the confinement. Their job isto determine the sentence.

Mr. Sowards has asked for an expedited transcript. Hearings are posted on the Military Commissions page at https://www.mc.mil/ . “The Solicitor General must file the writ of mandamus to the D.C. District Court by January 17^th, with a response expected on January 22^nd, if the PTAs can be entered to the Military Court. If granted, plea entries could happen as soon as January 28^th. If not, the Suppression hearings will continue for Ali Abdul Ali (AAA) until June-ish. (The suppression hearings ended for the three accused with PTAs because their pleas have been signed and sealed.) Once this is complete, AF Col Matthew N. McCall will take his postponed retirement, exiting the case. The 9/11 trials will be on administrative hold until the 6^th military judge is assigned, familiarizes himself with the uncountable pages spanning twelve years of proceedings, and resumes military court sessions. The earliest this may occur is sometime in the fall.”

The prosecution, with VWAP, went around to CCTV sites two years ago to meet with family members and discuss the possibility of PTAs. They are planning to do this again, perhaps in the fall, to discuss the way forward. Two new CCTV sites have been opened; Farmingdale, NY (Long Island), and West Palm Beach, FL. A site in California is in the planning stages.

© Deborah Garcia 2025, all rights reserved
Photo: view from Navy Gateway Inn & Hotel, with permission from VWAP.