25 YEARS, NO FINALITY

The playbook behind the military commission case of the 9/11 planners at Guantanamo Bay reveals a system built to delay, not deliver justice

In the days leading up to the twenty-fifth Anniversary of the September 11 attacks, the U.S. government provides neither finality nor the meaningful empathy that victims and families deserve.

The case concerning four of the five accused planners of the September 11^th attacks is one of the longest-running capital cases in the U.S. Military Commission system (preceded by the U.S.S. Cole Case). It has become the most complex, most litigated, and longest-running war crimes prosecution case in U.S. history. The trailer-courtroom encased in barbed wire at Naval Base Guantanamo Bay, known as “Camp Justice,” has served as much as a classroom for the judicial review of constitutional law as a courtroom for the subverson of civil liberties. Since the military commission’s formal charges were filed, the United States v. Khalid Sheikh Mohammed, et. al. remains deadlocked in pre-trial hearings, procedural motions, and unresolved torture-related suppression issues adjudicated by five judges (plus one interim judge) and four presidents spanning six administrations.

Constitutional rights are primarily negative liberties, freedoms defined by the absence of interference of external constraints described as freedom to. They restrict what the government can do by shaping litigation. The constitution is designed to framework and limit what governments may not do and what rights litigants can invoke such as fair trial rights. One exception to this legal measuring stick is the case of the 9/11 detainees who planned the murder of my husband, David Garcia, and 2,976 civilians murdered in New York, Pennsylvania, and Washington D.C. Government oversight and judicial independence have been whitewashed with political opportunism and ignorance. Boundaries have been shifted to the whims of matters of national interest, making this the single most complicated case the United States has ever litigated.

I’ve attended seven weeks of hearings at the Naval Base Guantanamo Bay from November 2023-March 2026. This March I observed a week of testimony from the final government witness, FBI special agent Steve Gaudin regarding bin Attash’s motion to suppress statements he made to the FBI in 2007 and 2008. In July, I met with Defense Victim Outreach personnel and attended an in-person Town Hall update meeting at the Office of the Prosecutor in Tyson’s Corner, VA.

What is the U.S. Military Commission

The U.S. Military Commissions is a military court of law traditionally used to try law of war and other offenses. It’s supposed to be adjudicated independent of the government. An alien enemy belligerent who has engaged in hostilities, or who has purposefully and materially supported hostilities against the United States, its coalition partners or was a part of al-Qaeda, is subject to trial by military commission under the Military Commissions Act of 2009.

Players in the Military Commission

The military tribunal system comprises about eighteen overseers, beginning with the Secretary of Defense and branching out to offices of the Convening Authority, Chief Judge and Trial Judiciary offices, Defense Legal Services Agency, and Chief Prosecutor. Players, particularly in the 9/11 case, are so numerous and diverse in interests that it’s destroyed by its own procedural mass, collapsing under its own weight akin to the fated towers themselves. The sheer structural mastodon mirrors a Dickens “Bleak House” (1853) tale of institutional sclerosis, producing a case that cannot be adjudicated. A system so clogged with actors, procedures, competing interests, bureaucratic layers, and attrition that it has become parasitic, functioning as a host that only exists to sustain the actors feeding on it. 

Why the government created the detention center at GTMO: The Bush administration attempted to use Guantanamo Bay as a way to deny habeas corpus and due process rights from the captured detainees. It also used the overarching War on Terror as a tool to attempt to consolidate power in the executive branch and push back against limitations on presidential authority.

Why it’s taking so long

This war-crimes case—where the defendants may face the death penalty if convicted—is supposed to be adjudicated by the U.S. Military Commission. The Executive Branch created and controls the military commission through the *Department of Defense (Pentagon), and the boundaries between its political interests and the supposed independence of the Military Commissions judiciary have been blurred. The constitutional questions at stake are mired in civil, procedural, and historical ambiguities.

The Guantanamo capital case litigation hearings did not meaningfully begin until 2019, when the prosecution completed its production of classified discovery to the defense—eight years after bringing the charges and thirteen years after first detentions of the current defendants at Guantanamo. The panoply of discovery issues include: CIA black-site evidence, torture, Executive Branch miscalculation and symbolic policymaking, multi-agency involvement, secret law https://www.brennancenter.org/, the crude and remote location of the court, rotating personnel, and the complexities inherent in capital litigation in which the accused are given representation by defense teams funded by the Department of Defense. https://www.nytimes.com/2020/04/17/us/politics/911-trial-guantanamo.html.

Of the nine sessions (eighteen weeks) of pre-trial hearings scheduled for 2026, only two have occurred, for a total of two weeks—in March and May.

To date there are 57,000 pages of transcripts— 10,000 classified, 515 pages of appellate exhibits, 569,106 pages of motions and filings. All the transaction records are on file. There is video evidence, al-Qaeda propaganda, evidence combed from hotel dumpsters, from cars near airports, found in Afghanistan, Pakistan, the UAE (where 15 of the 19 hijackers transferred through), Osama bin Laden’s house, and DNA samples. Voluntary and proud statements from KSM were among the evidence seized. All five detainees gave confession statements to FBI “clean teams” at Guantanamo Bay in 2007 and 2008. There have been 184 witnesses, including enlisted people who were injured. Witnesses in the USS Cole case will also serve on the 9/11 case.

THE ACCUSED

The five formally charged al-Qaeda 9/11 planners are detained under the Law of War as “The Accused,” not an indictment. According to the Law of War, the accused can be detained until the end of hostilities. In 2009, “they answered to the charges with pride,” noted lead prosecutor, Clay Trivett. Meaning they can be detained in legal limbo until al-Qaeda and state-sponsors of terrorism enter into a peace treaty with the United States?

1. Khalid Shaikh Mohammed – KSM (Pakistan): “The Planner of the Planes Operation.” Proposed the plan to Osama bin Laden in 1996 and oversaw the plot. Entered plea agreement July 31, 2024.
2. Walid bin Attash – WBA (Saudi Arabia): “The Trainer” – Brought box cutters on board the planes for testing and training two of the hijackers and researched flights and timetables. Entered plea agreement July 31, 2024.
3. Ramzi bin al-Shibh – RBS (Yemen): Traveled to get jihadist training in Afghanistan and Organized the Germany cell of hijackers. Was going to be a leader of a pilot group. Became a conduit of communication between KSM and the hijackers. Severed from the case, due to mental incompetence to stand trial—Sept. 21, 2023. He may return to the case if deemed competent.
4. Ammar al-Baluchi aka Ali Abd Aziz Ali – AAA (Kuwait, Pakistan): Transferred funds from the UAE to the hijackers in the United States for his uncle (KSM). He also intended to be a hijacker. Continued with suppression litigation
5. Mustafa al Hawsawi – MAH (Saudi Arabia): Aiding the hijackers by helping some of them with finances, travel, and education on American culture. Entered plea agreement July 31, 2024.

THE CHARGES

KSM, WBA, AAA, RBS, and MAH are charged jointly, in their alleged roles in the September 11 2001 attacks against the United States. The accused are presumed innocent until proven guilty.

• Charge I: Violation Of 10 U.S.C. – Conspiracy: The accused entered into an agreement with leaders of al-Qaeda to aid, counsel, or command to murder multitudes of civilians. The accused knew the unlawful purpose. The accused knowingly committed an overt act in order to accomplish the same objective or purpose of the agreement or enterprise.
• Charge II: Violation Of 10 U.S.C. – Attacking Civilians
• Charge III: Violation Of 10 U.S.C. – Attacking Civilian Objects
• Charge 1V: Violation Of 10 U.S.C. – Murder In Violation Of Law Of War
• Charge V: Violation Of 10 U.S.C. – Destruction Of Property In Violation Of The Law Of War
• Charge VI: Violation Of 10 U.S.C. – Hijacking Or Hazarding A Vessel Or Aircraft
• Charge VII: Violation Of 10 U.S.C – Terrorism

THE JUDGE

Lt. Col. Michael Schrama was appointed as the 5^th military judge to preside over the 9/11 case in December 2025. He has inherited 9 major suppression issues and 95 individual rulings required to resolve those issues He must address all of the suppression issues requiring the 95 separate rulings related to three of the accused—AAA, WBA, MAH.

Completion of the evidentiary suppression hearings is considered stage 1 of the proceedings. Now the judge wants to get to stage 2—The written findings, conclusions, and rulings phase of the hearings. Victims and victim family members have voiced disappointment in the cancelling of proceedings at Guantanamo Bay since the final week of hearings that took place in May. The prosecution states “it’s better to not have hearings until spring 2027 so the judge has time to settle the 9 issues and write the 95 rulings.” However, on August 27^th, the military judge announced a trial scheduling order for June 5, 2028, which gives him greater latitude to rule on the suppression issues and hear motions from both prosecution and defense teams.

CURRENT PROSECUTION POSITION

The prosecution has completed suppression litigation regarding AAA. This can only occur after the judge issues rulings on the 95 suppression-related issues, which the prosecution encourages the judge to complete. Meeting the many pre-trial deadlines and motions recently ordered by the judge leading up to the trial is the current focus of the prosecution.

The lead prosecutor, Clay Trivett, has also recently taken over as lead prosecutor for the United States v. Nashiri in the U.S.S. Cole bombing case in addition to the 9/11 case. A case that has also met numerous delays, as the longest-running military case in U.S. history. A case in which KSM is also charged with planning. Evidence in regard to this case will likely point to facts in the 9/11 case.

CURRENT DEFENSE POSITION

Defense motions mainly related to AAA comprise most of the suppression-related issues.

There are two separate pre-trial agreement petitions filed—one for Walid bin ‘Attash and a second joint petition by Khalid Shaikh Mohammad and Mustafa al Hawsawi. These three defense teams have filed a Writ of Certiorari to challenge validity of the government’s petition for mandamus granted by the D.C. Court on July 11, 2025.

It is unclear if the case has returned to a capital death penalty trial. Because with the withdrawal of the PTA’s and the D.C. court’s grant for the government’s writ of mandamus, the PTA’s are now invalid— the judge has determined that the double jeopardy clause is no longer plausible, which the defense is appealing to the Supreme Court.

PRE-TRIAL AGREEMENTS RECAP

Over the course of two-and-a-half-years, Government Prosecutors and Defense Counsel worked together litigating all evidence, discovery, and witness testimony laying out and agreeing on the joint stipulations which serve as the architecture of the pre-trial agreements.

July 31, 2024, Susan.Escallier—the Convening Authority—had settled the 9/11 case by approving a prosecution plea deal with KSM, WBA, and MAH under which they would plead guilty and receive life sentences to be served in the Guantanamo Bay prison system rather than face the death penalty. Once the pleas were entered, the military judge would have issued a Sentencing Trial Order to begin jury selection, presentation of all of the evidence, witness testimony victim impact statements, and sentencing. The entire process was expected to take approximately eighteen months.

In January 2025, The Prosecution was directed by the government to file a petition for mandamus to nullify the pre-trial-agreements by upholding former Secretary of Defense Lloyd Austin’s withdrawal of the agreements approved by the Convening Authority, thereby overturning the CMCR’s (United States Court of Military Commission Review) decision to proceed with the PTAs.

Susan Escallier is a Brigadier General (Ret.) and 32-year Army lawyer, who was given authority in 2023 to preside over the war court system at Guantanamo Bay, by Secretary Austin.

Joint Stipulations and the Pre-Trial Agreements

The pre-trial agreements include seven charges and 107 stipulations, or statements of facts. The stipulation of fact is a written agreement between opposing parties in a legal case to accept certain facts as true. The primary purpose of stipulating facts is to eliminate the necessity to prove uncontested aspects of the case, thereby reducing time and resources for both the court and the parties involved.

The stipulations in the PTAs for KSM, WBA and MAH are the result of more than two years of deliberations between government prosecutors, defense counsel, and defendants. They have been carefully documented in more than 100 pages of charges and admissions, which were sealed with the evidence on July 31^st, 2024.

Writ of Certiorari

The defense is requesting a writ of certiorari—A court order issued by the Supreme Court to a lower court (like the D.C. District Court) to review the case for legal consistency and sound reasoning for the agreements. Initially, when the prosecutors claimed that the then-Secretary of Defense Austin validly withdrew from the PTAs, the courts disagreed on this and enforced the PTAs, leaving the CMCR (Court of Military Commissions Review) decision upholding the enforcement of the PTAs as the binding decision in the case.

On August 3, 2026, 9/11 Families for Peaceful Tomorrows filed an amicus brief in the Supreme Court with the hope in persuading “swing vote” justices to vote to take up the case and ultimately uphold the pre-trial agreements. Two prominent law professors have also filed separate briefs in support of a SCOTUS hearing—Professor Clair O. Finkelstein and Professor Stephen I. Vladeck.

The stated primary argument: “While no legal resolution can undo the pain of September 11^th, with the entry of the PTAs, petitioners felt that there was finally a clear path forward for evidence to be presented, for victims voices to be heard, and for these defendants to be convicted and sentenced.

RECENT CASE DEVELOPMENTS

May 26, 2026 – The newly-installed Military judge subjectively follies in how long torture can taint the case. Government-ordered TORTURE of MASS MURDERERS = ENDESS VICTIM TORTURE!

August 26, 2026 – The Pentagon announces that the Military Judge has issued a Government Fourth Motion for a TRIAL SCHEDULING ORDER, ordering the trial to Begin on June 5, 2028. The order contains numerous deadlines for both the prosecution and defense leading up to the trial date. Trial on the merits of the case begins with Jury Panel Selection (aka voir dire) from all branches of the military, followed by opening statements, witness testimony, and closing statements. In the event of conviction, the Military Judge has ordered a pre-sentencing hearing to begin within 30 calendar days after any finding of guilt for any of the accused.

This is a Capital War-Crimes Trial before a Military Tribunal, not a civilian federal trial. Pre-trial litigation must occur all over again with disputes over what evidence can be used at trial. Evidence which is subject to the prosecutions use of national security privilege to shield the information from the defense and the public. All of the evidence does not have to come out, nor will there be witness and victim impact statements as had been part of the Pre-Trial Agreements Sentencing Trial.

August 28, 2026– Judge throws out Key 9/11 Confession as Tainted by Torture, ruling that a confession elicited through torture is inadmissible. I can’t think of a greater insult to Victim civil liberties. 9/11 widow, P. Wotton says,” the U.S. government is ultimately a participant in preventing justice being granted to the deceased and their loved ones.” Writ large, it’s become glaringly clear that the G.H. W. Bush administration set up the black-sites and RDI program to obstruct discovery, accountability, and justice so we would never see all the evidence of the events, players, errors and deal-making that opened America’s gates for 19 al-Qaeda, western-jihad-crazed martyrs to murder my husband and thousands of innocent people on September 11th, 2001.

September 1, 2026– The Defense filed a Motion to Dismiss due to Apparent Unlawful Influence.

QUESTIONS

Earlier this month I wrote the defense counsel inquiring about new developments. I asked about the teams’ positions in the event that the Petition of Writ of Certiorari is not granted by SCOTUS, and if they’re seeking new motions.

“Team Mohammad” (KSM) asserts that Judge Schrama is not waiting to find out what the Supreme Court does or doesn’t do. He says the D.C. Circuit ruled that Secretary Austin withdrew from the PTAs and so he is pressing ahead with contested pretrial hearings, as if the PTAs never happened. Since the defendants signed the PTAs in July 2024, the defense has not sought to withdraw from the PTAs. Only the government has sought to withdraw. The defense has consistently argued that Secretary Austin’s withdrawal was improper and too late—48 hours after the Convening Authority, the military judge, the defendants, the government prosecutors, and the three defense teams signed the agreements and sealed them in the court. Team counsel state: “we see no indication that the government is currently interested in pursuing PTAs.” Yet, the defense teams continue to support enforcing the PTAs, including the provisions for victim families to ask questions directly of the defendants.

“Team Walid bin Attash” (WBA) states that if certiorari is denied by the Supreme Court, that will be the end of the Pre-Trial Agreements. The questions of whether the “poison-pill” provisions still apply and if there was unlawful influence involved in the government’s withdrawal remain as outstanding issues to be ruled on.

“Team Ammar al Baluchi (AAA)” (Not part of PTAs) reports that since the May hearing, the judge has pushed the parties to move forward on preparations for trial. On June 1, he issued an order which required both sides to make major discovery productions by July 31. In those two months, the government produced another 8,000 pages of discovery. Team AAA also produced several thousand pages of discovery. The order next requires the defense to file most of the remaining motions by October 30.

Litigation regarding the pre-trial agreements remains ongoing, as reported by the Victim’s Witness Assistance Program (VWAP-8/5/2026), and the case is currently pending consideration by the Supreme Court of the United States. Whether the Supreme Court (SCOTUS) decides to take on if the D.C. court’s July 16^th ruling was correctly interpreted— denying the defense motions— will be decided in its fall term.

None of the accused have withdrawn from the PTAs, nor are any of them requesting new motions.

In this great country of opportunity, sane and intentional mass murderers can die legally innocent while living full natural lives supported by American taxpayers, even as they trumpet their vainglory acts which cut short VICTIM’s lives, inflicted years of suffering on survivors, and cost family members a lifetime embattled pursuit of justice and restitution from their own government. Alien Enemy Combatant Terrorists can expect to be aided and represented by the very nation they attacked, while maneuvering the government into stripping constitutional rights and protections of the American citizens and visitors they CHOOSE to murder. Delivering justice to mass murderers who revel in killing us steals justice from Victims!

This year I will herald my husband’s name over the World Trade Center Reflecting Pools. I’m given ten seconds for personal comment due to the extraordinary number of additional events planned for this year’s landmark commemoration. Former Presidents Clinton, Bush, and Obama; former First Ladies, former NYC Mayor Giuliani, and Mayor Zohran Mamdani are scheduled to attend. (President Trump was asked not to attend because he wished to deliver a politicized speech, which the 9/11 Memorial and Museum prohibits.) Their presence at the hallowed ground of my husband’s grave, tinted with performative regard, punctuates the mercy they have afforded his murderers and the endless pain inflicted upon victims and family members through the obstacles they have placed in the path to justice.

Each time I return to Guantanamo, I tuck a small empty bag in my pocket. When court is in recess, I comb the sands of Windmill and Girl Scout Beaches– jagged with shattered conch and eroded coral– for shards of green, and amber and cobalt glistening in the sunlight. Fragments of bottled courage weathered by turbulent tides, their edges smoothed by the sea’s slow alchemy, glide from finger to palm, filling my bag as I choose which to keep and which to cast. This place can be beautiful. And, there is life in this place that will break you. I’ve given a home for the shards in a clear container in which a candle is steadied in their forgiveness. I’ve carried my grief in the world, and it has taught me how to carry the fragments and not be broken.

*Department of Defense remains as the “legal” title of the defense branch of the government. The “Department of War” is used only as an Executive Branch secondary title, rebranding the Pentagon in Executive communications and shifting it’s public-facing identity to “Department of War” August 24, 2026.

© 2026 Deborah Garcia, All rights reserved