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MILITARY COMMISSIONS SENTENCING HEARING TRIAL vs. FEDERAL CRIMINAL TRIAL – How Do They Compare? re. U.S.A. vs. KSM, et. al.

Posted on January 23, 2025     Leave a Comment

January 23, 2025

Will you ever put this behind you… Don’t you want to move forward?

This is the dismissive refrain that I hear from many people outside of the 9/1l community. A tool of cultural deflection to avoid uncomfortable societal truths. My response is always the same, this is my husband’s murder! 2,977 innocent people were murdered in one fanatical blow 23 years ago. The masterminds of this most egregious event of our lifetime, thrive in a government-funded detention center, passing time reading Danielle Steele and Nelson Mandela’s Long Walk to Freedom, un-convicted.

As the collective consciousness of the tragedy of September 11^th, 2001 fades, not only are VFMs aging, but so too are the forever detainees who were the instruments of an orgy of violence against our loved ones.

FACTS: ACCUSED	AGE	CHARGE
KSM (Khalid Shaikh Mohammad)	59	Planes Operation Mastermind
WBA (Walid Muhammad Salih Mubarak bin ‘Attash)	47	Trainer of Hijackers
RBS (Ramzi bin al-Shibh)	52	Organizer Hijacker Cell
AAA (Ali Abdul Aziz Ali aka Ammar al-Baluchi)	47	$$ Transfers to Hijackers
MAH (Mustafa Ahmed Adam al Hawsawi)	56	Aiding Hijacker

Twenty-three years since the mass murders (12 years since the accused first offered to plead guilty in a Military Court), the case of the U.S. v. KSM, WBA, RBA, AAA, and MAH remains in an abyss of political limbo, while the families of those murdered continue to be chained to a whipsaw of  legal impunity and the disquieted repose of their deceased loved ones yoked in the shadowy void of injustice. 

Currently the five accused are housed in communal detention at the U.S. Naval Base, Guantanamo Bay, Cuba as Law of War enemy combatants, where they have been housed since 2006. The case, which has remained under the jurisdiction of the Military Commissions, has whiplashed between two judicial systems and through five congressional administrations. The two judicial systems: Military Commissions – Department of Defense (DoD); U.S. District Court Federal Judiciary – Department of Justice (DoJ). Although the cases are being tried in a Military court, the prosecution is an arm of the government. The end result is uncountable delays and justice denied for VFMs. While due process is defended for the accused, it is consequently denied victims by the prosecution. They don’t work for us.

January 9^th, the D.C. Circuit Court of Appeals granted an “administrative stay” to temporarily halt the entry of pleas pursuant to the pre-trial agreements (PTAs) for KSM, WBA, and HAW that were set to begin the morning of January 10^th. The issue: did the Secretary of Defense (SoD) Lloyd Austin, lawfully withdraw from the pretrial agreements? The D.C. Circuit Court of Appeals has currently scheduled oral arguments for January 28^th. If the Court rules in favor of the Military judge’s ruling that the SoD’s actions constitute unlawful influence and are therefore invalid, the PTAs will be reinstated, once again, and another date will be set, (theoretically quick), for entry of the guilty pleas in accordance with the stipulation of facts.

If the Court rules that the SoD had lawful authority to withdraw the PTAs, the military commissions will be prohibited from conducting the hearings and entry of guilty pleas, pushing the case further into the unknown future.

At the end of the day, the PTA’s were signed by the accused, both the defense and prosecuting attorneys, and the military judge AF Col Matthew N. McCall, and the Convening Authority, Elizabeth Escallier, and sealed in the Court. on July 31, 2024 (before the SoD had rescinded the agreements August 2^nd, making himself the sole arbiter of the case).

Why did Secretary Austin revoke the plea deals? Because he holds personal belief that the Victim Family Members deserve a trial. However, what he is referring to is a criminal trial. One that takes place in the Federal Justice System, not the Military Commissions. https://www.npr.org/2024/08/02/g-s1-15201/9-11-plotters.

Yet, the Military Commission Tribunals are not devoid of trial. Quite the opposite. They include a sentencing trial, which reveals more evidence and testimony, ultimately resulting in more efficient and satisfying results for families.

What is a Law of War Unlawful Enemy Combatant?

A category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions. However, unlike unlawful combatants who qualify for some protections under the Fourth Geneva Convention, enemy combatants, under the Bush administration, were not covered by the Geneva Convention. https://en.wikipedia.org/wiki/Enemy_combatant

Components of a Sentencing Hearing vs. a Criminal Trial

Two critical phases within the criminal justice process are the criminal trial and the sentencing hearing. Both are integral to ensuring accountability and fairness, yet they differ significantly in their components and objectives. Highlighted below are the distinctive elements of each phase offering a comprehensive comparison to elucidate their roles and functions.

What is a Criminal Trial?

A criminal trial is the formal process through which the guilt or innocence of an accused individual is determined. It is a structured procedure that adheres to strict legal protocols to ensure a fair evaluation of the evidence and arguments presented by both the prosecution and the defense. The primary components of a criminal trial are as follows:

1. Jury Selection
2. Opening Statements
3. Presentation of Evidence: The prosecution bears the burden of proof and must demonstrate the defendant’s guilt beyond a reasonable doubt. This includes calling witnesses, presenting physical evidence, and introducing expert testimony. The defense has the opportunity to cross-examine witnesses and challenge the prosecution’s evidence. Subsequently, the defense presents its own evidence and witnesses to counter the prosecution’s case.
4. Closing Arguments: Summaries which aim to persuade the jury to adopt their perspective.
5. Jury Deliberation and Verdict

The jury deliberates a verdict. If the jury finds the defendant guilty, the trial proceeds to the sentencing phase. If the defendant is acquitted, they are released from custody.

The defendant may appeal the verdicts to higher courts.

A criminal trial is a process which involves the question of guilt with litigation of all charges and bargaining of charges and admissibility of all evidence and witness testimony. It is a hearing to litigate a determination of guilt.

What is a Sentencing Hearing?

A sentencing hearing occurs after a defendant has been found guilty or has entered a guilty plea. Its purpose is to determine the appropriate punishment for the convicted individual. Unlike a trial, a sentencing hearing does not involve the determination of guilt but focuses on the nature and severity of the penalty based on the scope and impact of the crime. The key components of a sentencing hearing include:

1. Pre-Sentence Investigation (PSI): Before the hearing, a pre-sentence investigation is conducted and a report is compiled for the Jury Panel and judge. The PSI includes details about the defendant’s background, criminal history, and the circumstances surrounding the offense. It also may contain recommendations for sentencing. For KSM, WBA, and MAH, this has already been completed leading up to the gathering of evidence and the stipulation of facts in the PTAs.

2. Victim Impact Statements: Victims of the crime or their representatives have the opportunity to present impact statements, either in writing or orally during the hearing. These statements describe the emotional, financial, and physical effects of the crime on the victims and can influence the judge’s sentencing decision.

3. Statements from the Prosecution and Defense: Both the prosecution and the defense present arguments regarding the appropriate sentence. The prosecution typically advocates for a harsher penalty, emphasizing the severity of the crime and its impact on the victims and society.

4. Defendant’s Right to Speak: The defendant has the right to address the court and present any information or arguments that may influence the judge’s decision. In this case, the defendants have agreed to allow council to speak on their behalf.

5. The Judge’s Decision:The judge considers all the information presented, including the PSI report, victim impact statements, and arguments from both sides, to determine the appropriate sentence.

With pre-trial agreements, the case is fast-tracked to the sentencing hearing phase, averting the lengthy components a criminal trial phase. In a criminal trial, the outcome is unknown and decided by a jury.

A sentencing hearing in the case of PTAs (KSM, WBA, and MAH) is a process which involves the presumption of guilt to all charges, the admissibility of all evidence, and testimony from witnesses and victims. It is not a hearing to litigate determination of guilt. It is a hearing to determine terms of sentencing.

In a sentencing hearing, the defendants have already plead guilty to all charges. They agree to and cannot object or litigate any of the charges and evidence. All of the evidence comes out in trial. Witnesses testify to the occurrence of the crimes. Victims testify under oath to the effects of the crimes. The purpose of this practice is to influence the jury panel to impose the maximum sentence. A Jury Panel deliberates and delivers the sentence.

Comparative Analysis:

While both a criminal trial and a sentencing hearings are essential components of the criminal justice process, they serve distinct purposes and follow different procedures:

• A criminal trial focuses on determining the guilt or innocence of the defendant, while a sentencing hearing determines the appropriate punishment for a convicted individual.
• In a trial, the burden of proof lies with the prosecution, which must prove the defendant’s guilt beyond a reasonable doubt. In a sentencing hearing, the focus shifts to evaluating various factors that influence the severity of the sentence.
• A trial involves a jury that deliberates and delivers a verdict, whereas a sentencing hearing is typically presided over solely by a judge. In Military Commissions, this also includes a jury panel of officers selected from all branches of the military.
• The evidence presented in a trial is confined to proving or disproving the charges, while a sentencing hearing considers a broader range of information, including the defendant’s background, victim impact statements, and recommendations from the pre-sentence investigation report.
• The outcome of a trial is a verdict of guilty or not guilty, whereas the outcome of a sentencing hearing is a specific sentence imposed on the defendant.

How is the Military Commissions Sentencing Hearing a Trial?

The Military Commissions Sentencing Hearing follows a Trial Practice Guide consisting of the following main components:

1. Entry of Guilty Plea to all charges
2. The Judge issues a Sentencing Trial Schedule and commencement of Jury Panel selection process. The Jury Panel is selected by the DoD, therefore sentencing falls under determination by the DoD.
3. Presentation of Stipulation of Facts (agreed upon charges and evidence). Includes 107 pages of charges to which all parties must respond “YES” when read by the judge.
4. Presentation of all Evidence to the jury panel, witnesses, and Victim Family Members
5. Witness Testimony
6. Victim Impact Statement testimony
7. Jury Panel Sentencing

In the Case of U.S. vs. KSM, et. al., The Pre-Trial Agreements (PTAs) include guilty pleas with all above-listed components of a Trial Practice Guide in exchange for a death sentence. The The recommendation is currently imprisonment in solitary confinement for a symbolically derived 2,976 years for KSM, and 3,424 years total (minimum) for all three defendants who have signed PTAs, at Guantanamo Bay, Cuba. All five of the 9/11 detainees are high value detainees (HVD) and not eligible for transfer.

What is Stipulation of Facts?

The stipulation of facts 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 of proving 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 two years of deliberations between both parties and defendants. They have been carefully documented in 107 pages of charges and admissions and sealed with the evidence July 31^st, 2024. On January 8^th, the stipulations were presented to the judge to discuss with prosecution preliminary issues related to KSM’s providence inquiry in open court.

The providence inquiry is a required discussion conducted prior to a military judge’s acceptance of a guilty plea during which the judge ensures that all parties agree on certain facts, and the defendant fully understands the offense, is factually guilty of every element of the offense, and voluntarily pleads guilty.

KSM was present in the courtroom when the defense council read the primary offenses which he admitted to, accepting the principals of liability as follows: “The Military Court understands that Khalid Shaikh Mohammed pleads guilty. That he has committed the offenses, aided, abetted, and commanded as a principal liable for causing acts of another, one who is liable actions for subordination as an operational commander. Does KSM understand?” “YES.”

Both defense and prosecution went through and hashed out the questions regarding term substitutions, problems, and edits in all 107 pages of the stipulation of facts.

This agreement was then submitted to the military judge, who incorporated the edited stipulated facts into the record.

This is expected to lead to a faster resolution and reduce the overall duration of the sentencing trial. In this case, there can be no more contested elements. All contested elements were resolved in the pre-trial hearings and meetings between KSM, WBA, MAH, defense counsel and the prosecution team.

By understanding the Stipulation of Facts, parties can contribute to a more streamlined and focused trial, ultimately aiding in the pursuit of justice. As such, the stipulation of facts plays a vital role in the administration of justice, helping to ensure that legal proceedings are conducted in a fair and efficient manner.

Once the pleas have been entered, the military judge will put out a Sentencing Trial Schedule. The schedule will delineate the timeline for all of the evidence to be presented in open court sessions, witness testimony, Victim Impact Statements, and the sentencing. All parties assert that this can all be completed by the end of 2026.

A criminal (death penalty) trial in federal court would unwind 12 (23) years of political panopoly that has brought these cases to the finishing line. It could take another 10+ years. How many more administrations? Delays? Family members die irresolute? If the accused die before guilty verdicts and sentencing, they will be deemed innocent for all time. Our departed loved ones, the immutable stain of American disgrace.

Last week, Dylan turned 28 while attending war court in Guantanamo Bay, Cuba for the first time, hoping to join his mother to witness the guilty plea entry of KSM, the mastermind of the 9/11 attacks. On this day, we sat in a boardroom with press when the announcement arrived that the D.C. Circuit Court had ordered an administrative stay, delaying the issue of justice into the next presidential administration, blocking the pleas set to be entered, beginning the next morning, by three of the five detained al Qaeda jihadists who murdered his father over 23 years ago.

I want to answer the question. I want to move my light in another direction. This murdered Victim has a name. David. I will always carry his substance on my back.

The content of this essay was procured from personal briefings with defense and prosecution teams as well as research including the embedded links and Microsoft 365 Copilot. I wish to thank Danielle Reddan – Director, Victim Witness Protection Program, Office of the Secretary of Defense, Office of Military Commissions, Office of the Chief Prosecutor, for her patience in answering my questions and explaining the complexities of legal terms and procedures in a way that is comprehendible and shareable. I also owe much gratitude to Chief prosecutor Adm. Aaron Rugh for his approachable demeanor, willingness and patience in answering questions, and his selfless gift of time and dedication to VFMs both on and off the boat. Although this case reaches outside the profundity of ordinary matters, some of which I may not like or agree with, in light of the years of circumstances that have brought us to the present crossroads in this case, I am appreciative of the personal and professional sacrifices both prosecution and defense teams have made over the course of nearly two decades to evaluate evidence, mediate testimony, and delegate the charges, transferring justice from the murderers of my husband and 2,977 civilians to the surviving families.

© Deborah Garcia 1014, all rights reserved
Cover photo: Davin Garcia – 8-Y, Nov. 2001, eulogizing his dad, David Garcia