THE SUCCESS THING
Posted on January 28, 2025 Leave a Comment
© Deborah Garcia 2025, all rights reserved
ALERT
Posted on January 28, 2025 Leave a Comment
January 27, 2025
What: Whether the Secretary of Defense lawfully withdrew from the pretrial agreements. When: The D.C. Circuit Court of Appeals has scheduled oral arguments for tomorrow (Tuesday, 1.28.25) 9:30 AM. Each side will have 20 minutes to argue. Where: You may view these arguments live on the DC Court of Appeals YouTube channel.
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 11th, 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 9th, 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 10th. 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 28th. 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 2nd, 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:
- Jury Selection
- Opening Statements
- 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.
- Closing Arguments: Summaries which aim to persuade the jury to adopt their perspective.
- 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:
- Entry of Guilty Plea to all charges
- 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.
- 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.
- Presentation of all Evidence to the jury panel, witnesses, and Victim Family Members
- Witness Testimony
- Victim Impact Statement testimony
- 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 31st, 2024. On January 8th, 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
THURSDAYS BRIEFINGS: Part 2 – The Press
Posted on January 15, 2025 Leave a Comment
January 9, 2025 – 5:30 PM
Journalists present:
- Eleanor Watson – CBS 1
- Alice Cuddy – BBC 2
- Carol Rosenburg NYT 3
- John Ryan – Law Dragon 4
- Terry McDermott – Author: 5 “Hunt for KSM,” 2012, Little Brown & Co. / “Perfect Soldiers,” 2006 Harper Perennial
Journalists filled the empty seats among VFM’s left by the members of the defense.One VFM declined to participate and departed.
VFM’s expressed their fears, wishes, and concerns to be emphasized in the press. We shared the statement made by one VFM, “we understand the complexity of the case. We hope for a court victory so it brings finality to this complex case. Of the 20,000 family members, many believe there’s only one way to have justice (death). There is a slim chance of what they want to occur.”
6:09 PM- “The stay was granted,” Carol Rosenberg announced.
Silent pause.
A wave of disappointment, anger, and tears moved around the foursquare.
For the three 28-31-year olds in the room, one who lost an uncle, two lost fathers, the complexities and denial of justice for the murders that have framed their developing lives is puzzling.
A VFM said, “by delaying this to the next administration, the Biden administration has failed the families of 9/11.”
A young family member said, “I’ve grown up watching my mom dealing with this grief and fight. There is no end to it! Tomorrow, we will board the plane with a deep sense of pain.”
Stateside, a VFM had booked a hotel near the new CCTV site in Farmingdale, NY to attend the anticipated entry plea for KSM. She shared in the disappointment when receiving news of the stay from VWAP this evening and frustration with the subsequent closing of the CCTV site for Friday morning.
A final thought – As the sun tilts toward the sea on the verge of my son Dylan’s 28th birthday, I am reminded of a little boy with his fist clenched around a miniature car, asleep on the couch, too overwhelmed by grief to blow out his #5 candle.
We are yoked to this political mastodon. With the continuous denial of justice for the accused jailed murderers, the government is painting the bars of the Victim’s Family Members’ cage.
Following the briefings, VWAP staff dashed to the office to draft notification of the Stay sent to all VFMs. By 8:00 PM they re-joined the families for supper at the Bayview Restauraunt, ending the evening in song for Dylan.
For journalistic details pertaining to this ruling and briefing with families, please refer to the following links:
- https://www.cbsnews.com/news/u-s-asks-court-stop-plea-agreements-in-911-architect-khalid-sheikh-mohammed-case/
- https://www.bbc.com/news/articles/c0kvklv7zjyo
- https://www.nytimes.com/2025/01/09/us/politics/911-khalid-shaikh-mohammed-plea-deal.html
- https://www.lawdragon.com/news-features/2025-01-09-dc-appeals-court-blocks-guilty-pleas-for-9-11-defendants
© Deborah Garcia 2025, all rights reserved
Cover Photo of myself and son, with permission of VWAP. All other Photos from personal collection.
THURSDAY BRIEFINGS: Part 1 – The Defense
Posted on January 15, 2025 Leave a Comment
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 20th, 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:
- Getting a jury panel.
- Government’s presentation of their case.
- Defense presentation of their case.
- Closing arguments.
- 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 17th, with a response expected on January 22nd, if the PTAs can be entered to the Military Court. If granted, plea entries could happen as soon as January 28th. 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 6th 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.
DISCUSSION OF THE WAY FORWARD: Open Session in the Military Court In the 9/11 Case
Posted on January 10, 2025 Leave a Comment
January 10, 2025
At 8:00 AM, 9/11 Victim Family Members (VFMs) boarded the Victim’s Witness Assistance Program (VWAP) bus in courtroom attire for our second, and final day of the 54th session of War Court proceedings held at the Naval Base, Guantanamo Bay, Cuba. Our Army Reserve escort driver stood outside the bus in salute for the reveille bugle call and the resonant recording of the military band’s arrangement of the National Anthem. Wearing our lanyard security badges, we entered the high security area of base and gathered at the VWAP family trailors for a quick briefing from staff and a final opportunity to grab a drink, snack, and unload our electronics before heading to the courtroom for the brief open court session. We took our charted seats in the galley behind the glass in the military courtroom – VFMs on the right side of the open curtain, media and NGO’s on the left. A Security Force guard read the courtroom conduct rules.
PRESENT IN THE COURTROOM:
THE PROSECUTION:
Representing the U.S. Government: Mr. Clay Trivett (Lead Prosecutor); Army Col Joshua Bearden (Prosecutor), Kim Waltz (Superintendant FBI Analyst); Navy Lt Com Travis Howard (information professional); Lt Col Megan Gentry (DoD Analyst), + two other support staff, and one staff seargant in the Remote Hearing Room (RHR).
THE DEFENSE:
Khalid Shaikh Mohammed – Gary Sowards (Lead Council); Maj Elspeth Theis (Detailed Military Council); Team support paralegals and support staff – Nicholas McCue, Gabriela McQuade, and Denny LeBoeuf. / Walid bin ‘Attash – Lt. Col D. Goldberg and one team member int he RHR. / Mustafa al Hawsawi – Sean Gleason (Lead attorney). Susan Lachlier, team support membes in the RHR. / Ali Ahmed Ali – AF Maj Rita Radostitz (detective of records). Lt. Jennifer Joseph in the RHR.
All Rise! (9:00 AM)
Military Judge, AF Lt Col Matthew N. McCall addresses the courtroom
THE DISCUSSION:
The D.C. District Court of Appeals issued an Administrative Stay on behalf of Khalid Shaikh Mohammed, Walid bin ‘Attash, and Mustafa al Hawsawi. The Appeals court will put out a briefing schedule for the ruling, which is unlikely to occur before the end of this month. The military judge suggests that the February 17-28th session may accommodate the guilty plea entries.
The Administrative Stay does not apply to Ali’s oral arguments motion to suppress the LHM (Letterhead Memoranda). The military judge assumes the next open session to commence Tuesday, January 21, since Monday is MLK holiday and inauguration day to hear the suppression motions for Ali.
Judge McCall requests that at least one attorney from each of the PTA teams remain on island next week and to be present in the courtroom during weeks 3 and 4 in case something comes up with these cases.
“See you in open session Tuesday, January 21st. The Commission is in recess!
All rise! (9:10 AM)
Victim Family Members returned to the hotel to dress down and rest until pick up at 12:00 to out-process and get boarding passes. We were then escorted to the VWAP family trailors to share in a wonderful bbq luncheon prepared by Mr. Will Andrew, OMC VWAP Victim Witness Specialist, members of the prosecution and reservists. At 2:00 some VFMs were returned to their rooms while myself, my son, and four others visited Windmill Beach to observe iguana’s and other wildlife concentrated in that location. I let the sea wash over my feet one last time before returning to the land of snow and ice in northwestern Vermont. We will all convene for a final supper and toast at the Bayview restaurant.
Tomorrow, 9:00 AM luggage will be collected. 10:30 AM, VFM’s will ride the ferry with most of the media, council and all of the VWAP staff for the departure terminal where we’ll have lunch. “We will board the plane still with that deep sense of pain — there’s no end to it.”
Our injustice is their restitution!
© Deborah Garcia 2025, all rights reserved
Feature photo by Deborah Garcia with permission from OMC VWAP.
D.C. District Court of Appeals Order
Posted on January 10, 2025 Leave a Comment
Victim’s Family Members (VFMs) were meeting with the press around 6:00 PM when notified by the NYT reporter that the Stay Order was granted.
The D.C. District Court of Appeals grants Emergency Stay to suspend Pre-Trial Agreements, blocking entry of guilty pleas and admission to 103 pages of charges scheduled to take place this morning, for 3 of the terrorists who murdered my husband and 2,976 innocent civilians, sickening thousands more.
Military Court convenes 9:00 AM this morning to discuss the way forward in light of the Stay order.
Though not surprised, VFM’s present voice disappointment in Government continuance of discontent for VFMs beyond the quarter century mark.
JUSTICE DELAYED IS JUSTICE DENIED!
Feature photo: Deborah Garcia Stephan Gerhardt, U.S. Naval Cemetery, Naval Station Guantámo Bay, Cuba.
“WE’RE STILL IN LIMBO” – Prosecution/Government Briefing with Victim Family Members
Posted on January 9, 2025 1 Comment
January 8, 2025
Prosecution met with VFMs at 3:00 PM Wednesday afternoon. Mr. Clay Trivett, Col Joshua Bearden, and Superintendant FBI Analyst Kim Walsh were present. Also present were Mrs. Danielle Redden – Director, Victim Witness Assistance Program Office of the Chief Prosecutor of Military Commissions, and Will Andreu, Victim Witness Specialist, Office of Military Commissions.
“We’re still in limbo.” Mr. Trivett commented that hearing Gary Sowards say, my client admits guilt, is a sign that they are all prepped for the plea. Mr. Sowards will plea on behalf of KSM Friday morning at 9:00 AM. Prosecution agreed to swear KSM to oath, swearing to God to tell the truth and, our fate being in the hands of God. In Military Court, swearing-in gets done by the Trial Council as opposed to Federal Court where swearing in gets done by the Court Clerk. Mr. Trivett states that KSM very much wants to explain everything he did and why. But this won’t happen during the plea, this will happen during the sentencing trial.
Regarding the Stipulation of Facts (SoF), it is important to the defendants that the SoF is accurate. It’s important to their religion to be truthful. Clay Trivett (Prosecution), Gary Sowards (Defense) and the defendants signed them together in July. Mr. Trivett emphasizes that the Military Judge will not delay this case. No one has directed the Government to file another motion to continue/stay. Just before midnight Tuesday, the District Circuit Court of Appeals ordered a quick briefing. The Circuit Court is poised to respond to a stay by 9:00 AM Thursday. The Military Judge and defense want to get the plea done quickly (likely due to the next administration coming in.) If the stay comes after the entering of the plea at 9:00 AM, Double Jeopardy applies. As things stand now, the stay is the first part of the continuance/delay of plea entry. Then the District Court has to agree with the writ of Mandamus that the Secretary of Defense is allowed to withdraw the PTAs. If there’s no agreement, the PTAs are valid. Tomorrow is a Federal Holiday, courts are open in limited capacity.
A family member asked where we are with Ramzi bin al Shibh’s case returning to the court? Mr. Trivett said that he anticipates his return by this Summer. Dr. Michael Welner and other’s who have been evaluating Ramzi will testify as expert witnesses that he is competent to return to the case. His mental health problems were documented as early as 2003. A diagnosis of a delusional disorder of a hallucinatory-type was attempted in 2008, however he was uncooperative to complete evaluation. He was later diagnosed with PTSD with psychotic features attributed to the CIA RDI program, however there is no recognition of this type of diagnosis in the DSM. He was removed from the case by the Military Judge in September, 2023. He appears to be rehabilitated and competent to stand trial now.
Another family member inquired about the timing of letters from the Pentagon to families regarding case updates. How is the media able to report updates to the public so far ahead of the government informing families? Danielle Redden explained that messages to VFMs have to go through the Department of Defense (DoD), the Office of General Council and now, additionally filter through the SoD before getting to families.
A family member inquired about Victim Impact Statements. Mr. Trivett explained that it’s likely the Military Judge will limit Victim Impact testimony, however, all interested family members (spouses, siblings, parents, children) will have the opportunity to enter Impact Statements either by letter or video as well. There will be two separate sentencing hearings. KSM and the two others, WBA, and MAH will be a joint sentencing. If AAA later joins with a plea agreement, he will join the latter two. If Ramzi joins the plea agreements, he will join KSM.
In regards to KSM’s sentencing request, the range of years of confinement are 2,976 to 3,424 total. The numbers are symbolic of the number of victims killed on September 11th, 2001 and a rounded number of rescue workers who died from the after-affects of the attacks.
There is no court Thursday in honor of Jimmy Carter day. The defense has until midnight tonight (Wednesday) to respond to the Solicitor General’s request for a stay (continuance). The Solicitor General has until noon tomorrow (Thursday) to send a reply to the defense’s response. It seems the District Court wants to hear from both sides before giving a reply.
Tomorrow (Thursday) VFMs will have an early tour of a restricted area on the Naval Base, meet with media, meet with KSM Defense Council, and attend Mongolian Night at the Bayview Restaurant for supper.
These have been challenging and complex times for 9/11 families. We all seek justice. We all want finality. How to achieve this in an ever-shrinking time span sways dramatically on the scales in the palm of Lady Justice. This indent in the southeastern province of Cuba simultaneously holds contrasting elements within her sheltered bay; serenity and calamity. A place where 4,000 peaceful people don’t lock their doors and fifteen of the most notorious murderers in our lifetime are locked behind theirs. Hopefully for the remainder of their waning lifetimes. I hope that my reports and personal narrative informs and strenghtens us.
Have a restful evening everyone.
© Deborah Garcia 2025, all rights reserved
Feature photo by Deborah Garcia
