AYESHA RASCOE, HOST:
Our top story - yesterday's shooting at former President Trump's rally in Pennsylvania that injured the former president and left two people dead, including the gunmen - we'll have the latest about this in a moment. But first, a legal case tied to the September 11 attacks that's been ongoing for nearly 23 years. NPR's Sacha Pfeiffer has been following this legal gridlock. She's made several reporting trips to the U.S. military court in Guantanamo Bay, Cuba, where this is playing out, and she's here to update us on the case. Hi, Sacha.
SACHA PFEIFFER, BYLINE: Morning, Ayesha.
RASCOE: So this saga has been going on for so long that we should first remind our listeners that Guantanamo Bay is still open.
PFEIFFER: Yes, and it always surprises some people when they hear that there are still prisoners at Gitmo. These are men captured in the so called war on terror. There are 30 of them still there. Many have been there for more than two decades, even though most of them have never been charged with anything. And there is a small group facing criminal charges for September 11. That includes Khalid Sheikh Mohammed, the alleged 9/11 mastermind. And it's that case, the KSM case, that has a proceeding that starts tomorrow.
RASCOE: And this case has been dragging on since 2001?
PFEIFFER: Yes, that is right. For one thing, it's happening in Cuba, which involves lots of cumbersome flying back and forth. Also, this military court was created from scratch, and there are still arguments about what rules apply there. But the main problem is that the 9/11 defendants were tortured in secret CIA prisons. That has created huge legal problems and fights over access to classified material. So, in theory, there will eventually be a 9/11 trial. In reality, few people believe that will ever happen.
RASCOE: So court proceedings are still taking place. So what happens at them?
PFEIFFER: For years, it was a lot of procedural stuff like legal motions. This particular one is getting more attention than usual because witnesses will be called to talk about torture, including a man who helped design the CIA's torture program. The big issue for a judge to decide is whether confessions by the 9/11 defendants were voluntary or coerced. And by the way, Ayesha, a judge in a different Guantanamo case, a case involving the USS Cole warship bombing, threw out a confession because he said it was a product of torture, and that has 9/11 prosecutors nervous.
RASCOE: The 911 judge also throws out confessions, does the 911 case come to an end?
PFEIFFER: No, because the ruling would almost certainly be appealed. But if the confessions were tossed, both sides might be motivated to try to negotiate a settlement agreement. Here's what a Guantanamo defense attorney named James Connell told me about that.
JAMES CONNELL: Anyone who is carefully following what's happening at Guantanamo knows that the prosecution case is in trouble, that the use of torture has in many ways doomed their efforts to prosecute this case. And a negotiated settlement was a good solution.
PFEIFFER: Note that he said a settlement was a good solution, past tense. That's because settlement talks had been underway. Defense attorneys had proposed that the defendants plead guilty and get a maximum of life in prison rather than the death penalty. But the Biden administration rejected some proposed conditions, like no solitary confinement. So the talks fell apart.
RASCOE: So could settlement negotiation start again?
PFEIFFER: Maybe, but for now the case is back to these pretrial hearings in Cuba. And Guantanamo has to be low on the Biden administration's priority list given the chaos involving the November election.
RASCOE: Taking a step back, let's remember that almost 3,000 people died in the attacks on 9/11, September 11 changed the course of our country, and thousands of victim family members are waiting for an outcome in this case. How do they feel about this taking so long?
PFEIFFER: Every relative I've talked with over the years is exasperated, but they are split over a possible settlement. Some want to push ahead to trial. They think important information could come out at trial, and they want to see these men executed. Other family members think there has to be another path. One of those is Elizabeth Miller. Her dad was a Staten Island firefighter, and she was 6 years old when he died on September 11. And this is how she says she felt when settlement talks collapsed.
ELIZABETH MILLER: Oh, my God, I was devastated. I feel like there will never be a trial. I still have hope that there will be a trial, but I think that the best path forward is through plea agreements. And for me, it's most frustrating that a plea agreement was available, and the Biden administration decided not to move forward with it.
PFEIFFER: You know, Ayesha, when you talk with her, you really get a sense of the hopelessness that many 9/11 family members feel. Listen to this too.
MILLER: How many years of this pretrial hearings are we going to have to put up with, where a plea agreement - there was an actual end in sight. But what I find with things at Guantanamo, it's always maybe two steps forward, six steps back, maybe six steps forward, two back. It's always in the same stagnant place in my opinion.
RASCOE: At this stage, how was the 9/11 case most likely to end?
PFEIFFER: I routinely ask that question of people in Guantanamo circles, and most people are at a loss. I want to play for you a longish exchange I had with a defense attorney we heard from earlier, James Connell. It began when I asked him if he truly expects this case ever to go to trial.
CONNELL: I don't know. I've stopped guessing. It's been a long time.
PFEIFFER: I'm just thinking it must be hard as a lawyer to keep going after a decade when you're actually not even sure whether it's going to trial or not.
CONNELL: There are incredibly important issues at stake in this case, including the death of many, many people and including a decision by the United States to use torture. And to me, it feels that we're doing important work whether it ever sees a trial or not. But eventually there will be some kind of resolution to the case.
PFEIFFER: Could it be because all or most of the defendants will eventually die and that's what ends the case?
CONNELL: It could. It's possible.
PFEIFFER: Really? That's an outcome you entertain.
CONNELL: They're getting older. Since the case started, they've gotten to be middle-aged and older men. And prison is hard life.
PFEIFFER: And Ayesha, when Connell calls this important work, he says he's talking about making a record of what happened on 9/11 and a record of what happened in the US torture program. So these lawyers keep pushing ahead even though trial seems increasingly unlikely.
RASCOE: That's NPR's Sacha Pfeiffer. Thank you so much.
PFEIFFER: You're welcome. Transcript provided by NPR, Copyright NPR.
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