830: The Forever Trial
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A quick warning, there are curse words that are unbeaped in today's episode of the show. If you prefer a beeped version, you can find that at our website, thisamericanlife.org. From WBEZ Chicago, it's This American Life. I'm Ira Glass. If you heard our show last week, you know that we're doing something unusual for these two weeks. We're featuring stories about Guantanamo made by our colleagues at Serial. And the one this week is really the one that killed me when I first heard it. It's about some of the very last people still at Guantanamo.

Five men who were accused of plotting the 9-11 attacks. Stories about their trial. And as Sarah Koenig points out, of everything that's happened at Guantanamo, the trial of these five men is the one place that you would think we could get to some kind of justice. And then, in this story, step by step and piece by piece, Sarah lays out why that seems so unlikely to happen.

The fact that these men were tortured in CIA black sites for years messes up their cases in all kinds of ways. But that is just one of the problems in the cases. And there's this one section of the story that I think is especially eye-opening, and that is the section where Sarah explains what's probably the best possible outcome we could hope for in these cases. And why, when that hits the news someday, if it ever happens, it's sure to be deeply misunderstood by lots of people. Maybe by most people. And so, with that...

I turn things over to serial host Sarah Koenig. Every couple of weeks at the bland hour of 5 p.m. on a Tuesday, a group of people you've never heard of clicks into a Zoom meeting. They're all family members of people who died on September 11th. Hi. Hi, everyone. Hi, everybody.

There's Colleen, a nurse practitioner in the Bronx, and Terry, a retired documentary filmmaker in Boston. Diane in Savannah, a retired ordained minister. Valerie, who used to work in nonprofits, and her omnipresent feline. Trying to get the cat's tail out of my face. Barry, a graphic designer in Oregon. Hey there. Oh, Barry got a haircut. And Phyllis in New York, a retired teacher who recently turned 80. You are not 80. I know I'm not. I'm not.

They've known each other a long time, many of them for a decade or more, through career changes and new grandchildren and health troubles. Well, well, well, yeah. What would we do without each other, huh? Yeah. The first meeting I sat in on, June of 2022, I assumed they'd be like a support group. Instead, the topic that day was the physical and mental well-being of the five men accused of orchestrating the attacks that killed their relatives.

If the men don't get the death penalty, and there's a very real possibility they won't, what should the men's punishment be? I think, you know, we're hearing that the 9-11 defendants don't want to leave Guantanamo. No, because they think they're going to Florence, Colorado, which is very uncomfortable or worse compared to Guantanamo.

Florence, Colorado is the site of a federal supermax prison. Unless you're a federal crime buff, I'm guessing you might not be able to name anyone incarcerated in Florence, Colorado. These guys can. Um... Wasawi. Wasawi, Hanson, Zernoff. Kaczynski. Ted Kaczynski. That's Colleen.

She tells the group she'd be fine with Khalid Sheikh Mohammed, the alleged mastermind of 9-11, ending up in a place like Florence. She doesn't want him put to death or tortured, but solitary for the rest of his life would be okay with her. Valerie agrees. Others think Florence is too harsh. It's awful. I think it's like being buried alive, in a sense. You know, you're underground.

23 hours a day with the light on in your cell, and you get an hour outside if you behave. It's a really inhuman place. It's very, very strict, yeah. Everything about this call seemed upside down. That this group of people would care about a humane future for the 9/11 defendants. That the defendants might want to remain at Guantanamo. That the last people you'd think should be dealing with any of this end up dealing with all of this.

And they weren't just doing a thought experiment here. Their positions matter. Of the many family groups that formed after 9/11, this is the only one closely monitoring the trial of the 9/11 accused, the only one whose members traveled to every court session held for the case. Collectively, they've watched hundreds of hours of court proceedings, filed multiple amicus briefs. They research deeply, stake out common sense but often unpopular positions, and lobby aggressively for those positions.

This group is called September 11th Families for Peaceful Tomorrows, after Martin Luther King Jr. quote, Wars are poor chisels for carving out peaceful tomorrows. All the members are peaceniks. That's what brought the original members together in the first place. Their opposition to the U.S. bombing campaign in Afghanistan a month after the September 11th attacks. And especially right then, spring of 2022, this group had some political juice.

The 9-11 case was at a turning point. It had been in pretrial hearings for 10 years already. 10 years of waiting for someone to be held responsible for the deaths of their family members. And now a solution was maybe in sight. Peaceful Tomorrows had long pushed for this, for an ending. Liz, one of the younger members, tells the group she's a little conflicted. She's always been for closing Guantanamo. It's been one of the group's steadfast positions. Close it.

But then she visited the base again recently, took in the whole clattering machine of the case, and now she's not sure. Maybe it does make more sense for the 9-11 defendants to serve out their sentences at Guantanamo, to not close down the facility. You know, it did make me question what closing it would mean and what all of this, like, what's next? What's next for us? What's next for the detainees, the attorneys? And what does justice look like for us? But what does justice also look like for them?

Yeah. Something that I never even thought that I would sit there and think about. Like, I never in my life thought I would be concerned about like five people who are responsible for doing what they did. I never thought that that would happen. Liz was six years old when her father, a firefighter, was killed at the World Trade Center.

And now here she was, 27, working as a city council person in her hometown, planning her wedding on the side. And on the side side, trying to think through one of the most morally and legally complex criminal cases in American history. Most aspects of Guantanamo can fairly be described as perverse. To wit, we grabbed close to 800 men, flew them to Cuba, even though most of them were nobodies, low-level fighters at best.

Some weren't our enemies at all, hadn't done anything against us. Many of them we treated with a level of brutality that would have been illegal on U.S. soil. The vast majority, more than 95%, we never charged with a crime. We'd shipped all these prisoners to Guantanamo without a solid plan for letting them back out. Many people sat there for two, three, five years, and some 12 years, 14 years, 16 years. We didn't know what to do with them.

Thirty men are still held at Guantanamo. Of those 30, half have been cleared for transfer, just sitting there. But the one thing that at least seemed logical about Guantanamo was the 9-11 trial. The idea of it was clear. We held in our custody the men we believed were behind the attacks that killed nearly 3,000 people in the United States and kicked off two decades of war. If anyone was our enemy at Guantanamo, it was these men. If any justice was to be had, it was through this trial.

But once I looked at it carefully, I had a gather-round-everyone feeling. Gather round and get a load of this. The 9-11 case, one of the most important cases in history, inspires a shocking question. Not how's it going to end, but will it end? Ever. Colleen Kelly, the nurse practitioner, was my main guide for the 9-11 trial. So to explain it to you, I'm going to stick with her.

Colleen's brother, Bill Kelly, died on September 11th. He was 30 years old. He worked in finance, something E-trade. Colleen never fully understood. But she used to visit his fancy Bloomberg office. He'd visit Colleen in the Bronx, play with his niece and nephews.

On September 11th, Bill happened to be at the World Trade Center for a conference. So it took a few hours before the family figured out he was in the building. My parents, my mother in particular, have been calling me, like begging me to go to New York and look for Bill. Around midnight, Colleen headed into Manhattan with a friend to look for Bill. And they performed the same impotent itinerary of hundreds of other family members in the shell-shocked city. Walking, walking, emergency room to emergency room.

Colleen and her parents and her siblings populated a sudden demographic, which eventually would squeeze into a military acronym, VFMs, Victim Family Members. They'd eventually get their own section of the airplane that flies down to Guantanamo, their own escorts and drivers on the base, their own curtained-off seating area inside the gallery of the military court, their own press conferences. All that was years away. In the moment, right after the attack, Colleen tried to find out what happened to her brother.

Not the general outlines. She had to know exactly what happened. Became obsessed with understanding his last day. I want to know what my brother was thinking when he was trapped on the 106th floor. I want to understand, was he panicked?

Was he OK? Was he hopeful? What was he thinking? Like, it became very, very important to me. Like, give it, give it, give me everything. Give it, give me everything right now. Like, I want to know everything. I don't know if Bill jumped. I believe he did. I became obsessed with that question in the fall of 2001. She went about answering that question methodically, like a detective.

Several weeks after 9-11, Colleen's family found out that Bill had sent BlackBerry messages to his boss at Bloomberg after the plane hit the North Tower. The last message Colleen saw was from 9-23 a.m. There was a whole hour to go. The North Tower didn't collapse until 10-28. Colleen fixated on that last hour, on Bill's last minutes. Bloomberg also gave Colleen's family photos of Bill from that morning at Windows on the World.

It turned out they'd hired a photographer for the event, who'd left just before the building was hit. Colleen spoke with the photographer, studied her pictures. In one of them, Bill's talking with a man Colleen didn't recognize, receding hairline, glasses. That spring, the New York Times published a big story, a TikTok of the final 102 minutes of the towers. Colleen examined the grainy zoomed-in shot of people teeming at the blown-out windows. In one of them, she thought she recognized Bill.

So Colleen contacted that photographer, went to his studio in Lower Manhattan. He gave her an enlarged print to take home. She stared at it. Yes, it looks like Bill, she thought. He's at an open window. She sees the back of his head. His arm is reaching across the vertical window frame, reaching out to another man, receding hairline, like the guy from the Bloomberg photo. Maybe Bill knew him. They're holding on to each other's arms. This photo is partly why Colleen thinks Bill jumped.

Also, they never found any remains of her brother, while other bodies were recovered from the 106th floor. Eventually, Colleen was able, as she says, to let it let go. She realized excavating Bill's last minutes was her way of trying to take away some of the pain and fear her brother must have felt, a way to absorb it into herself, which was impossible. The energy Colleen put into tracking Bill's last hour, that ferocity for uncovering information, and that fealty to facts, no matter how distressing,

Now multiply that a thousandfold. And that's what Colleen has dedicated to the 9-11 trial. She's been to Guantanamo well over a dozen times. If she can't watch the trial in person, she'll sometimes go to a remote viewing station at Fort Hamilton, an Army base near the Verrazano Bridge in Brooklyn. When hearings aren't in session, which is most of the time, she calls up experts and attorneys to ask questions and talk strategy. Before I knew better, I thought the actual trial of the 9-11 accused might not matter all that much to Colleen.

Five men languishing at Guantanamo, in prison for 20 years already, unlikely to ever be free. Why would a trial affect Colleen's life? Her busy life, by the way. She set me straight. She did care. Yes. Yeah, yeah. Hugely. Because, you know, if Bill was killed on a street corner in Manhattan where he lived...

Of course I would be at that trial every day when it came to a trial. It's like you want to know all the facts. You want to know how this happened, who this person was, what went on, and have people be held accountable. So yes, I was always really, really interested both in the trial as a form of accountability, but also what the hell?

happened that day? This sounds ridiculous that I'm saying this to you right now, 22 years later. No one knows

How did Khalid Sheikh Mohammed do what he did? How did the hijackers get their money? How did they get on planes? Who knew what, when, how? How are all these other guys, the other four men, how are they involved? So I'm intensely, obsessively wanting to know how this all happened and why. Don't you feel like you know why they did it? No. I've been told-

Keep in mind, Colleen has looked at everything she can get her hands on about how and why 9-11 happened. Government reports, statements by the 9-11 accused, books by prominent journalists,

Most extraordinary to me, she spent years visiting a former member of the militant group Weather Underground in prison. She wanted to know what it felt like when your belief system carried you past natural boundaries to extreme violence. But none of it satisfied her. In this case, Colleen needs primary sources. She needs specific answers that are still locked inside these specific defendants. The trial would unlock them. That's what trials are for.

The military commissions at Guantanamo were supposed to be our Nuremberg trials, when the Allied powers prosecuted Nazis and German leaders immediately following the Second World War. The Nuremberg trials were huge, efficient, and by many measures, successful.

Oh, whoa.

What is that? On Colleen Kelly's wall hung a handmade primer explaining the military commissions, the opposite of the Nuremberg trials in terms of efficiency and success. This is the weirdness. Just explain what I'm looking at. Behind her bedroom door was a waterfall of paper, giant presentation-sized sheets describing this special court created to try a handful of Guantanamo prisoners we charged with terrorism or war crimes.

The 9-11 case was meant to be the main event. This is really helpful because we all forget about the charges against the 9-11. This document was for an explainer she did years ago, but Colleen was keeping it here because so much time had passed since the 9-11 criminal case started, she sometimes forgets the basics.

Also, I suspect, because the case has emulsified into her waking life, so that she hardly noticed that an enormous, handwritten record of judicial disappointment occupied physical and mental real estate in her bedroom, spitting distance from her pillow while she slept. It's not good.

You could age it by the judge Colleen listed on one of the sheets, Judge Pohl. He lasted the first six years, until 2018. Then came Judge Perella, who left after nine months. Then Judge Cohen came in, pledging continuity, so important in a case of this magnitude. Less than a year later, Cohen retired.

Then Judge Watkins stepped in temporarily until Judge Keene came aboard. Judge Keene lasted two weeks. He had conflicts. Then Judge McCall, but McCall had been a judge for less than two years, which was against the rules, so Judge Watkins stepped in temporarily again. Then Judge Acosta babysat the case for a minute until Judge McCall came back once he had two years' experience under his belt. Judge McCall is the current judge on the 9-11 case. He's announced he might or might not be retiring at the end of this year.

Like, no joke, on January 1st, I saw some friends that I haven't seen in a long time, and they know that I'm very active in this work. And they asked kind of what's going on. And I started to explain. And I see this is a guy who's a lawyer, and he's really smart, and he's really engaged on issues of great importance around the globe.

And I just see, like, after a while, just glazes over. Yeah, I was kind of bummed out. Do you get the sense they don't believe you? Like, they think you must not understand what's happening because it can't be that bad? Or literally, it's just too complicated? It's too complicated. It's too complicated. Because if you start to say something, you say a sentence, you realize you have to say another sentence to explain it.

Because there's no way, there is no elevator pitch for this. No elevator pitch, okay. But how about we take the stairs, you and me, all the way to the top, and you lend me those, I don't know, seven minutes, and I'll spin you through this FACACTA case and this FACACTA court so you can understand the bind the 9-11 case is in right now.

After we captured the five defendants, the men we believed plotted and carried out the 9-11 attacks, we held them in CIA custody, in black sites around the world, and we tortured them. After three, four years, we sent them to Guantanamo in September of 2006. A couple of false starts later, the men eventually were arraigned in May of 2012 at a military commission in Guantanamo Bay.

The five defendants were Khalid Sheikh Mohammed, Waleed bin Attash, Ramzi bin al-Sheba, Ammar al-Baluchi, and Mustafa al-Hausawi. In the courtroom, they would each sit in a different row, one behind the other, in the order they appear on the charge sheet, KSM to Hausawi. So how is this court different from all other courts? And why doesn't it work? Any normal lawyer hearing what I'm about to lay out here is probably going to be horrified or else think I must be mistaken. I am not mistaken. Here we go.

In normal criminal court, a defendant has a constitutional right to confront his accuser. So if I accuse you of assault, say, I have to come to court, take an oath, and testify in front of a judge or jury. In the military commissions, they'll entertain a jacked-up form of hearsay evidence, which means an FBI agent can take the stand and say, Years ago, I went to a police station in Yemen, and a Yemeni cop brought me some witnesses he had already interrogated, and I talked to all of them, and I wrote down what they told me.

But those original Yemeni witnesses don't have to be called in or take an oath or answer any questions because the agents who spoke with them don't even know how to find them anymore. The Yemenis' secondhand statements, made through an interpreter, mind you, can be allowed as evidence in the war court at Guantanamo. And these aren't any old criminal cases. These are capital cases, death penalty cases.

As one former military defense attorney said to me, allowing that kind of hearsay, quote, that would happen nowhere else. That's absolutely insane, unquote. Also, torture. Statements derived from torture or cruel, inhumane, and degrading treatment cannot be used in federal court, period. But in the military commissions, it's mushier. Something I said while I was being tortured, you can't use that in an actual trial.

But it's still in dispute whether the government could use my torture-derived statements in pretrial hearings or use something my neighbor said about me while he was being tortured. And, and this is the central issue now, they might be able to use at trial statements I made after I was tortured. Also, all the classified stuff. It is mind-boggling, the profusion and confusion over what is classified.

In the military commissions, the accused isn't allowed to see all the evidence against him because classified. A ton of it. And it's not just documents the defense can't see. A large number of potential witnesses, people who worked in black sites say, their identities are classified. The defense can't call them because they can't identify them. And if they do happen to know the name of a CIA employee, current or former, they aren't allowed to contact them directly. So those are some of the baked-in problems.

Now to the weirder stuff. The cases from the outset have continuously fended off, let's call it interference, intrusion, infiltration, spying, basically. The first big incident that made the news was in 2013, just as the case was getting underway, the Kill Button incident.

One Monday afternoon in court, a lawyer for Khalid Sheikh Mohammed was talking about evidence from CIA black sites. And when he said the word secret, the CCTV feed from the courtroom cut off, meaning anyone watching from the spectator's gallery or remotely suddenly heard nothing. White noise filled the speakers.

The judge and the security officer sitting to his right, they do have the ability to cut the feed to avoid classified spills. But in this instance, the judge hadn't pressed the button, and neither had the security officer. Someone else, some external body, had cut the feed. And the judge didn't know who, and he was pissed. All kinds of questions erupted then. Who was listening in? What else could they hear? Was this the CIA? Did the CIA just drown out information it didn't want anyone talking about?

Who was in charge of this thing? Who was really in charge? The kill button was only the beginning. In attorney-client meeting rooms, spaces that are supposed to be sacrosanct, they'd find hidden mics in the shape of phony smoke detectors or else hidden in the walls. The FBI would pry inside a defense team, in one instance turning a defense staffer into an informant. An interpreter assigned to the defense seemed to have had a previous job at a CIA black site. So who was he really working for?

All this bugging and snooping, it was hard not to conclude, was an effort to undermine the cases, to keep evidence and documentation of what happened to the men in black sites from becoming public. This is what the CIA feared, and still fears, secrets of the torture program becoming public. The CIA didn't offer any comment about this when I contacted them.

Torture has infected almost every aspect of the military commission's cases. It's why so much of the discovery is classified or not available at all. It's why the men's physical and mental health is a constant topic. It's why fighting over admissibility of evidence in the 9-11 case is epic. It's why delays and breakdowns in the proceedings are legion.

Every one of these problems, the kill button, the hidden mics, the classification arguments, the medical issues, and countless frequently ridiculous others that I do not have time in our journey here to name, all of it has involved litigation that causes months or half a year or several years of delays.

And that is how a case which could have been, I don't know about a slam dunk, but vastly easier, surely. Remember, KSM has admitted planning 9-11. But this case is now entering its 13th year of pretrial hearings. Finally, last thing, I promise, appeals. Many, many legal experts who've looked at the 9-11 case agree that a verdict in this case cannot survive appeal, which likely eventually would end up in the Supreme Court.

In a statement to lawmakers, a Marine Brigadier General who served as Chief Defense Counsel for the Commissions wrote that the myriad defects mean that, quote, "There are literally so many significant grounds for potential reversible error that it is impossible to list them all," unquote. And appeals, of course, take their own sweet time. The appeals could add another decade to this case easily. So for family members of victims of the 9/11 attacks, watching the military commissions has been like trailing a mirage.

You can hear their mounting disillusion in the VFM press conferences from Guantanamo over the years. At first, a lot of them, they thought it could work. I'm very honored to be here and see how our justice system works and the transparency

because the world needs to see that. That's from a press conference in 2012, when the 9/11 defendants were arraigned. Two years later, you hear people start losing their patience. If we could feel we were moving somehow forward, towards a resolution. This woman talked about how she'd been down in Guantanamo once before, in 2009, and watched a mental competency hearing for one of the 9/11 defendants, Ramzi bin al-Sheba.

Now, it was 2014, and she was back, watching a mental competency hearing for one of the 9-11 defendants, Ramzi bin al-Sheba. But here we are standing in place since 2009 to 2014, five years standing in place, and it's painful. By 2017, you hear desperation. And I don't think this is going to be resolved in my lifetime. And, um...

After 2017, prosecutors stopped meeting with the media. For Peaceful Tomorrow's members, Colleen told me 2017 was also the year they realized, oh, this is never going to work.

We've had it. Like, now we've had it. This is, it's endless. It's always, there's always something and there's always going to be something. That's when it's like plea deals. Plea deals. The prosecution was still insisting they could get this trial done, get guilty verdicts against the 9-11 defendants. But Colleen and Terry and the group members had lost faith.

They could see clearly now. The military commission system was a failure. Forget about a trial. The only logical solution to ending this thing, to getting a conviction that would stick, to getting the answers they wanted, plea deals. Anyone could see that plea deals were the way to go, right? That's after the break. Indeed it is. Coming up, other 9-11 families and how they feel about negotiating a plea deal with the alleged 9-11 planners.

Sarah Koenig comes back from Chicago Public Radio when our program continues. This is American Life with Myra Glass. Today's program, The Forever Trial. We're playing the second of two stories that we're running from the new season of Serial, which is about Guantanamo. Sarah Koenig picks up where we left off before the break. The idea of a plea agreement was that if the government took the death penalty off the table, maybe the 9-11 defendants would plead guilty and give up their right to appeal. The case would be over.

The plea would include an extensive, likely months-long sentencing hearing, almost like its own trial. And such a hearing would include a stipulation of fact. This was key to Colleen, a stipulation of fact, a narrative in which each defendant would explain with precision exactly what they had done to make 9/11 happen and exactly why they had done it. And that's how, through a plea deal, Colleen could get the answers she needed.

But a plea deal in the 9/11 case, for a lot of people, that's a tough sell. Because it's the 9/11 case. It's emotional. And a plea deal sounds wrong, like the government's giving up or just doesn't care anymore. And no death penalty for the people responsible for 9/11? Why would anyone ever make a deal with these guys? That is an understandable response.

especially if you have no idea how dysfunctional the court is. And let's face it, very few people have clocked the ins and outs of the 9/11 case, including most politicians. While President Trump was in office, a plea deal in the 9/11 case was a nonstarter. Come 2021, though, a few remarkable things happened to shake up the military commissions. First, the long-serving and forceful chief prosecutor, a general who'd been committed to a death penalty trial, announced he was retiring.

His replacement, Colleen thought, might be more amenable to a plea. Then came the sentencing hearing of Majid Khan. The military jurors' response to hearing Majid Khan talk about being tortured, their recommendation for clemency, offered a clue as to how the jurors might react to the torture of the 9/11 defendants, one of whom, as a result of being sodomized in CIA custody, has to sit on a cushioned chair in court and eventually underwent rectal repair surgery.

In other words, even if prosecutors got a conviction at trial, they might not get a death sentence. Soon after Majid Khan's sentencing, the Senate Judiciary Committee held a hearing titled Closing Guantanamo. The only victim family member who testified was Colleen. Her message was strong and sad.

Family members who wanted and needed this trial to happen, she said, had already waited too long. In May of 2012, I sat with my dear friend Rita Lazar watching the arraignment of the 9-11 accused. Rita's brother Abe died when he stayed behind to assist a disabled co-worker on the 27th floor of the North Tower. Rita is now deceased. In 2017, I was on the plane to Guantanamo with Lee Hansen, the only 9-11 family member to be deposed in the pre-trial hearings.

Lee Hansen lost his son, his daughter-in-law, and his granddaughter on Flight 175. Mr. Hansen is now deceased. In 2019, I was on a boat crossing Guantanamo Bay with Alice Hoagland, mother of Flight 93 hero Mark Bingham. Alice Hoagland is now deceased. Colleen and her cohort had always been the hippie 9-11 group. Anti-war, anti-violence, anti-Guantanamo.

In the world of victims' family members, their views were squarely in the minority. But now, two decades later, it seemed the national mood had shifted, vengefulness had dimmed, and Colleen was invited to the table.

Five other people testified as well, non-hippies, conservatives, a couple people who'd been Guantanamo boosters back in the day, who'd helped design detainee policy and the military commissions under President Bush. And now nobody was arguing. Plea deals. It's the only way. I thank you again for your invitation and for your time and attention. Thank you, General.

A few months after the Senate hearing, in March of 2022, the newspaper announced prosecutors and defense attorneys were in talks. They were negotiating a plea deal in the 9-11 case. Finally. That same spring is when I started listening in on the Peaceful Tomorrow Zoom meetings. Colleen and the rest of the group knew a plea agreement and sentencing would take some time. One attorney on the case estimated 18 months.

Their strategy was to stay cool, which the lawyers negotiating the deal had also recommended. Yes, the plea talks had been in the papers, the news was out there, but still they decided, let's not make a lot of noise. No big public push. The risk of riling up opposition was too great. This thing was so fragile politically. Even minor blowback could snuff it out. So they'd lie low. The meetings, though, were animated.

The group worked on a list of questions they wanted the defendants to answer in the event of a sentencing. Questions some of them have harbored since 2001. Who knew that there were 20 hijackers and how they were getting their tickets? They want to know, who was the financial mastermind? Was it KSM's nephew, Amar Al-Baluchi? Did he communicate to so-and-so that he was making this transaction? Is that maybe what you're more after? And what were they told about why the transaction was made?

The finances are a big topic with this group, not only because they want to understand the inner workings of the plot, but because they want to understand the relative guilt of the five defendants. Is Ammar al-Baluchi less culpable than his uncle, Khalid Sheikh Mohammed, but more culpable than Mustafa al-Hausawi? They pass their questions along to a defense attorney working on the 9-11 case. A defense attorney. At first, this surprised me, but they were talking to defense attorneys as much, if not more, than they were talking to prosecutors.

And then they waited. Six months passed. Eight months. By December, nine months since the plea negotiation started, everyone was getting antsy. So I just, boy, this is beyond any kind of advocacy I've ever done before. Hearings in the 9-11 case were on hold while the prosecution and defense tried to work it out. They were supposed to agree on so-called policy principles by now, which is a dry term, but it was the meat of the deal.

If the men pleaded guilty, what would they get in return? The policy principles mostly had to do with the conditions of the men's imprisonment. They wanted assurances that as long as they were in prison, they'd have a communal situation like they have now. The ability to eat together and pray together. No solitary confinement. Also, they wanted proper, sustained treatment for their physical and psychological trauma caused by the torture. And the ability to communicate better with their families.

For the plea to progress, the prosecution needed an answer from the Biden administration, whether they supported the policy principles. But Biden wasn't saying anything at all. The one-year mark came and went. Now it was March of 2023. Still nothing. Valerie's cat was dying. When you pet him, you have to be so careful because he's all bones, you know? Liz's wedding was off. She was now running for mayor.

Phyllis suggested maybe they take a breather, get some distance from all the discouragement. Jay Cannell, a defense attorney, came to a meeting to give an update, which was no update on the deal, really. But he did have something to tell them. So I have now seen a draft of the proposed stipulation of facts, and it is extensive. It is 200 pages long. That's the document Colleen and the others are waiting for, the main thing they want from this plea —

In the 200-page statement, Jay's client, Amar Al-Baluchi, had laid out his background, how he ended up in this situation at such a young age. Then he talks about 9-11.

It's really a deep examination of who exactly did what in the plot around 9-11. I mean, it's very detailed on that point. Finally, there's a section about what happened to him in prison. So, you know, this 200-page document really dives deep into, I think, basically any question that anyone would have. Liz has a holy shit look on her face.

Later, she told me that's what she was feeling. Holy shit, this information is out there. And why do we not have it? One of the five defendants had answered their questions in a document they couldn't see. Not yet. Not unless there was a plea. But it was something. And then, August of last year, the public suddenly woke up. It was the government who woke them, not Peaceful Tomorrow's.

The prosecution sent a letter to 9-11 victim family members to a much wider group than usual, some of whom hadn't been contacted about this case in forever, letting them know the plea negotiations were happening and seeking their opinions or concerns. And oh man, did they need an editor for this letter. Robotically matter-of-fact, lousy with acronyms,

Sure enough, nearly a year and a half after the plea negotiations had first been reported, a whole new crop of people did have opinions and concerns. They called the prosecution office. They called the press. They called Capitol Hill. The AP ran a story. Plea negotiations could mean no 9-11 defendants face the death penalty, the U.S. tells families.

conservatives made immediate hay. Ted Cruz took to his podcast. This story is absolutely outrageous. And I think everyone hearing it should be shocked and should be furious. Family members expressed outrage on TV. I feel like the Biden administration should order them not to accept this plea deal. More than 2,000 victim family members wrote an open letter to the president protesting the plea deal.

Peaceful Tomorrow's members were feeling like, ugh, if they could just gather all the family members in the same room and explain everything they knew about how broken the military commissions were, maybe the others would see they were never going to get a trial or the death penalty. If they wanted answers or any shred of accountability, a plea deal was the best they could hope for. Within a couple of weeks, President Biden broke his silence regarding the plea deals.

Well, he never said anything publicly, but a line in a prosecution court filing said the Biden administration declined the so-called policy principles. Biden was not on board. He would not support an assurance of no solitary confinement or an assurance of torture rehabilitation. For the past year and a half, no one had seemed clear on what role the White House was playing in these unprecedented plea negotiations, in this unprecedented criminal case, in this unprecedented court.

Maybe the president really disagreed with the terms of the deal. Or maybe in September of 2023, it just came down to RealPolitik. He's coming up on an election. And perhaps the mother of all bad Guantanamo headlines is the one that says you're negotiating sleeping arrangements and therapy with Khalid Sheikh Mohammed, the man who claimed to have beheaded Daniel Pearl and orchestrated the most devastating terror attack in modern history. So...

I kept thinking about Colleen. How on earth did she have the stamina for this? I would have given up years ago, probably a decade ago. Found some way to talk myself out of caring anymore. I'd asked her, was that the hardest part? Just staying with it? No, because I'm so stubborn. Seriously, being stubborn. I am not going to let their failure...

be mine as well. I'm sticking with this. I don't, I'm not giving up until this ends some way, somehow. I'm not, I'm not giving up. And so Colleen headed down to Guantanamo because of the plea negotiations and before that COVID. The 9/11 case hadn't seen much court action since 2019. Now, September of 2023, the whole enterprise cranked back up again.

For the 9-11 case, that's five teams of roughly 20 people per team, lawyers and interpreters and analysts, then the judge and his staff, plus observers and reporters and their minders and escorts, maybe 150 people heaving themselves to Cuba, including Colleen. I traveled alongside Colleen. She hadn't been to Guantanamo for three and a half years.

She was in a brighter mood than I expected. At the hotel, she joked that the complimentary laundry pods in her room might be listening devices. Maybe that's a secret listening device. That would be really funny. It would be. All thrown in the washer. That's what activates it to, like, send the... I didn't see Colleen all that much during the week. At Guantanamo, the VFMs are closely guarded and protected, mostly in an effort to keep media away from them. So it felt almost illegal to seek her out.

In the courtroom gallery, we'd nod to each other self-consciously as I walked by the VFM section to get to my seat. It was a strange split-screen experience to watch this pretrial hearing, knowing, or at least strongly believing, none of this is leading to an actual verdict.

But also, it's court. So it's interesting. People arguing passionately about secrecy and the Constitution. Witnesses testifying nervously or testily. Within the larger narrative of inaction, there's a lot of action. This week's hearing, they were dealing with the crux of the case. Whether statements the defendants made in 2007, after they got to Guantanamo and were no longer in CIA custody, whether those statements could be used as evidence at trial.

The statements which are critical to the prosecution are known as the clean team statements, since they were taken by teams of government investigators who were not CIA and were not, the government argues, using any form of coercion.

The defense wants the clean team statements thrown out, arguing, among other reasons, that they are tainted, a backdoor way for torture-derived evidence to enter the trial, and that the interviews were not truly voluntary. Not to mention that the men were never sufficiently informed of their rights in these interviews or allowed a lawyer. The fight over whether to suppress these statements has been going on, you'll be shocked to learn, for many years in many different forms.

The week we were there, the excitement was that former FBI agent Frank Pellegrino was going to be testifying, the agent who took a clean statement from Khalid Sheikh Mohammed at Guantanamo. He'd been after KSM for years, prior to September 11th, probably knew more about him than anyone in law enforcement. Pellegrino's testimony seemed great for the prosecution. He came across as credible, said KSM answered his questions voluntarily, that he even cracked a joke or two.

But Pellegrino also seemed restive with anger at the position the CIA had put him and other FBI agents in because of the black sites and the torture. Under questioning, Pellegrino said, quote, I think that the whole thing from the beginning was a flaming bag of crap that we got stuck with, unquote. One defense attorney told me it was the first time a witness had said something so plainly critical of the torture program since the proceedings began a dozen years ago.

A couple other significant things had happened, too. Hugely significant. The week before, the judge had severed Ramzi bin al-Sheba from the 9-11 case, deciding after about a decade of litigation that he was mentally incompetent to aid in his own defense. Ramzi bin al-Sheba is generally considered the second most culpable of the five defendants, sort of like KSM's deputy.

The other major news was that a month earlier, a judge in the other death penalty case before the military commissions against the Saudi man accused of orchestrating the deadly bombing of the USS Cole in 2000, that judge threw out the clean team statements in the Cole case, saying they were tainted by torture. These developments seemed to me to point in the direction of plea deals. The 9-11 case seemed like it was disintegrating.

I'd come down to Guantanamo thinking the plea deals were dead, but everyone was saying, they're not. Really, they're not. We just have to find a different way to get them done. Jay Connell told reporters, the plea deals are sleeping. Not in a coma. Sleeping.

Right now, it feels like temperature, which I think is actually just 98 degrees. Most evenings, a bunch of us reporters hang out on outdoor couches in the hotel's courtyard. Contract workers often sit at the tables nearby, everybody drinking, while the leggy stray cats of Guantanamo dart around the edges of the patio. Colleen came to join us a couple times to talk about the case and also to reminisce. She's known most of these reporters for years.

A few of them were on a flight to Guantanamo, so notoriously terrifying that people still talk about it. I had taken a lot of Ativan, and I went and sat next to you and said, I'm like, tell me everything you know about Khalid Sheikh Mohammed. And I took like three sentences of notes, and then I trailed off, I guess. I don't know. What year was that? It was that really hot.

I'm not a war reporter, but I imagine this is sort of what it's like after hours, minus the danger. People thrown together, trying to make sense of a protracted battle. The so-called war on terror has been enormous, global. And yet sitting here, it can feel like the whole thing is funneled down to this small clutch of people. Reporters, victims, attorneys, soldiers, drinking in the courtyard of the Navy Gateway Inn and Suites.

We start talking about how this case ends. Plea deals, John Ryan from Law Dragon says, 100%. Terry McDermott, who co-wrote The Hunt for KSM, agrees. There's never going to be a trial. Carol Rosenberg of The New York Times thinks maybe an abatement could happen. That at some point the judge might say, OK, government, if you won't produce CIA witnesses, then I'm going to pull the plug. Everybody go home until you're ready to make this a fair trial, which could mean no resolution at all.

One night, Jay Cannell, the defense attorney, turns up. He's wearing shorts and sandals, a brace on his ankle from an injury sustained in spin class. He grabs a club soda. I ask him, all these things that are happening, the decision to sever Ramzi Ben-Elsheba, the USS Cole judge's ruling on the clean team statements, the flaming pile of crap, does it feel like this case might be crumbling in the defense's favor? He says, look, I know you've been down here before. And there's this temptation to feel something.

Like, I've come at a pivotal moment and something important is happening. But this is our 47th hearing and they've all felt like that. Like, I always feel like if it were a boxing match, we'd have won every round on points. But what does that matter? There's no tallying up of points. There's no points. And so, you know, we'll come back in November and then we'll come back again in February and we'll come back and back and back and back.

Jay's been on this case full-time since 2011. Jay believes in the rightness of his mission, that the U.S. government's power cannot go unchecked or trample human rights. He tries not to get caught up in what should happen or could happen. He says he's going to stick with this case as long as it takes. But for a minute there, he really thought this thing might end, that the plea deals would materialize, maybe by the end of 2022.

He started planning his next move, entertainment law. He wants to work in the music industry. He even ordered slick new business cards, the kind that feel like a credit card. Do you ever get the sense that the prosecution feels exactly the same way you guys do on the defense side? That everyone is just like, we're locked in this falling apart train that just keeps going? I didn't know my eyes were locked.

In dark moments, I feel like I'm a puppet in a revenge fantasy where somebody 15 years ago decided that they were going to put on this show about getting the death penalty against these men, knowing that the military doesn't really execute people. The military hasn't executed anyone since 1961. Um,

and that, you know, they needed actors for their playwright. They need to put people in place. They need to put defense attorneys in place, prosecutors in place, judge in place. I don't always feel that way, but sometimes it feels like that. And I could entirely imagine that the prosecution would feel like that, that they are, you know, put up there to represent the forces of revenge and that we're put up there to represent the forces of the rule of law and that there's just kind of a play that happens.

The prosecutors weren't permitted to discuss the case with me on the record, so I can't say whether they share Jay's revenge fantasy feeling. But the prosecution were the ones who initiated the plea negotiations two years ago, as the road to trial was getting only longer and darker. They want this show over, too. Toward the end of the week, I checked in with Colleen one last time. She'd been up since 3 a.m., she said. Her mind had been churning. So she said she wrote it all down to get her thoughts outside her body.

She'd underestimated how sad this trip was for her. I'd seen some of that earlier in the week.

Within 24 hours of our arrival, I'd gone to find her in her hotel room a couple floors below mine. She was falling apart a little, missing her brother, worried she couldn't remember his voice anymore, and also just being down here again, watching this case rattle back to life. I think I've pinned a lot of my hope for accountability and getting to the bottom of this on some kind of legal process, because, you know, it just feels like, Jesus, he was murdered.

somebody, like, be responsible for that. This side of Colleen I wasn't familiar with. I'd seen only confident, rigorous, determined Colleen, but never Colleen in despair. You know, I feel like I've said this 20,000 times, but, like, I'm really feeling this now. I don't know that there's ever, that this is ever going to happen. I don't know that there will ever be a trial. I've never, I've never felt, I've never questioned it as strongly as I am now.

Waiting 20 years for a trial doesn't just deny Colleen answers. Year after year after year, it prolongs her grief, makes dealing with her brother's death harder, if such a thing is possible. By the end of the week, Colleen was more collected. She told me the VFMs had met with the defense the night before. She cried a lot at that meeting, too, she said. Like Jay Connell, she knows better than to get her hopes up. But she realized she'd gotten her hopes up about a plea deal.

The lawyers had talked about how close they'd come, really kind of close to a deal. In the meeting, Colleen had aired her most cynical and, she worries, possibly her most realistic analysis of how this all ends, which is nothing. No trial, no plea deal, no ending. And that that nothingness, that is the plan.

A plan that would serve the interests of some powerful stakeholders, namely the CIA, which would never have to reveal the identities of the people who conducted and enabled torture, or the countries where it all happened. Also, the detainees, who could quietly stay here at Guantanamo in the communal confinement they want, presumed innocent until they die, forgotten. The politicians, who could keep kicking this toxic can farther and farther into the distance, keep pretending it's out of their hands.

Who this plan doesn't serve, of course, is Colleen. A postscript and perhaps an antidote to this dolorous trip. While we were at Guantanamo, another Peaceful Tomorrows member was there too, Layla Murphy. Her week was so different from Colleen's. She was so different from Colleen. In the past few years, as founding members of Peaceful Tomorrows have grown infirm or died, a bunch of young people have joined.

They're children of 9/11 victims. Layla and her sister Jessica, Liz, Aiden, a young woman named Chanel started coming to the Zoom meetings in November. Obviously they're self-selecting, but a remarkable number of these 9/11 kids have studied Arabic in the Middle East or spent time there. Layla's becoming a lawyer. She wants to do criminal defense. Her sister's in med school. She's interested in the effects of torture on human health.

The Murphy sisters have joked, darkly, that this was KSM's plan all along, to radicalize the children of 9-11 victims against their own government. During the day at Guantanamo, Leila met with attorneys, took copious notes during court. She was with two other young people, one a fellow law student, another a recently minted lawyer.

In the evenings, they did what young people do, played cornhole at the tiki bar, played tennis or pickleball. I just love the sign. First dedicated pickleball courts in the Navy. Wait, actually? That's what it says on the sign. With like pickle clip art. It's not that Layla was living it up. It's that she seemed to have no expectations from this trip. She was an observer in the literal sense, taking it in, noting it down.

She admires Colleen and Terry and the other members of this group, but she doesn't need what they need. She's not waiting for answers from the 9-11 accused. She doesn't need a trial. And sure, a plea deal would be good. She'll lobby for that. But whatever happens to these five aging defendants, she doubts it'll have meaning for her. What Layla wants, what would be most meaningful to her, is an admission of guilt from the U.S. government. There's

horrible behavior is the reason we're in this situation and the reason it's dragging on for so long and the reason that they're even pleased like there will never be any like real justice you know because it's just all so fucked up there you know the U.S.'s behavior is the reason this is dragged on

Layla's voice dropped. A guy in military uniform was walking past, close enough to hear us. Did you just get nervous because you saw someone who looked like military? Yes, I did. It's classic Watanabe. I understood her trepidation. It feels somehow heretical, or at least ungrateful, with all these soldiers and sailors around, for Layla to say...

All the government's post-9/11 effort, the endless war and the prison and the court. I know. You did it for me. You did it in my name. But none of it worked. So it's time to stop now. Just say you made a huge mistake and that you're sorry. Leila knows it's a long shot. She was three years old when her father died in 2001. And in all the time since, the government has never held itself accountable, has never worked to reset our common morality as a country.

But this young person who's about to become a lawyer, it'd be so great if she could have this little bit of hope in the forces of the rule of law. Sarah Koenig.

This episode from season four of Serial was produced by Jessica Weisberg and edited by Julie Snyder, Dana Chivas, Jen Guara, and myself, with Rosini Ali, John Ryan, and Carol Rosenberg. Additional reporting from Cora Currier and Emma Grillo. Fact-checking by Kelsey Kudak and Ben Phelan. The original score was composed by Sophia Daly Alessandri. Music, supervision, sound design, and mixing by Phoebe Wang. The series is produced by Serial Productions and the New York Times. You can hear the rest of the season, and I recommend it.

Wherever you get your podcasts, Diane Wu, Mike Kamate, Safia Riddle, and Matt Tierney helped put together this episode of our show. Special thanks to Alameen Sumar, Susan Wessling, Ndechubu, Mac Miller, Nina Lassam, and New York Times Deputy Managing Editor Sam Dolnick. Our website, thisamericanlife.org. This American Life is delivered to public radio stations by PRX, the Public Radio Exchange. Thanks as always to our program's co-founder, Mr. Torrey Malatia. He told me that growing up,

His family had not one, not two, but three wells in the backyard. I was like, really? Well, well, well, yeah. I'm Ira Glass. Back next week with more stories of This American Life. ♪