SACHA PFEIFFER, HOST:
We begin tonight with the most delayed criminal trial in U.S. history. It's the 9/11 case. The September 11, 2001, terror attacks happened almost a quarter century ago, but the men charged with orchestrating them have still not gone to trial. They've been held in Guantanamo Bay, Cuba, for more than two decades, and chances are increasing that they may eventually die there without ever being convicted. This month, a major new development happened in the case. So we've asked Georgetown University law professor Steve Vladeck to talk with us about whether that could make a trial more or less likely. He's been tracking the 9/11 case since its inception. Steve, welcome.
STEVE VLADECK: Thanks, Sacha. Great to be with you.
PFEIFFER: The big development is that the plea deals reached with the 9/11 defendants last summer, including the alleged ringleader Khalid Sheikh Mohammed, have been canceled. Those deals would have let them avoid a death penalty trial by pleading guilty and serving up to life in prison without parole. First, Steve, could you give us your thoughts on those plea deals being called off?
VLADECK: Sure. I mean, I think, Sacha, it's an enormously important development - I think in two different respects. The first is, you know, I think for a long time, a lot of folks who are both skeptical of the prosecutions and supportive of them had really viewed plea deals as the most expedient, the most efficient way to actually try to bring some degree of closure to this, you know, long-running, highly emotionally charged case. Obviously, that now, you know, puts the kibosh on that. But second, you know, the way in which the plea deals were called off with, you know, the convening authority, General Susan Escallier, agreeing to them only to be overruled by former General Lloyd Austin, I think, Sacha, is going to create even more delay going forward because that's going to provoke litigation all its own.
PFEIFFER: And we should note, by the way, briefly, the convening authority is the technical term really for the person that oversees the military court down in Guantanamo.
VLADECK: That's right. And so, you know, the - it's not just that the plea deals were called off, Sacha. It's that they were called off in a way that is itself going to create more litigation, both in the military commissions themselves and before the Federal Appeals Court, the D.C. Circuit, potentially even the Supreme Court.
PFEIFFER: As you mentioned, this case has been caught in a cycle of what are called pretrial hearings for years. The case is widely viewed as extremely dysfunctional. So if the plea deals remain canceled, what do you think happens next? Do we really go back to pretrial hearings and - for a trial that seems doubtful may ever happen?
VLADECK: I think we do. And, you know, I think it's worth saying the quiet part out loud. Part of why this whole process has been so involved, Sacha, is because, as you know, these are capital charges. And, you know, the federal government from the start, across administrations of both parties, has been adamant that it believes it should be able to obtain the death penalty for the defendants in these cases. The - sort of the quick and dirty criminal procedure law is that capital cases have to check a lot more boxes than noncapital cases. And so, you know, the longer that these cases remain capital cases, the longer that we're going to have years of additional pretrial litigation, of evidentiary disputes, of fights over who can testify and what can they testify about. And that's again going back to part of why the plea deals, I think, were seen by many as, you know, such a positive step forward because the government was willing, at least in the deals that General Escallier entered into, to give up the death penalty in exchange for the defendants pleading guilty. That could have short-circuited this entire process.
PFEIFFER: Steve, I want to play you a piece of tape from a 9/11 family member I spoke with last week. Her name is Liz Miller. Her dad died on September 11. She supports the plea deals, and Liz told me this.
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LIZ MILLER: I'm really feeling very frustrated, and I've reached a point where, like, I'm losing my decorum, in a sense, because the main theme is waiting, waiting, waiting, waiting. And I'm really not sure how this is going to end, if it's ever going to end.
PFEIFFER: Steve, how do you think this case ends?
VLADECK: Sacha, I wish I knew. I mean, I think, you know, the plea deals were, gosh, going back 10 or 15 years now, I think what a lot of folks had thought would be the quickest way out of this case. Without plea deals, without plea deals now, without plea deals in the future, the complication that is just, I think, ultimately unavoidable, even if the defendants are ultimately convicted in a trial that seems still several years away, they'll be entitled to an appeal, an appeal that's going to raise a whole battery of messy questions that in almost every case, Sacha, will be novel questions because we haven't had military commission prosecutions in this context.
PFEIFFER: I spoke with another 9/11 family member last week who has a very different view than Liz Miller, who we heard from earlier. This one is Brett Eagleson. He also lost his father on September 11, but he opposes plea deals. And Brett told me this.
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BRETT EAGLESON: We absolutely need a trial, and a plea deal, a plea bargain, would have taken that right away from us. As Americans, as humans, we have the right for justice. That's how we get the truth.
PFEIFFER: He used the word justice. The court in its ruling last week also used the word justice and indicated that only a trial would be true justice. What do you think justice should look like in the 911/ case?
VLADECK: I think that's such a hard question to answer, Sacha. Everyone's going to answer it differently. I guess what I'll just say is, I would think that justice also includes at least a modicum of closure, and everyone's going to have strong opinions and strong views about what to do with the 9/11 defendants. It seems like the worst-case scenario for everybody is the possibility that five years from now, 10 years from now, we still won't have a final outcome. And so, yes, I think, all things being equal, there are opportunities for a trial to establish facts that a plea agreement might not.
But, you know, the reality here is that the government has had 15, 16, 17 years to get these cases to trial. And because of a series of both procedural and strategic and tactical decisions the government's made, it has provoked all this litigation that slowed it down, litigation that's only going to continue to slow it down. So there comes a point where comparing a plea agreement to a trial is really comparing apples to oranges because a trial is not anywhere on the horizon, and it seems to me that some folks might want even more than a trial is some closure on what really has been such a emotional and upsetting and traumatic chapter in American jurisprudence.
PFEIFFER: That's Georgetown law professor Steve Vladeck talking about the 9/11 case at Guantanamo Bay, Cuba. Steve, thank you.
VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.
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