Opinion ~ Will the KSM et al GTMO Plea Deal Release the Real 9/11 Orchestrator Name?

Separately, President Trump signed legislation Monday that pays for medical claims from victims of the Sept. 11, 2001, terrorist attacks, including first responders, for the rest of their lives.

In the lawsuit against Saudi Arabia, plaintiffs’ lawyers had requested depositions from three of the five Guantanamo detainees accused in the Sept. 11 conspiracy. In the Friday filing, a status letter to U.S. Magistrate Judge Sarah Netburn, the lawyers wrote that earlier Friday, Mohammed’s counsel told them their client wouldn’t consent to a deposition “at the present time.”

Mohammed’s lawyer said, however, that “the primary driver” of the decision was the “capital nature of the prosecution” and that “[i]n the absence of a potential death sentence much broader cooperation would be possible,” according to the filing.

A lawyer for the Saudi government, Michael Kellogg, declined to comment. Mohammed’s lawyers couldn’t be reached for comment, but an attorney for Mohammed’s nephew and co-defendant, Ali Abdul Aziz Ali (who also is known as Ammar al-Baluch), said there had been changes in the defendants’ positions.

“I think [Mohammed] feels ready and willing” to assist the Sept. 11 victims’ lawsuit, “but I think he feels he needs to get through” the death-penalty question first, said the lawyer, Alka Pradhan.

Mohammed, who also is suspected in the 2002 murder of Wall Street Journal correspondent Daniel Pearl, took a more defiant stance earlier in his stay at Guantanamo.

At a June 2008 hearing there, Mohammed interrupted when a military judge described the proceeding as “a death-penalty case.” It was a “martyr case,” the defendant said. “This is what I wish. I’ve been looking to be martyred for a long time,” he said.

“A lot has happened in the past 10 years,” said a person familiar with the Guantanamo proceedings. “The 9/11 defendants are not as interested as they once were in martyring themselves.”

In 2017, the Defense Department official overseeing the proceedings, Harvey Rishikof, began exploring a potential plea bargain with the Sept. 11 defendants that would exchange guilty pleas for life sentences, according to court documents and people familiar with the case.

Mr. Rishikof is said to have been concerned that the prosecution had been undermined by the torture inflicted upon Mohammed and other defendants at secret Central Intelligence Agency facilities overseas. That issue has mired the cases against them in years of hearings and raised the possibility that a military or federal court could punish government misconduct by barring the death penalty.

After word spread of plea discussions, Mr. Rishikof was fired by then Defense Secretary Jim Mattis for what Mr. Mattis said were unrelated reasons.

One of the main goals of those now-scotched plea negotiations was obtaining cooperation from the defendants, the person familiar with the Guantanamo proceedings said.

“One of the main things that the 9/11 defendants have to offer is closure, particularly closure for the victims,” this person said. “With capital charges gone, there is an opportunity to tell the story of 9/11 once and for all.”

James Kreindler, a lawyer for the Sept. 11 victims suing Saudi Arabia, said his team contacted Mohammed and his co-defendants as part of wide-ranging discovery in the case, which is in pretrial stages that could continue for years.

Generally foreign governments can’t be sued in another nation’s courts. In 2016, however, the Republican-controlled Congress overrode President Obama’s veto to pass legislation designed to let those claims proceed, over the strong objections of Saudi Arabia. The Justice Against Sponsors of Terrorism Act can expose foreign government to liability for complicity in attacks that occur on U.S. soil.

Attorneys who had been pursuing Sept. 11-related litigation since 2002 against entities they allege helped facilitate the attacks quickly brought actions against Riyadh.

“Even though we’ve been in litigation for 17 years with banks and charities, only when JASTA was passed could we start the case against Saudi Arabia,” Mr. Kreindler said.

On Capitol Hill last week, FBI Director Chris Wray was quizzed about his agency’s cooperation with the victims’ lawsuit.

“There is mounting evidence that [Saudi Arabia] aided and abetted the 9/11 attackers,” Sen. Richard Blumenthal (D., Conn.) told Mr. Wray at a Senate oversight hearing. He urged the director to turn over materials that could substantiate that claim.

“We’re trying to leave no stone unturned,” Mr. Kreindler said Monday. “But who knows whether [Mohammed and the other detainees] ever testify or be honest or be cooperative?” He added that his clients take no position on the death penalty for Guantanamo defendants.

A Pentagon spokeswoman declined to comment, citing ongoing litigation.

The Sept. 11 victims’ lawyers requested depositions from two of Mr. Mohammed’s co-defendants as well. The Friday filing reported that counsel for al-Baluchi, said their client “‘respectfully declines to be deposed,’ noting that ‘memory and cognitive difficulties, among other issues, present an obstacle to his participation in a deposition.’”

Mr. al-Baluchi’s lawyer, Ms. Pradhan, said “his condition is a direct result of his torture. He has been diagnosed with a traumatic brain injury from his walling [being slammed into a wall] in 2003, he has been diagnosed with PTSD, with anxiety, he has bouts of vertigo, he continues to have extreme sleep disturbances as a result of his sleep deprivation.”

The CIA treatment of Mr. al-Baluchi was the basis for torture scenes in the 2012 movie “Zero Dark Thirty,” according to CIA materials released under the Freedom of Information Act. Over prosecution objections, defense lawyers screened the film at a Guantanamo military commission hearing in 2016.

A lawyer for a third defendant, Mustafa al-Hawsawi, said he was awaiting his client’s instructions on the matter, the filing said.

The legislation to fund victims’ medical claims, signed Monday at a ceremony at the White House Rose Garden, appropriates money for all current and future approved claims made through the September 11th Victim Compensation Fund until 2090, at an estimated cost of $10.2 billion over the next 10 years.

“You have gone far beyond your duty to us, and today we strive to fulfill our sacred duty to you,” Mr. Trump told first responders, families of victims and survivors of the attacks who attended the White House event.

The legislation passed the Senate last week and the House earlier this month, both with overwhelming bipartisan support.

The fund was established to compensate the victims of the 2001 terrorist attacks as well as relatives of those who were killed and first responders who suffered health consequences from exposure to debris at the sites.