JTF Guantanamo photo by Navy Petty Officer 1st Class Michael Billings
THE COLE BOMBERS AND A KEY 9/11 CONSPIRATOR HAVE NOT BEEN TRIED—POLITICS AND INCOMPETENCE HAVE ADDED UP TO A NATIONAL DISGRACE
INTRODUCTION AND BACKGROUND—Politics Destroys Justice
We are about to see another solemn anniversary of the horrific jihadi-inspired attack on the World Trade Center, and in October we will see twenty-six (26) years since the USS Cole attack in port in Yemen. In 2003 Khalid Shaikh Mohammad was arrested in Pakistan and taken to the United States because of his complicity in the 9/11 attacks, and by the end of 2000, one of the Cole conspirators, Abdul al-Nashiri, was taken into custody. Both have languished in Guantanamo Bay since. Bush wanted them tried in military commissions, Obama got elected and stopped the trials, they started again, they were interrupted by appeals and writs, and during the 2024 election cycle, controversial pre-trial agreements, which would have taken the death sentence off of the table, were pulled back by then Secretary of Defense, the absent, Lloyd Austin, after public outrage. Appeals on the issue ensued, and we are still without any trials for these terrorists. Late last week we now find out that the sitting military judge has ruled that confessions by Khalid Mohammad (KSM) were the result of torture and are not admissible at his trial, which is set for 2028!!! Years of what?? Some background follows.
Congress passed the Military Commissions Act of 2006 after the United States Supreme Court in Hamdan v. Rumsfeld (548 U.S. 557, 2006) upheld a challenge by an enemy combatant to President Bush’s executive order, which created the military tribunals, ruling that such actions must come from Congress. Enter Barack Obama in the run-up to the 2008 election, who embraced the erroneous Clintonian policy that these acts of terror (acts of war to foment jihad) were law enforcement and not military issues, and he vowed to end the commissions, close Guantanamo, and try these people in civilian federal courts. Music to the ears of his base, who harbored sympathy for jihadis determined to wage war on the West. Neither Obama nor Clinton had any notion of the vagaries of the battlefield, as well as having zero military background. Neither appreciated nor credited the difficult evidentiary issues involved nor the classified information that would be compromised given civilian evidentiary rules and the clear fact that these persons were not run-of-the-mill federal criminals—they were waging war on the United States and the West. They declared religious war against Jews and Christians. The Commissions and the manner of trying these animals were on the national stage during the 2008 election cycle, with Obama opposed to military tribunals for those detained and arrested, insisting that federal criminal trials in New York were the better choice.
On 11 February 2008, Khalid and other accused were facing almost 3000 counts of murder, terrorism, material support for terrorism, and plane hijacking for their involvement in the 9/11 attacks. The trial began before a military tribunal on 5 June 2008, but charges were dropped by the Pentagon on 21 January 2010. Thanks, Obama. The charges were to be later refiled in a military commission-controlled tribunal but not until 2011, 8 years after his arrest and with many delays to follow.
After his election, President Obama indeed made good on this promise and announced that the Justice Department would prosecute Khalid Sheik Mohammad, the self-admitted mastermind of the 9/11 attacks, and his co-conspirators in federal civilian courts. This, of course, resulted from the naked politics of simply reversing the Bush-era policies and creating the false assertion that these miscreants had the same trial due process rights as a citizen tried for a crime in civilian federal courts. There was immediate political and practical backlash in New York, which was still reeling from the barbaric 9/11 attack and facing security issues as well as the notion that these people were not entitled to the full panoply of due process protections a citizen would enjoy. Congress rebelled and refused to fund any transfers from Guantanamo to the United States, but more politics would come into play.
At a minimum, Fourteenth Amendment due process protections are not available to Guantanamo Bay detainees, and it is an open question regarding whether there are any such constitutional due process protections outside of those set forth in the rules applicable to military commissions.
Congress pushed back on Obama’s dual purpose of closing Guantanamo and having civilian trials. However, it caved to the Obama Administration’s insistence that additional due process protections be baked in. The result was the Military Commissions Act of 2009, 10 U.S.C. Section 948(a), which authorized Military Commissions to try any “unprivileged enemy belligerent,” which included those who engaged in hostilities against the United States or were a part of Al Qaeda at the time of the offense. Evidentiary rules were tweaked, and statements taken as the result of inhumane treatment could not be utilized. This is legally and morally correct, but the tribunals may consider statements made under circumstances that would certainly lead to exclusion in a civilian court. 10 U.S.C. 948r prohibits the use of statements which result from torture but permits the military court to look at the totality of the circumstances of such a statement and how it was obtained. The same is true for physical evidence that may not have a tight chain of custody. Operators do not normally carry evidence vouchers. We do not Mirandize enemy alien war criminals. You get the picture. The National Defense Authorization Act was passed in January 2011 and barred future trials of similarly classified enemy belligerents in a civilian court. KSM was charged in the military tribunal after Obama’s meddling in 2012. Crickets since, except for KSM and his lawyers and al-Nashiri and his lawyers, using every device available to delay and take advantage of our procedural rules and policy of fairness. They deserve the death penalty. They may never see this justice. Security and classified information concerns led to violations of attorney client privileges and meddling by the feds into trial prep and attorney meetings. Judges were relieved. Counsel resigned. A mess with no oversight or common sense of purpose. The American people suffered from this collective malpractice. They still do.
KSM WAS FORMALLY CHARGED IN 2012 WITH HORRIFIC CRIMES AND WILL NOT SEE A PROCEEDING UNTIL 2028—THERE IS NO EXCUSE
When Secretary of Defense Lloyd Austin pulled back the pretrial agreements negotiated with the Commission convening authority, there was an immediate uproar from defense counsel for KSM and others. Austin had been asleep and allowed his convening authority to deal the cases away with zero oversight. By August 2024, when this circus was in full three-ring mode, the politics were not lost on Kamala Harris, who had just engineered a coup to get rid of Biden, who hadn’t realized where he was and if he was still alive. Her campaign quietly agreed with the PTAs, but the politics were toxic. The government giving away the death sentence and providing room and board to these cretins for the rest of their lives was widely criticized. Austin pulled them back, and more appeals ensued. More delay.
Now after pretrial motions, at least the KSM case may have taken a hit due to a ruling that the statements are not admissible. There will be government appeals now. No word on the Cole bomber’s status. Secretary of War Hegseth owes all of us a full status report and a plan now and a path forward. Command influence is not permitted, but there is a fine line between a command directive to move forward and improper influence. I believe these rulings, at least in KSM’s case, are directed toward forcing the government to again deal the cases with the death penalty off the table. Not a palatable result for any non-DSA member or ACLU life donor. We may be in that position if his many statements cannot be used and his collaborators and coconspirators have been killed or have died. Justice delayed is justice denied. Have we engineered our way into seeing him released? Will he be acquitted? Unthinkable but political meddling and incompetence may have led to that.
CONCLUSION
War criminals do not see decades of delay to their procedural benefit. The unthinkable is happening, as we see two and a half decades since the worst terrorist attack in our history. KSM and al-Nashiri are guilty and need to be put to death. It frankly would have been better to kill them ala Bin Laden rather than take them here for trial. We have folks who can do that. Never again should we allow those who attack us to benefit from our procedural largesse. Apply Rule 5.56 in connection with apprehensions by deadly force. No appeals follow.
Mike Imprevento
August 30, 2026