In the months following the attacks of 9/11, the government laid the blame for orchestrating them on Osama bin Ladin. Then, after it murdered bin Ladin, the government decided that the true mastermind was Khalid Sheikh Mohammed.

By the time of bin Ladin’s death, Mohammed had already been tortured by CIA agents for three years at various black sites and charged with conspiracy to commit mass murder, to be tried before an American military tribunal at Guantanamo Bay, Cuba.

Mohammed and four other alleged conspirators have been awaiting trial since their arrivals at Gitmo in 2006. Since then, numerous government military and civilian prosecutors, as well as numerous military judges, have rotated into and out of the case. Two weeks ago, the government and the defendants agreed to a guilty plea in return for life in prison at Gitmo. Then, last week, the Department of Defense abruptly changed its mind and rescinded its approval of the guilty pleas.

Here is the backstory.

The concept of military tribunals for the perpetrators of the 9/11 attacks was born in the administration of President George W. Bush, who argued that the attacks, though conducted by civilians on civilians, were of military magnitude and thus warranted a military response. Throughout the entire 22-year existence of the U.S. military prison at Gitmo, no one government tried only one person for crimes related to 9/11. That was Zacarias Moussaoui, who pleaded guilty in federal court in Virginia to conspiracy for being the 20th hijacker and then was tried in a penalty phase trial where the jury chose life in prison.

The first legal issue was conspiracy. Since Mohammed did not carry out the attacks, he could only be charged with planning them. But conspiracy is not a war crime, and thus no military tribunal could hear the case. So Congress came up with a historic first — a military tribunal that would try civilian crimes.

The next issue was where to try Mohammed and his colleagues. President Barack Obama wanted to close Gitmo, which costs $540 million annually, and try Mohammed and the others in federal courts. This would have been consistent with federal law and the U.S. Constitution. But Republicans in Congress viewed Mohammed as too dangerous to bring onto U.S. soil, and so Congress enacted legislation that prohibits the removal of Mohammed and the others to the U.S. for any purpose.

The prohibition on removal means that any life terms would need to be spent at Gitmo. It also means that there would be a legal obstacle to the execution of a death sentence, as Gitmo is not equipped to execute anyone.

Most troubling, however, is the government’s problem of how to address the issue of torture.

These events — filing legally baseless charges, prohibiting the removal of civilian defendants to civilian courts, and fear of the likely reaction of military jurors to testimony about torture — caused the prosecution team to rethink the entire idea of putting Mohammed on trial, and thus in March 2022, the government initiated secret plea-bargaining negotiations with defense counsel.

Why would the government agree to such a plea bargain for the persons it claims are the monsters who murdered 3,000 Americans on 9/11 and triggered all the horrors that followed those murders? What does the government fear?

What does it always fear? THE TRUTH.

Since the trial judge — the fourth judge on the case — had already accepted the guilty pleas before the DoD changed its mind, it is unclear if he will enforce them.

If he does not, one day there will be a trial.

Defense and Justice Department lawyers have recognized that they cannot try this case without material damage to the scheme of American empire.