Each year, as we approach the anniversary of Sept. 11, it is impossible to not think about the tales of horror and heroism that occurred. While current college students are too young to have any surviving memories of that day, millions of Americans distinctly recall the immediate aftermath and the perpetrators responsible.
Khalid Sheikh Mohammed (KSM), the apparent mastermind behind the murder of more than 3000 Americans on 9/11, recently accepted a plea deal with the U.S. Government, removing the possibility of receiving the death penalty — barely receiving above-the-fold media attention.
Who can say what went on behind the scenes, but clearly there was enough public outcry for the powers that be to pull the plea.
I traveled to Guantanamo Bay almost exactly eight years ago. I served as an NGO observer to the trials. We got to meet with the prosecution and the defense teams. And, of course, we got to enter the trailers where the hearings were held. We, too, sat in boxes with windows and gazed out at the accused perpetrators of the 9/11 terrorist attacks. I sat no more than 10 feet from KSM.
I distinctly recall that the defendants had long, orange beards (apparently, the Prophet had red hair) and were dressed in heavy camouflage jackets (which still remains the case). The camouflage jackets, which were of course provided to them, serve to demonstrate their war with the United States. This sartorial choice was heavily litigated over a decade ago, but ultimately granted.
In the intervening eight years, I became a prosecutor. I’ve worked in state court and federal court and spent a brief stint in the Governor’s Office. While serving Governor Youngkin, I got to travel to over a dozen prisons in Virginia — including Red Onion, of supermax prison fame. I toured solitary confinement (“secured housing”) facilities, saw the D.C. Sniper inside of his cell, met with groups receiving specialized treatment and participated in more local jail tours than I can count.
To be clear, prison is no place to be. The starkness of Red Onion is well documented. It is cold, sterile, and foreboding. The Virginia prisons are state of the art and surpass every existing standard.
Yet not once have I seen any American prisoner treated half as well as Khalid Sheikh Mohammed.
The first prison I ever saw was Guantanamo Bay. So I was only a little surprised when I saw Mohammed dressed in his guerilla warfare gear or when I learned about his regular Skype calls with his family and friends. We also had the opportunity to taste hummus that KSM and others had made in their “detention” facility.
Guantanamo Bay was sought out for being the “legal equivalent of outer space,” but the American military justice system still basically applied. As someone who has represented the United States in court, I now fully comprehend the difference a passionate prosecutor can make.
General Mark Martins, who previously left his retirement to become lead prosecutor on all of the Guantanamo cases, stepped down rather suddenly in 2021. During his tenure, any plea deal was not an option. But without Martins at the helm, many recognized that a plea deal could be on the table.
Martins, educated at West Point, Harvard Law and Oxford, was driving the ship toward success, and a long line of progressive defense attorneys rightly recognized that they simply had to wait him out. Without Martins, and with a Biden presidency (who has purportedly not been involved in the most recent iteration of plea negotiations), an even sweeter deal was possible.
And surely an easy sell — why not ask Mohammed to remain in Cuba, with easy access to his family and friends, eating the food he wants to eat, wearing the clothes he wants to wear? It can barely be considered punishment.
This is simply a macrocosm of the microcosm of local criminal adjudication. Defense attorneys use court delays in hopes that time will lessen the victims’ — and the prosecutor’s — fervor about the case and place more space between the news media and the general public’s collective memory about the incident.
Now, over 20 years later, we have an entire generation who does not remember the terrorist attacks and merely learns about KSM and others from a paragraph and a photo in a history e-book.
Victims’ families were given the opportunity to travel to Guantanamo to see the hearings themselves, and many did, but most came without the knowledge of the American prison system.
In spending 20 years without their loved ones, contemplating their violent death at the hands of these men, after being “notified” about this plea agreement, I wonder if they’ve asked themselves the question I’m asking myself: What could the death penalty possibly be for, if not this?
Maggie Cleary Kilgore is a visiting fellow at Independent Women’s Law Center (iwlc.org) and Deputy Commonwealth Attorney in Culpeper County, Virginia. She is former Special Counsel to Attorney General Jason Miyares and former Deputy Secretary of Public Safety and Homeland Security under the Youngkin administration. She is also a former federal prosecutor.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.
