USA TODAY International Edition
Justice, and answers, still elusive in case against 9/ 11’ s mastermind
20 years later, lack of trial leaves a troubling legacy
For the past 20 years, I have been chasing a ghost – the man who singlehandedly masterminded the attacks on New York and Washington and launched an American war against terrorism that continues to this day.
His name is Khalid Sheikh Mohammed, and he is the U. S.- educated Pakistani engineer who, as the operational commander of al- Qaida, also orchestrated dozens of other terrorist plots and attacks against Americans and other innocents around the world.
Yet since his capture in 2003, Mohammed has been kept hidden away by a U. S. government that claims to want to bring him to justice but never has. As a result, what he did – and, importantly, why he did it – remains largely unknown to the public except for some broadbrush details.
Now, Mohammed – or KSM as he is commonly known – stands at the epicenter of the most vexing questions and conflicts that have arisen during our modern age of terror that began on that blue- sky September morning.
Chief among them: Can someone whom the U. S. government has admittedly tortured ever be fairly tried, convicted and sentenced to death for crimes he confessed to under duress?
Can the most consequential act of terrorism known to humankind be prosecutable under U. S. laws that have existed since our nation’s inception? Or were the 9/ 11 attacks so monstrously transcendent that their perpetrators can simply be secreted away without ever having the opportunity to contest the accusations against them?
Will the United States, a nation that prides itself on its foundations of democracy and the rule of law, ever bring Mohammed to justice? And what does it say about America that it can’t lay out its case for the world – and the families of the nearly 3,000 victims – to see?
At the end of the Second World War, a U. S.- led coalition charged, prosecuted, convicted and executed the top leadership of Nazi Germany within two years of the end of hostilities. At the outset of the Nuremberg trials, chief U. S. prosecutor Robert Jackson gave a soaring oration about the grave responsibility of devising and conducting the first trial in history for “crimes against the peace of the world”:
“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”
The military tribunals that followed, according to most observers, produced a fair, transparent and just result – and a vast body of publicly available evidence for the annals of history.
I have thought often of Nuremberg and Jackson’s remarks since early 2002, when I first began trying to anticipate what the U. S. government would do with 9/ 11 suspects. Since then, I have pursued Mohammed to nearly every continent on the globe and, ultimately, to the U. S. naval base at Guantanamo Bay, Cuba, where he still awaits trial for the deaths of nearly 3,000 people.
A ghost emerges in Pakistan
Six months after the 9/ 11 attacks, an FBI agent told me a shocking – and highly classified – secret in a pub just blocks from the still- smoldering World Trade Center wreckage. At the time, the entire might of the U. S. military and intelligence machine was focused on finding Osama bin Laden, the al- Qaida leader whose claim of responsibility had made him the public face of the worst terrorist attacks of the modern era.
But the agent, attending a retirement party for one of his international terrorism squad colleagues, confided that the FBI had learned about someone else who might be far more personally responsible than bin Laden for virtually every aspect of the attacks. And agents believed the man was orchestrating many other operations around the globe.
After much pleading on my part, the agent looked this way and that to make sure his colleagues weren’t listening, bent toward me and murmured the man’s name: Khalid Sheikh Mohammed.
Within hours, I was calling sources at the highest levels of the U. S. government, including a senior White House national security official. He insisted – falsely, it turns out – that he’d never heard of a man by that name, or anyone else with a central role in the attacks.
I kept digging. Because I had spent the year before 9/ 11 covering the threat posed by al- Qaida on U. S. soil, I had developed a good understanding of how the terrorist network operated on the global stage. I also knew firsthand how the U. S. government had been trying – with some success – to unravel it using the same criminal investigative strategies that the FBI and Justice Department had developed over many decades.
That previous summer, for instance, I had watched in a Manhattan courtroom as prosecutors persuaded a jury to convict some of the al- Qaida foot soldiers who blew up two U. S. embassies in Africa in 1998. The blasts killed 224 people, including 12 Americans.
And I had interviewed dozens of FBI agents, Justice Department prosecutors and White House officials involved in the Millennium Bomber case. That resulted in convictions for an Algerianborn Canadian named Ahmed Ressam and two cronies who had plotted to blow up Los Angeles International Airport.
Prosecutors and agents laid out a meticulously documented case against the accused. Defense lawyers fought tooth and nail to make sure the process was fair and transparent. I remember thinking this was the American system of justice at its best.
The turning point
After the 9/ 11 attacks, though, the Bush administration threw that system out the window by taking the overseas counterterrorism portfolio away from FBI agents and federal prosecutors and giving it to the CIA and the Pentagon.
The FBI’s involvement in 9/ 11 began as a search and rescue mission at crash sites in New York, Pennsylvania and at the Pentagon. The tedious process of evidence collection became one small facet of a large- scale global criminal investigation. The FBI dubbed it PENTTBOM, combining the Pentagon with two T’s in honor of the trade center’s twin towers.
The FBI’s new director, Robert Mueller, send agents to Pakistan, Saudi Arabia, the United Arab Emirates and other al- Qaida operational hot spots.
I soon followed. By early June, I had enough information to publish a story about KSM and the secret U. S. effort to apprehend him.
The hunt for Mohammed was by then a guns- drawn law enforcement pursuit of a criminal suspect through the streets of Pakistan’s major cities. The FBI helped catch one KSM associate after another. But the CIA put them all on jets headed for its new archipelago of overseas “black site” prisons.
When Mohammed himself was finally caught in the Pakistani military garrison city of Rawalpindi in March 2003, the CIA took custody of him, too. The men were brutally tortured by CIA contractors in an effort to obtain information about future attacks.
Three years later, President George W. Bush announced that they were being transferred to Guantanamo Bay for trial before military commissions.
A slew of confessions
By then, the tribunals were already a complicated and controversial mess.
Defense lawyers said the CIA torture meant the five 9/ 11 defendants could never receive a fair trial. It didn’t matter that KSM had gleefully boasted to a reporter – months before his capture – that he had orchestrated 9/ 11. And it was inconsequential, they said, that he claimed during a 2007 Guantanamo hearing that he was responsible for 9/ 11 “from A to Z,” as well as at least 30 other terrorist attacks as “military operational commander” for al- Qaida.
Investigators later came to believe he made so many claims because it took the focus off others who remained at large and plotting attacks. FBI agents were sent on dozens of false alarms and wild goose chases, officials told me.
But many of Mohammed’s claims were true and backed up by evidence seized in raids in Pakistan and elsewhere, including a computer found when he was captured.
There was one confession of Mohammed’s that day that hit home on a deeply personal level.
“I decapitated with my blessed right hand the head of the American Jew, Daniel Pearl, in the city of Karachi, Pakistan,” Mohammed said during the marathon hearing. “For those who would like to confirm, there are pictures of me on the internet holding his head.”
I had met Pearl, the South Asia bureau chief for the Wall Street Journal, and was in Pakistan talking to some of the same jihadist sources that he was when he was abducted from a Karachi restaurant. Danny was ultimately handed over to KSM.
I had declined a similar invitation to meet with some of those same sources around the same time to write a long profile of KSM. I have thought often about how easily it could have been me whom Mohammed boasted about killing.
The FBI man and his mission
Behind the scenes, the FBI had been quietly working to salvage the cases against the 9/ 11 defendants by sending “clean teams” to Guantanamo to re- interview the five men and extract new – and unforced – confessions from them.
The heart of the case against KSM would ultimately consist of admissions he made in 2007 to Frank Pellegrino, a former accountant and lawyer turned FBI agent who had been chasing him since the 1993 investigation into the first World Trade Center bombing.
Pellegrino had even obtained a federal indictment against KSM in 1996, in part by gaining possession of a water glass with a fingerprint in Qatar and ferrying it back to New York in an evidence bag so a grand jury could examine it.
In early 2007, 13 years after undertaking his pursuit of the elusive terrorist mastermind, Pellegrino finally got his chance to sit face- to- face across a table from KSM in a cell in Guantanamo.
Pellegrino used standard FBI interrogation procedures, slowly establishing a rapport with his longtime nemesis. He opened by saying he had been following Mohammed in Pakistan and Manila before trying to arrest him in Qatar.
“Ah, so you’re the one,” KSM responded, adding that he had known when the FBI agent had arrived in Qatar and even the hotel where he was staying.
Choking on legal challenges
The FBI continued to quietly reconstruct the cases against KSM and his four alleged associates, spurred in part by concerns that years of CIA interrogation had yielded evidence that was either inadmissible or too controversial to present at their upcoming war crimes tribunals.
In October 2007, I disclosed that top secret effort in a story detailing many problems at Guantanamo, one of which was confronting the bedrock American legal principle of allowing defendants to face their accusers in court. Not surprisingly, the CIA wasn’t going to permit its case officers to reveal their identities or discuss their interrogation techniques.
Federal law enforcement officials, however, told me they believed they had gathered enough admissible evidence to try the high- value detainees.
“We’ve redone everything, and everything is fine,” one official said. “So what’s the harm?”
But everything was not fine.
It wasn’t just that the CIA interrogations of the men could be ruled inadmissible. Another problem was that the CIA operatives had interrogated KSM and the other suspects for the sole purpose of gathering intelligence to stop future attacks, as opposed to building evidence- based cases that could stand up in a court of law – even a military one.
Another key question is whether computer data and other evidence obtained during joint U. S.- Pakistani raids was preserved under traditional FBI “chain of custody” procedures that account for the integrity of an evidence sample by tracking its handling and storage from the point of collection to final disposition.
“We had it showing up in garbage bags, nobody knows where it came from, who handled it, what happened to it,” said James Connell, one of the longestserving defense lawyers for the 9/ 11 defendants.
It took another four years for the 9/ 11 defendants to be arraigned on charges of murdering 2,972 people in the 2001 attacks.
By that time in March 2012, I’d just published a book on the FBI’s hunt for KSM and sat in the courtroom for the entire proceedings.
During one break, KSM stood, looked back and made sustained eye contact with me. His face betrayed no emotion of any kind, but his stare was penetrating. Finally, I smiled and raised my arms to my sides with cupped hands facing up. “Why did you do it?” I asked, accentuating the words so he could lip- read them. He gave no response.
Later, I was told the mastermind of the 9/ 11 attacks knew who I was and had already read the book.
Despite facing the death penalty, Mohammed and an alleged accomplice said the military commission process was so dysfunctional that they could not even file legal motions in their defense or have pretrial documents translated into their native languages.
In separate hearings, Mohammed and Walid bin Attash and their legal advisers ticked off one example after another of a pretrial system that they said was barely operating. “We are not in normal situation. We are in hell,” Mohammed told the presiding judge, Marine Col. Ralph H. Kohlmann, in his broken English.
No end in sight
That was nine years ago, and things have gone downhill since. At least four judges have come and gone. Key prosecutors and defense lawyers have retired or moved on, too.
Each one of those transitions has prompted even more delays and legal clashes.
Last week, on the 15th anniversary of their transfer to Guantanamo and the 20- year mark of the 9/ 11 attacks, KSM and his co- defendants were back in court yet again for the kind of pretrial motions often heard in the initial days of a major prosecution.
Defense lawyers objected to numerous issues they say would deprive their clients of a fair trial – and the American public of the transparent, just and legitimate verdict they deserve.
Carie Lemack, whose mother died on the first plane to hit the World Trade Center, has also followed KSM’s legal odyssey from the outset.
“Family members of most murder victims do not have to wait 20 years or more after the crime to have a trial of those accused of the crime,” Lemack, who has advocated tirelessly on behalf of the 9/ 11 families, told me .
Pellegrino fought off mandatory retirement for years, he told me, because he wanted to have the full weight of his FBI authority behind him when he testified against Mohammed at trial. Ultimately, he couldn’t beat the clock, and he turned in his badge and gun last December.
“It breaks your heart,” Pellegrino says. “There are family members who lost loved ones, and now they’re dying off and they’ve never seen this come to an end.”
Connell said that if the detainees had been taken to a court in the United States, the “case would have been over 18 or 19 years ago.”
“The core answer to why the ( Guantanamo) prosecution takes so long is that the United States departed from its ordinary criminal justice model,” Connell said. “We abandoned the justice system as a way to deal with people suspected of serious crimes. And then that had a lot of consequences afterwards.”
President Barack Obama tried to move the trial to the Southern District of New York in 2009 and was shot down by Congress, citing security and financial considerations. President Joe Biden also has supported closing Guantanamo. But when press secretary Jen Psaki was asked in July, she said “I don’t have a timeline for you.”
More than a dozen people involved in the process told me it could take another decade for KSM to face justice. And if defense lawyers have their way, one told me, there won’t be a trial at all.
“The military commissions were doomed to failure from the very start. It was nothing but arrogance to have the government believe that they could create a whole new legal system from whole cloth, with new rules and regulations and procedures to try the most notorious defendants in modern history,” said Anthony Romero, executive director of the American Civil Liberties Union.
“And it’s the arrogance of the Bush administration that was inherited and continued by the Obama administration, that was put on autopilot by the Trump administration. And now we’ll see if the Biden administration has the courage of our convictions to shut down this failure for what it is.”
Without a public prosecution and the display of evidence that requires, the American public is left guessing about key details of America’s worst- ever attacks – and about the man who so gleefully boasts about orchestrating them.
“If there was a trial, people could go back, look at the record and know what he did and how he did it. But when it gets pushed aside and kept away, it just gets forgotten. And that’s not right,” Pellegrino said.
Mark Fallon, former head of the Guantanamo investigative task force, went further, saying that the post- 9/ 11 system “violated the inalienable human rights America was founded upon” and that the Bush administration’s treatment of detainees “amounted to war crimes.”
It will also leave a lasting and potentially deadly legacy, he said, especially since the post- 9/ 11 interrogation program expanded to Guantanamo Bay, Iraq’s Abu Ghraib prison and other U. S. military detention facilities. By adopting the same kind of brutal tactics that foreign dictators had used, he said, the U. S. government handed al- Qaida, the Islamic State and other terrorists a powerful recruiting tool that has created an entire generation of anti- American militants around the world.
“If you want to radicalize somebody, if you want them to really hate you, you torture them,” Fallon said. “How many tens of thousands of Islamic extremists have we created through the Gulag archipelago of our dark prisons?”