Proponents of the closure speculate that some of the men charged may be serving their sentences in custody in another country. Conviction through plea bargains could also persuade Congress, which prohibits the transfer of detainees to the United States, to lift the restriction in order to detain convicted prisoners in safer and more efficient conditions.
During the Trump administration, convening body Harvey Rishikof explored the idea of plea agreements. Attorney General Jeff Sessions learned of the talks, testified in court, and called Secretary of Defense James N. Mattis demanding that no deal be made. Mr. Mattis then fired Mr. Rishikov, citing unrelated reasons.
The key question is how many defendants other than Mr. Mohammed will serve life sentences without the possibility of parole, and whether some of the accused accomplices who played a smaller role in the attacks will serve shorter sentences. Lawyers for the two defendants — Saudi prisoner Mustafa al-Hawsawi and Pakistani citizen Ammar al-Baluchi, who is Mr. Mohammed’s nephew — said they knew nothing about the 9/11 plot when they helped some of the hijackers with money transfers and organized travel from the United Arab Emirates.
CIA psychologists tortured Mr. Mohammed with water 183 times; Defense lawyers hold the overarching theory that, because of their actions, the US government has lost the moral and legal right to execute the defendants. The agents also held five defendants naked, beaten, hung by the arms with chains, and subjected them to rectal abuse and sleep deprivation for three and four years while they were held in the so-called “black prisons” of the CIA before being transferred to Guantanamo Bay. in 2006.
As part of any plea agreement, the defendants will have to work with prosecutors through their lawyers on separate long stories known as a plea of fact—essentially a prosecution-approved confession to their crimes.
After signing, the men could be taken to court for questioning by the trial judge, Colonel Matthew N. McCall of the Air Force, about whether they willingly cooperated with the process. Under the military courts law, military juries, not judges, pass sentence on defendants who plead guilty, generally within the range set in the plea agreement. The Pentagon will need to assemble a jury of American officers to hear statements and other presentations from both sides and then deliver verdicts, even if they are separately topped by secret pre-trial agreements. This part can span months.
People familiar with the talks say the military jury’s recent reaction to a description of CIA torture of another prisoner in a lesser-known case may have contributed to prosecutors’ willingness to negotiate.