MICHEL MARTIN, HOST:
This week, we're remembering the 25th anniversary of the September 11 terror attacks. The five men accused of orchestrating that mass murder have never gone to trial. They've been held at a U.S. military prison in Guantanamo Bay, Cuba, for more than two decades. NPR's Sacha Pfeiffer has been covering the 9/11 case for years, and she's with us here in-studio to explain why it still isn't resolved. Good morning, Sacha.
SACHA PFEIFFER, BYLINE: Good morning.
MARTIN: OK. So why, a quarter century later, is this still dragging on?
PFEIFFER: The simplest answer is that because the United States tortured the 9/11 defendants after they were caught, it is now very, very hard to successfully prosecute them. This happened so long ago that I'll remind everyone listening that before these five men were brought to Guantanamo, they were held at secret CIA prisons in other countries and subjected to quite brutal treatment - simulated drownings, extensive sleep deprivation. They were kept awake for days - a whole range of physical abuse. In fact, Michel, one of the defendants has been declared mentally incompetent to stand trial, and his lawyers say that's due to him having been tortured.
All that has created a massive amount of classified information plus years of ongoing legal fights about whether that material can be entered as evidence. One Guantanamo defense attorney named Alka Pradhan puts it this way.
ALKA PRADHAN: You can either take people and torture them - and hopefully, you don't do that because it's illegal - or you can have a fair trial for them. You can't do both.
PFEIFFER: And until all those fights about classified evidence are resolved, a trial can't happen. Two of the defendants actually made confessions that were thrown out by judges who said they confessed under duress, so whatever they admitted to isn't reliable. And that includes the confession of the alleged mastermind, Khalid Sheikh Mohammed, which was thrown out just last month.
MARTIN: So if government prosecutors lose the ability to use confessions as evidence, what does that do to the strength of their case?
PFEIFFER: The government says it has other evidence, like telephone intercepts, but losing the confessions has to be a big blow. And we know prosecutors have doubts about trying this case because two years ago, they announced they were going to stop pursuing a trial and had instead agreed to plea deals. The defendants would plead guilty and get up to life in prison rather than face the death penalty. Ian Moss is a former government attorney who's worked on a variety of Guantanamo issues, and he thinks the plea agreements are the only way to resolve this.
IAN MOSS: It's a pipe dream to think that these men will be put to death. I don't believe you can put someone to death, given what their treatment was.
PFEIFFER: But former Defense Secretary Lloyd Austin retracted those plea agreements, and that has created a whole new ongoing legal fight about whether those deals are valid. That's been appealed up to the Supreme Court, and we're waiting to hear whether the court will take up that case.
MARTIN: Meanwhile, the families of 9/11 victims have been waiting and waiting for closure that doesn't come. You have been speaking with some of them. What have they told you?
PFEIFFER: Yes. These families disagree on a lot, including whether plea deals are a good idea, but they are united in their exhaustion. Many of them are disappointed. They're exasperated. They're in disbelief that this is still going on. One person that I check in with regularly is Colleen Kelly. Her brother died in the World Trade Center collapse. And this is what Colleen told me last week.
COLLEEN KELLY: I think I've gotten much more protective over the years, with so many setbacks and then jumps forward and then a setback, and then a jump forward, that each time I hear of a big development in the case, I really kind of almost flatline it.
PFEIFFER: As an example, a trial date for the 9/11 case was recently set for June 2028. But Colleen Kelly says she's lowering her expectations, since delays are commonplace at Guantanamo. And a lot could happen that could derail that start date.
MARTIN: That is NPR's Sacha Pfeiffer. Sacha, thank you.
PFEIFFER: You're welcome.
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