A particularly sensitive political question for the Biden government is whether to revise the system of military commission systems to bring the accused detainees to justice. The system has moved at an Ice Age pace that has made it virtually inoperable.
Eight years after their indictment, the death penalty trial of Mr Mohammed and four other men accused of conspiring to conspire in the 9/11 terrorist attacks that killed nearly 3,000 people remains in pre-trial hearings.
Year after year, the prospects for what could be a very lengthy process – appointments that were inevitable years ago – dwindle. Due to recent delays, partly due to travel restrictions during the coronavirus pandemic, the process cannot begin before the 20th anniversary of the attacks.
In practice, traditional civil courts have proven far more effective at bringing terrorists to justice and obtaining convictions that stand up to appeal. However, each year Congress prohibits the transfer of detainees from Guantánamo to the mainland for any reason – neither for trial, for medical care, nor to serve a sentence or even an execution.
Another way to resolve the case without a contested process could be plea agreements. However, this would mean abandoning the 9/11 execution of the accused conspirators. Jim Mattis, then Secretary of Defense, fired the top attorneys who oversaw military commissions in 2018 while investigating the possibility of exchanging guilty lawsuits for life in prison.
In those talks, defense attorneys had asked for assurances, according to people they knew, that the defendants could serve their life sentences in Guantánamo rather than in the tougher, more isolating “Supermax” prison in Florence, Colorado, where men were tried in federal court of terrorism crimes usually serve the time.
If such an agreement is ever reached, Guantánamo Prison would most likely have to remain open for decades – and the Pentagon would again be confronted with the question of building a facility to provide geriatric and end-of-life medical care.
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