Justice in the 9/11 Case is Long Overdue
[Editor's note: This piece is part of Lawfare's collection "9/11 at 25: The Legal Architecture of the War on Terror, Twenty-Five Years On," examining how 9/11 remains—or doesn't—embedded in current legal and policy frameworks, a quarter century after the attacks. Read the full collection here.]
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On a clear Tuesday morning, 25 years ago, 2,976 people were murdered on airplanes and in the Pentagon and World Trade Center. The prime al-Qaeda suspects were all rounded up within two years. And yet, they remain no closer to trial today than a quarter century ago.
In 2024, after years of careful negotiations, career military prosecutors reached—and senior Defense Department officials approved—plea agreements with these men, who have remained in Guantanamo since 2006. In a letter to the families of 9/11 victims, prosecutors wrote: “It is our collective, reasoned, and good-faith judgment that this resolution is the best path to finality in this case.”
But days later, in the heat of the 2024 presidential campaign, Defense Secretary Lloyd Austin attempted to unilaterally withdraw those plea agreements. Two different military courts have found that attempt unlawful. The government, however, then petitioned a federal appeals court to set aside those military court decisions and its own prosecutors’ carefully negotiated plea agreements. In July 2025, in a two-to-one decision, the appeals court allowed the government to withdraw from the plea agreements. And in the next few weeks, the Supreme Court will decide whether that decision should stand.
Our roles in the case would ordinarily be diametrically opposed—a former terrorism prosecutor now representing dozens of victim family members (Lewin), on the one hand, and a lawyer appointed to represent some of the defendants in this appeal (Paradis), on the other. But despite our differences, we agree that the Supreme Court should take the case because we firmly believe that these plea agreements are the only way that those with the greatest stake will see any semblance of justice done.
The delays that have plagued the 9/11 trial span five presidential administrations.
In the fear, pain, and anger following the most devastating attack on U.S. soil in our country’s history, the George W. Bush administration chose what the late Vice President Cheney called “the Dark Side.” Broadly, this meant casting suspicion on traditional American values, such as the rule of law and the Geneva Conventions, as quaint and insufficiently ‘tough’ for the threats the country confronted. In practical terms, this meant the widespread use of torture, prolonged extrajudicial detention in ‘Black Sites’ and Guantanamo, and the creation of military tribunals in place of our civilian justice system.
The values that used to characterize “the American Way” were not just good in themselves, but also the things that had worked in practice. The use of torture horrified the allies we needed to collect intelligence and emboldened those who sought to pit the world against the United States. Extrajudicial detention became indefinite detention, a morass of court cases, and legal precedents in which the rules for “enemy combatants” quickly applied to immigrants and citizens. And the use of military tribunals yielded nothing but frustration, confusion, and delay.
Few people know that the five men accused of plotting the 9/11 attacks made their first military court appearance in Guantanamo in 2008. And even fewer know they tried to plead guilty right away. However, unlike the civilian judicial system in which the rules have been fine tuned over centuries, the military commissions law had a bug no one anticipated: The rules were written to prohibit the imposition of the death penalty on someone who pleaded guilty. This bug was discovered just weeks before President Obama’s inauguration.
Throughout his campaign, Obama had advocated closing Guantanamo and prosecuting terrorism suspects in regular courts. Teams of prosecutors, including one of the authors, meticulously reviewed and prepared cases that could go to trial in federal civilian courts without the use of evidence tainted by torture. And in 2009, less than a year into Obama’s first term, then-Attorney General Eric Holder announced that the 9/11 trial would be moved to a civilian federal court in the Southern District of New York. “After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice,” he said, in “a courthouse a few blocks away from the courthouse where the Twin Towers once stood.”
But then politics intervened. Congress passed laws that prevented the transfer of the suspects to civilian court, and the case against the 9/11 defendants sank back into the military tribunal morass.
Delay begat delay. Recognizing as much, in 2017, an official appointed by the Trump administration to govern the military proceedings (a military role known as the convening authority) initiated plea negotiations with the accused in the 9/11 case, trading finality for the increasingly dim prospect of death penalty sentencing. But again, politics intervened. After then-Attorney General Jeff Sessions learned of the negotiations, he pressed then-Secretary of Defense James Mattis to fire the convening authority to scuttle the deal.
Delay compounded delay. And so again, for another seven years, the proceedings limped along. The status quo that developed was as despairing as it was cynical. Politicians, and increasingly the courts, left the big legal questions to remain unresolved and the prosecutions to languish. But then there was hope. In 2023, the prosecutors in the case, some of whom had served for nearly two decades in Guantanamo, reopened plea deal negotiations. The terms of the negotiations ultimately reached not only Austin at the Pentagon but also the White House.
In the summer of 2023, with trial proceedings stayed to facilitate plea negotiations, Austin appointed Brig. Gen. Susan Escallier as the convening authority. Then, in the summer of 2024, Escallier did what the secretary and the rules had empowered her to do. She accepted the deal that the career military prosecutors had negotiated with the accused.
The resolution of the 9/11 case was not the usual plea deal—far from it. Unlike most guilty pleas, the prosecution would still present all its evidence in a public trial to prove the defendants’ guilt. The defendants agreed to drop their objections to the use of evidence that would otherwise be excludable as the product of torture, including alleged confessions that the military tribunal excluded just last week. And, in a provision drawn from the South African Truth and Reconciliation Commission, the alleged plotters of the 9/11 attacks would be required to answer questions from the victims in open court.
In return, the only thing the prosecution relinquished was the ever more theoretical prospect of imposing the death penalty on men who are already in their 60s. This deal, the prosecution assured the victims, was the “best path to finality and justice in these cases.”
But then politics intervened yet again.
Several days after the announcement, in the heat of the 2024 campaign, Austin issued an order withdrawing from the deal. In justifying the decision, he said that the American people were entitled to a public trial, even though the plea deal guaranteed that and more. The military judge, the eighth to preside over the case, ruled that under the rules the secretary himself had promulgated, he had withdrawn from the agreement too late and ordered the pleas to go ahead.
Under orders from the secretary, the prosecution appealed to the military appellate court, which agreed with the trial judge. And then, in the waning days of the Biden administration, they petitioned the U.S. Court of Appeals for the District of Columbia Circuit, which permitted the secretary to scuttle the pleas in a sharply divided ruling.
The D.C. Circuit’s ruling is now before the Supreme Court, which has not taken a Guantanamo case since 2008. The Supreme Court’s long abstention from these cases is one of the many drivers of the uncertainty that has made the trial’s pace interminable.
The Supreme Court has recognized the importance of finality for crime victims, writing that it is “only with real finality [that] the victims of crime [can] move forward knowing moral judgment will be carried out.” Indeed, victims’ “right to proceedings free from unreasonable delay” is enshrined in the federal Crime Victims’ Rights Act, signed into law by President George W. Bush in 2004.
Without these plea deals, no trial is anywhere on the horizon. It has been a quarter-century since the 9/11 attacks. And even if the military commissions can ultimately limp to the starting line of a trial, immense challenges remain. There is a very real chance that the years of motions and appeals that lie ahead will surpass the years of life these rapidly aging men have left to live. That presents a significant risk that these men will die without a final judgment of conviction—leaving them presumed innocent, at least in the eyes of the law, and denying families some sense of finality and closure.
Today, more New York firefighters have succumbed to illnesses associated with rescuing people from the World Trade Center site than were killed when the buildings collapsed. None lived to see accountability. Seventy-two police officers were murdered on 9/11. Five hundred ninety-five have died from related illnesses since then. Uncountable thousands of family members, friends, and other loved ones of these victims have also died while awaiting the outcome of the government’s decades-long failed experiment with military commissions.
If there were ever a case in which the Supreme Court should have the last word, it is to bring finality to the 9/11 case. Justice delayed for a quarter century means justice denied to every American.