0:00

Hey, serial listeners, go deeper into

0:02

one detainee story in Letters from

0:04

Guantanamo on Audible. Mansour Adaifi was

0:07

18 when he was kidnapped by

0:09

Afghan militia and sold to the CIA. As

0:11

one of the first prisoners at

0:14

Guantanamo, he endured unimaginable torture. Starting

0:16

as an act of rebellion, he

0:18

wrote to the Pope, President Bush,

0:20

MLK, and others. For the first

0:22

time, hear these letters that celebrate

0:24

the strength of human spirit and

0:26

that ultimately bring catharsis to Mansour.

0:29

Letters from Guantanamo is free

0:31

with membership at audible.com/Guantanamo.

0:35

A quick warning, there are curse words that are

0:37

unbeeped in today's episode of the show. If

0:39

you prefer a beeped version, you can

0:42

find that at our website, thisamericanlife.org. From

0:46

WBEZ Chicago, it's This American Life, I'm

0:48

Robert Glass. If you heard

0:50

of show last week, you know that we're doing something unusual

0:52

for these two weeks. We're featuring stories

0:54

about Guantanamo made by our colleagues

0:56

at Serial. And the one this

0:58

week is really the one that killed me when I first heard it. It's

1:01

about some of the very last people still at Guantanamo.

1:05

Five men who were accused of plotting the 9-11

1:07

attacks. The story's

1:09

about their trial. And

1:11

as Sarah Koenig points out, of

1:14

everything that's happened at Guantanamo, the

1:16

trial of these five men is the one place that you would think

1:18

we could get to some kind of justice. And

1:21

then, in this story, step

1:23

by step and piece by piece, Sarah

1:26

lays out why that seems so

1:28

unlikely to happen. The

1:30

fact that these men were tortured in CIA

1:32

black sites for years, messes up their

1:34

cases in all kinds of ways, but that is just one of

1:36

the problems in the cases. And

1:39

there's this one section of the story that I

1:41

think is especially eye-opening, and that is the section

1:43

where Sarah explains what's probably the best possible outcome

1:45

we could hope for in these cases. And

1:48

why, when that hits the news

1:50

someday, if it ever happens, it's

1:53

sure to be deeply misunderstood by

1:56

lots of people, maybe by most people. So

2:00

with that, I turn things over

2:02

to serial host Sarah Koenig. Every

2:05

couple of weeks at the bland hour of 5pm

2:07

on a Tuesday, a group of

2:09

people you've never heard of clicks into a Zoom

2:12

meeting. They're all family members of people

2:14

who died on September 11th. Hi.

2:17

Hi, everyone. Hi, everybody. There's

2:20

Colleen, a nurse practitioner in the Bronx, and

2:23

Terry, a retired documentary filmmaker in

2:25

Boston. Mayanne in Savannah, a

2:28

retired ordained minister. Valerie, he

2:30

used to work in nonprofits, and her

2:32

omnipresent feline. I'm trying to get the cat's

2:34

tail out of my face. Uh...

2:37

Barry, a graphic designer in Oregon. Hey, there. Oh,

2:40

Barry got a haircut. And Phyllis, in

2:42

New York, a retired teacher, who recently turned 80.

2:45

You are not 80. I

2:47

know I'm not. I'm not. They've

2:49

known each other a long time, many of them for

2:51

a decade or more, through career

2:53

changes and new grandchildren and health troubles.

2:56

Well, well, well, yeah. What

2:58

would we do without each other? Yeah.

3:01

Yeah. The first meeting I sat

3:03

in on, June of 2022, I assumed they'd

3:05

be like a support group. Instead,

3:08

the topic that day was

3:10

the physical and mental well-being of the

3:12

five men accused of orchestrating the attacks

3:14

that killed their relatives. If

3:17

the men don't get the death penalty, and there's

3:19

a very real possibility they won't, what

3:22

should the men's punishment be? I

3:24

think, you know, we're hearing that the

3:28

9-11 defendants don't want to leave

3:30

Guantanamo. No, because they

3:33

think they're going to Florence, Colorado,

3:35

which is very uncomfortable, or worse

3:38

compared to Guantanamo.

3:41

Florence, Colorado is the site of a federal

3:43

supermax prison. Unless you're a federal

3:45

crime buff. I'm guessing you might not be

3:47

able to name anyone incarcerated in Florence,

3:49

Colorado. These guys can. Um...

3:53

Ms. Sally. Ms. Sally Hanson.

3:55

Zernoff. That's

4:00

Colleen. She

4:03

tells the group she'd be fine with Khalid

4:05

Sheikh Mohammed, the alleged mastermind of 9-11, ending

4:07

up in a place like Florence. She

4:10

doesn't want him put to death or tortured, but solitary

4:12

for the rest of his life would be okay with

4:14

her. Valerie agrees. Others

4:18

think Florence is too harsh. It's

4:20

awful. I think it's like

4:22

being buried alive in a fence. You

4:26

know, you're underground 23

4:29

hours a day with the light

4:32

on in your cell, and

4:34

you get an hour outside if you

4:37

behave. It's a

4:39

really inhuman place. It's

4:41

very, very strict, yeah. Everything

4:45

about this call seemed upside down. That

4:48

this group of people would care about a humane

4:50

future for the 9-11 defendants. That

4:52

the defendants might want to remain at Guantanamo. That

4:55

the last people you'd think should be dealing with any

4:57

of this end up dealing with all of this. And

5:01

they weren't just doing a thought experiment here.

5:03

Their positions matter. Of

5:05

the many family groups that formed after

5:08

9-11, this is the only one closely

5:10

monitoring the trial of the 9-11 accused,

5:13

the only one whose members traveled at every court

5:15

session held for the case. Collectively,

5:17

they've watched hundreds of hours of

5:19

court proceeding, filed multiple amicus briefs.

5:22

They research deeply, take out common

5:25

sense but often unpopular positions,

5:27

and lobby aggressively for those

5:29

positions. This

5:31

group is called September 11th Families for

5:33

Peaceful Tomorrows, after Martin Luther King Jr.

5:36

Quote, Wars are poor chisels for carving out

5:39

peaceful tomorrows. All the

5:41

members are peacenakes. That's what brought the

5:43

original members together in the first place, their

5:45

opposition to the US bombing campaign in

5:47

Afghanistan, a month after the September 11th

5:49

attacks. And especially right

5:52

then, spring of 2022, this

5:54

group had some political juice. The

5:56

9-11 case was at a turning point. It

5:59

had been in pre-chorus. The Ah Hearings For Ten

6:01

Years. I Already. Ten years. Of waiting.

6:03

For someone to be held responsible

6:05

for the deaths of their family

6:07

members and now a solution with

6:10

maybe insight peaceful. Tomorrow's had long

6:12

pushed for this for an ending.

6:17

Lives one of the younger members tells

6:19

the group see little conflicted she's always

6:22

been for closing Guantanamo has been one

6:24

of the group steadfast positions close it.

6:26

But then she visited the base again

6:28

recently, took in the whole clattering machine

6:31

of the case and now she's not

6:33

sure. Maybe it does make more sense

6:35

for the nine Eleven defendants to serve

6:37

out their sentences at Guantanamo to not

6:39

close down the facility. You know, it

6:42

makes me question what closing it would

6:44

mean and what all of this. What's

6:46

next? A snuff transferred to the

6:48

detainees, the attorneys and. What?

6:50

Does what does justice look like for us? What what

6:53

does justice also look like for them? Yeah,

6:55

something that I never even thought that I would

6:57

sit at their think about like. I

7:00

never in my lifestyle and be concerned about

7:02

like five people who are responsible for. For

7:05

doing what they did, I never thought about what our. Lives.

7:09

Or six years old when her father, a

7:11

firefighter was killed at the World Trade Center.

7:14

And now here she was twenty seven,

7:16

working as a city council person in

7:18

her hometown, planning our wedding on the

7:20

side and on the side side, trying

7:22

to think through what are the most

7:24

morally and legally complex criminal cases. In

7:26

American History. Most

7:35

aspects of Guantanamo sincerely be

7:37

described as perverse to it.

7:40

We. Grabbed close to eight hundred men. Flew.

7:42

Them to Cuba. Even though most

7:44

of them were nobody's low level fighters at

7:46

best. Some. Weren't our enemies at

7:48

all? hadn't done anything against us. Many.

7:51

Of them we treated with a level of brutality

7:53

that would have been illegal on us soil. The.

7:56

Vast majority more than ninety five percent.

7:58

We never. Charged with the crime. We've.

8:00

Shipped all these prisoners. Guantanamo without a

8:02

solid plan for letting them back out.

8:05

Many. People sat there for two, three,

8:07

five, Years and some. Twelve

8:10

years. Fourteen years, Sixteen years.

8:12

We. Didn't know what to do with them. Thirty.

8:15

Men are still held at Guantanamo. Of

8:17

those thirty has has been cleared. For

8:19

transfer. just sitting there. But.

8:21

The one thing that at least seem logical

8:23

about one time or was the Nine Eleven

8:25

trial. The. Idea of it was

8:28

clear. We. Held in our custody,

8:30

the men we believed were behind the attacks

8:32

that killed nearly three thousand people in the

8:34

United States and kicked off two decades of

8:37

war. If anyone was our enemy at Guantanamo,

8:39

it was these men. If. Any justice

8:41

was to be had. it was through this

8:43

trial. But. Once

8:45

I looked at it carefully I had

8:47

a gather round every one feeling. Gather.

8:50

Round and get a load of this. The.

8:52

Nine Eleven case when of the

8:55

most important cases in history inspires

8:57

a shocking question. Nut.

8:59

How's it going to end? But. Will.

9:01

It end ever. Colleen.

9:04

Kelly, the nurse Practitioner, was my main guide

9:07

for the Nine Eleven trial. Sort

9:09

explain it to you and mystic with her. Collins.

9:12

Brother Bill Kelly died on September

9:14

eleventh. This thirty years old. They're.

9:17

Worked in finance something he

9:19

trade telling never fully understood,

9:22

But. Used to visit his fancy Bloomberg office.

9:24

He visit Colleen in the Bronx play

9:26

with. His niece and nephews. On

9:29

September eleventh still happen to be. At the

9:31

World Trade Center for Conference so took a

9:33

few hours before the. Family. Figured out

9:35

he was in the building. my parents,

9:37

my mother in particular even calling me

9:39

like begging me to go to New

9:42

York and look for Bill. Around

9:44

midnight, Colleen headed into Manhattan with

9:46

a friend to look for Bill

9:48

and they perform the same impotent

9:51

itinerary. Have hundreds of other family members in

9:53

the shell shocked city. Walking,

9:55

Walking. Emergency Room To

9:57

Emergency Room. Kaline.

9:59

And her. Her parents and her siblings

10:01

populated a sudden demographic, which eventually

10:03

would squeeze into a military acronym,

10:06

VFM, Victim Family Members.

10:09

They'd eventually get their own section of the airplane

10:11

that flies down to Guantanamo, their

10:13

own escorts and drivers on the base, their

10:16

own curtain-off seating area inside the gallery of

10:18

the military court, their own press conferences.

10:21

All that was years away. In

10:23

the moment, right after the attack, Colleen

10:26

tried to find out what happened to her brother, the

10:29

general outlines. She had

10:31

to know exactly what happened. I

10:35

became obsessed with

10:38

understanding his

10:41

last day. I

10:44

want to know what my brother was

10:46

thinking when he was trapped on the 106th floor. I

10:48

want to understand, was

10:51

he panicked? Was he

10:53

okay? Was he hopeful? What was he

10:55

thinking? It became very, very important to

10:57

me. Give me

11:00

everything. Give me everything

11:02

right now. I

11:04

want to know every... I

11:07

don't know if Bill jumped. I believe

11:09

he did. I

11:11

became obsessed with that question in the fall of

11:13

2001. She

11:17

went about answering that question methodically,

11:19

like a detective. Several

11:22

weeks after 9-11, Colleen's family found out that

11:24

Bill had sent Blackberry messages to his boss

11:26

at Bloomberg after the plane hit the North

11:28

Tower. The last message Colleen saw

11:30

was from 9.23 a.m. There

11:33

was a whole hour to go. The

11:35

North Tower didn't collapse until 10.28. Colleen

11:38

fixated on that last hour, on Bill's

11:41

last minutes. Bloomberg

11:43

also gave Colleen's family photos of Bill from

11:45

that morning at Windows on the World. It

11:48

turned out they'd hired a photographer for the event

11:50

who'd left just before the building was hit. Colleen

11:53

spoke with the photographer, studied her pictures.

11:56

In one of them, Bill's talking with a man

11:58

Colleen didn't recognize. receding hairline

12:01

glasses. That

12:03

spring, The New York Times published a big story,

12:06

a TikTok of the final 102 minutes of the towers.

12:09

Colleen examined the grainy zoomed in shot of

12:11

people teeming at the blown out windows. In

12:14

one of them, she thought she recognized Bill. So

12:17

Colleen contacted that photographer, went to his

12:20

studio in Lower Manhattan. He

12:22

gave her an enlarged print to take home.

12:24

She stared at it. Yes,

12:26

it looks like Bill, she thought. He's

12:28

at an open window. She sees the back

12:30

of his head. His arm is

12:32

reaching across the vertical window frame, reaching out

12:35

to another man, receding hairline,

12:38

like the guy from the Bloomberg photo. Maybe

12:40

Bill knew him. They're holding on

12:42

to each other's arms. This

12:45

photo is partly why Colleen thinks Bill jumped.

12:48

Also, they never found any remains of her brother, while

12:51

other bodies were recovered from the 106th floor. Eventually,

12:56

Colleen was able, as she says, to let

12:58

it let go. She

13:00

realized excavating Bill's last minutes was her way

13:02

of trying to take away some of the

13:04

pain and fear her brother must have felt, a

13:07

way to absorb it into herself, which

13:09

is impossible. The

13:12

energy Colleen put into tracking Bill's last

13:14

hour, that ferocity for uncovering

13:16

information, and that fealty to facts,

13:18

no matter how distressing, now

13:21

multiply that a thousandfold. And

13:23

that's what Colleen has dedicated to the 9-11 trial. She's

13:27

been to Guantanamo well over a dozen times.

13:30

If she can't watch the trial in person,

13:32

she'll sometimes go to a remote viewing station

13:34

at Fort Hamilton, an army base near the

13:36

Verrazano Bridge in Brooklyn. When

13:38

hearings aren't in session, which is most of

13:40

the time, she calls up experts and attorneys

13:42

to ask questions and talk strategy. Before

13:45

I knew better, I thought the actual trial of

13:47

the 9-11 accused might not matter all that much

13:50

to Colleen. Five men languishing

13:52

at Guantanamo, imprisoned for 20 years

13:54

already, unlikely to ever be free.

13:57

Why would a trial affect Colleen's life? The

14:00

Life by the Way. She set me

14:02

straight. She. Did care. On

14:04

Yes Yes yes. It's

14:07

usually because he knows his bill

14:09

was killed on a street corner

14:11

of where he lived. Course

14:14

I would be if that trial every

14:16

day when. When it

14:18

came to a trial, you know

14:20

it's sleek. You wanna know all

14:23

the facts, You wanna know how

14:25

this happened, who this person was,

14:27

what what went on, and have

14:29

people be held accountable. So we

14:31

yes was always really really interested

14:33

both and the trial as a

14:35

form of accountability but also. What

14:38

the hell happened that

14:40

day like this? This

14:43

sounds. Ridiculous.

14:45

said. I'm saying this to you right

14:47

now. Twenty. Two years later,

14:50

No. One knows.

14:53

How did. Plead. Shaikh Mohammed

14:55

do what he did. How

14:57

did the hijackers get their

14:59

money? How did they get

15:01

on planes? Who knew what?

15:04

when? How? How are all

15:06

these other guys? The other

15:08

four men? How are they

15:10

involved? So I'm intensely obsessively.

15:14

Wanting to know how this

15:16

all happened. And

15:18

why? Like,

15:21

you know why they didn't. Know. I've

15:24

been told. By.

15:26

People who are not the five accused

15:28

why they did it. No.

15:31

I don't know why they did it. I

15:33

see you need to hear from them.

15:35

It's just it's it's how it's how

15:37

with when I need it's when I

15:39

need. Keep.

15:44

In mind, Tallinn is lifted. Everything she

15:46

can get her hands on about how

15:48

and why Nine Eleven happened. Government.

15:50

Reports statements by the nine Eleven

15:52

accused. Books by prominent journalists. Most

15:55

extraordinary to me. She spent years

15:57

visiting a former member of the

15:59

Militant group. underground in prison.

16:02

She wanted to know what it felt like

16:04

when your belief system carried you past natural

16:06

boundaries to extreme violence, but

16:09

none of it satisfied her. In

16:11

this case, Colleen needs primary sources.

16:14

She needs specific answers that are

16:16

still locked inside these specific defendants.

16:19

A trial would unlock them. That's what trials

16:21

are for. The

16:32

military commissions at Guantanamo were supposed to

16:34

be our Nuremberg trials, when the Allied

16:36

powers prosecuted Nazis and German leaders immediately

16:39

following the Second World War. The

16:42

Nuremberg trials were huge, efficient, and

16:44

by many measures successful. They

16:46

didn't fix the world, but they at least held

16:48

racists and murderers to account, helped

16:50

repair a broken continent, and reset a

16:53

common morality that said war

16:55

crimes, no matter how chaotic or horrific,

16:57

would be adjudicated in a civilized court

16:59

of law for all the world to

17:01

see. It's no wonder, then, that photos of

17:04

the Nuremberg trial hung on the wall at

17:06

the prosecution offices of the military commissions.

17:09

Oh, whoa, what is that? On

17:12

Colleen Kelly's wall hung a handmade primer

17:14

explaining the military commissions, the

17:17

opposite of the Nuremberg trials, in terms

17:19

of efficiency and success. This

17:21

is the weirdness. What

17:25

just explain what I'm looking at? Behind

17:27

her bedroom door was a waterfall of paper,

17:30

giant presentation size sheets describing

17:33

the special court created

17:35

to try a handful of Guantanamo prisoners we

17:37

charged with terrorism or war crimes. The

17:40

9-11 case was meant to be the main event.

17:43

This is really helpful because we all

17:45

forget about the charges against the 9-11

17:48

case. This

17:50

document was for an explainer she did years

17:52

ago, but Colleen was keeping it here because

17:54

so much time had passed since the 9-11

17:56

criminal case Started, she sometimes forgets

17:58

the basics. Also. I

18:01

suspect because the case has emulsified into

18:03

her waking life over so that you

18:05

hardly notice that an enormous hand. Written

18:07

record of judicial disappointment. Occupied

18:09

physical and mental real estate in her

18:11

bedroom, spitting distance from her pillow while

18:14

she slept. That's Not good. You

18:18

can aged by the judge calling listed

18:21

on one of the she's George Cole.

18:23

He lasted the first six years until

18:25

twenty eighteen. Then came Judge Perella, who

18:27

left after nine months. Then. Judge

18:29

Cohen came in pledging continuity so important

18:32

in a case of this magnitude. Less

18:34

than a year later, Cohen retired. Stern,

18:37

Judge Watkins stepped in temporarily until

18:39

Judge Keen came aboard. Judge Keen

18:41

lasted two weeks. He had complex.

18:44

Than judgment call that Mccall had been a

18:46

judge Walesa two. Years which is against the rules

18:48

such at. Watkins have been temporarily again and

18:50

such a cost of a be set to

18:52

kiss her minutes on church. Mccall came back

18:54

once he had two years experience under his

18:57

belt. Just Mccall is the courage judge on

18:59

the Nine Eleven case is announced He might.

19:01

Or might not be retiring at the end of this

19:03

year. I

19:05

know you're not following this. That's the problem.

19:07

No one can followed us. Like

19:10

still jokes and see who are his

19:12

first. I saw some friends that I've

19:14

seen a long time and they know

19:16

that I'm very active in this in

19:18

this work and they asked kind of

19:21

what's going on and I started to

19:23

explain and I see. This

19:25

is a guy. He's a lawyer

19:27

and he's really smart and is

19:30

really engaged on issues of great

19:32

importance around the globe and I

19:34

just see like after a while

19:36

just glazes over. Get.

19:39

Out of his kind of. Dumb.

19:42

Down to get a sense they don't

19:44

believe you like they think you must

19:46

not understand what's happening because it can't

19:49

be that bad. Are literally just too

19:51

complicated. Complicated. too complicated. because

19:53

you keep physically start to say something

19:55

is a sentence you realize you have

19:58

does say and other sentenced to explain

20:00

it because

20:05

there's no way there is no

20:07

elevator pitch for this no

20:12

elevator pitch okay but how about we take

20:15

the stairs you and me all the way to the top and

20:17

you lend me those I don't know seven minutes and

20:19

I'll spin you through this for cocked a case in

20:21

this for cocked a court so you can understand

20:24

the bind the 9-11 cases in right now

20:30

after we captured the five defendants the

20:32

men we believed plotted and carried out

20:34

the 9-11 attacks we held them in

20:37

CIA custody in black sites around the world and

20:39

we tortured them after three

20:41

four years we sent them to Guantanamo

20:43

in September of 2006 a

20:47

couple of false starts later the men

20:49

eventually were arraigned in May of 2012 at

20:52

a military commission in Guantanamo Bay the

20:55

five defendants were Khalid Sheikh Mohammed Walid

20:57

bin-at-ash-Ramsi bin al-shaba Amar

21:00

al-baluchi and Mustafa al-housaoui

21:03

in the courtroom they would each sit in a different

21:05

row one behind the other in the order they appear

21:08

on the charge sheet KSM to house

21:10

aoui so how

21:12

is this court different from all other courts and

21:15

why doesn't it work any

21:17

normal lawyer hearing what I'm about to lay out

21:19

here is probably going to be horrified or else

21:21

think I must be mistaken I am

21:23

NOT mistaken here we go in

21:27

normal criminal court a defendant has a

21:29

constitutional right to confront his accuser so

21:32

if I accuse you of assault say I have

21:34

to come to court take an oath and testify in

21:37

front of a judge or jury in

21:39

the military commissions they'll entertain a jacked

21:41

up form of hearsay evidence which

21:44

means an FBI agent can take the stand

21:46

and say years ago I went

21:48

to a police station in Yemen and a Yemeni cop

21:50

brought me some witnesses he had already interrogated and I

21:52

talked to all of them and I wrote down what

21:54

they told me but

21:56

those original Yemeni witnesses don't have to be

21:58

called in or take an oath,

22:00

or answer any questions, because the agents who spoke

22:03

with them don't even know how to find them anymore.

22:06

The Yemeni's secondhand statements, made through an interpreter,

22:08

mind you, can be allowed as evidence

22:10

in the war court at Guantanamo. And

22:14

these aren't any old criminal cases. These

22:16

are capital cases, death penalty cases. As

22:19

one former military defense attorney said to me,

22:21

allowing that kind of hearsay, quote, "'That

22:24

would happen nowhere else. "'That's

22:26

absolutely insane,'" unquote. Also,

22:30

torture. Statements

22:32

derived from torture, or cruel, inhumane,

22:34

and degrading treatment, cannot be used

22:36

in federal court, period. But

22:38

in the military commissions, it's mushier.

22:41

Something I said while I was being tortured, you

22:44

can't use that in an actual trial. And

22:47

it's still in dispute whether the government

22:49

could use my torture-derived statements in pretrial

22:51

hearings, or use something my

22:53

neighbor said about me while he was being

22:55

tortured. And, and this

22:57

is the central issue now, they might

22:59

be able to use at trial statements I made

23:01

after I was tortured. Also,

23:04

all the classified stuff, it

23:07

is mind-boggling, the profusion and confusion

23:09

over what is classified. In

23:11

the military commissions, the accused isn't allowed

23:13

to see all the evidence against him

23:15

because classified, a ton of it. And

23:18

it's not just documents the defense can't

23:21

see. A large number of potential witnesses,

23:23

people who worked in black sites say,

23:25

their identities are classified. The defense can't

23:27

call them because they can't identify them.

23:31

And if they do happen to know the name of

23:33

a CIA employee, current or former, they

23:35

aren't allowed to contact them directly. So

23:40

those are some of the baked-in problems. Now

23:42

to the weirder stuff. The

23:45

cases from the outset have continuously fended

23:47

off, let's call it interference,

23:50

intrusion, infiltration. It's

23:53

fine, basically. The

23:56

first big incident that made the news was in 2013, just

23:59

as the case is getting worse. The under the killed

24:01

at an incident. When. Monday

24:03

afternoon in court. A. Lawyer for Khalid

24:05

Sheikh Mohammed was talking about evidence from.

24:07

Cia black sites and when he said

24:10

the word secret. The. Cctv feed

24:12

from the courtroom cut off. Meaning.

24:14

Anyone watching from the spectators gallery

24:17

or remotely suddenly heard nothing. White.

24:19

Noise. So the speakers. The.

24:22

Judge and the security officer sitting to his

24:24

rights. They. Do have the ability to cut

24:26

the seed to avoid classified spills. But.

24:28

In this instance, the judge hadn't press the

24:30

button and neither had the security. Officer.

24:33

Someone. Else some external body had cut

24:35

the seed and the judge didn't know

24:37

who and he was pissed. All

24:41

kinds of questions erupted than who was

24:43

listening in. What else could they here?

24:45

Was this the to to see a

24:47

just drown out information A didn't want

24:49

anyone talking about put in charge of

24:51

this thing to was. Really in charge.

24:55

The. Kill That In was only the

24:57

beginning. In attorney client meeting rooms spaces

24:59

that are supposed to be sacrosanct, they'd

25:01

find hidden mites and the shape of

25:04

phony smoke detectors or else hidden in

25:06

the walls. The F B I would

25:08

cry inside a defense team in one

25:10

instance turning a defense staffer into an

25:13

informant and interpreter assigned to the defense

25:15

seem to have had a previous job

25:17

at a Cia black site to lose

25:20

a really working for. All

25:22

this bugging and snooping it was hard

25:24

not to conclude was an effort to

25:27

undermine the cases. To. Keep evidence

25:29

and documentation of what happened to the

25:31

men in Black sites from becoming public.

25:34

This. Is what the Cia. Feared and

25:36

still fears. Secrets. Of

25:38

the torture program becoming public. The.

25:41

Cia didn't offer any comment about this when

25:43

I contacted them. Torture.

25:46

Has infected almost every aspect of

25:49

the military commissions cases. It's

25:51

why so much of the discovery is classified

25:53

are not available at all. it's

25:55

weathermen physical and mental health is a

25:57

constant topic is why fighting over and

26:00

of evidence in the 9-11 case is epic. It's

26:03

why delays and breakdowns in the proceedings

26:05

are legion. Every

26:07

one of these problems, the kill button, the

26:10

hidden mics, the classification arguments, the medical issues,

26:12

and countless frequently ridiculous others that I do

26:14

not have time in our journey here to

26:17

name, all of it has

26:19

involved litigation that causes months

26:21

or half a year or several years

26:23

of delays. And

26:26

that is how a case which could have been,

26:28

I don't know about a slam dunk, but vastly

26:30

easier surely. Remember, KSM has

26:33

admitted to planning 9-11, but

26:35

this case is now entering its 13th year of

26:39

pretrial hearing. Finally,

26:42

last thing I promise, appeal.

26:45

Many, many legal experts who've looked at the 9-11 case

26:47

agree that a

26:50

verdict in this case cannot survive appeal,

26:52

which likely eventually would end up in the

26:54

Supreme Court. In

26:57

a statement to lawmakers, a Marine Brigadier General

26:59

who served as Chief Defense Counsel for the

27:01

commissions wrote that the myriad defects

27:03

mean that, there are

27:05

literally so many significant grounds for potential

27:08

reversible error that it is impossible to

27:10

list them all. And

27:13

appeals, of course, take their own sweet time. The

27:15

appeals could add another decade to this case.

27:18

Easily. So for family members

27:20

of victims of the 9-11 attacks, watching

27:23

the military commissions has been like trailing

27:25

a mirage. You can

27:27

hear their mounting disillusion in the VFM

27:29

press conferences from Guantanamo over the years. But

27:32

first, a lot of them, they thought it could work. Very

27:36

honored to be here and

27:39

see how our justice

27:41

system works and

27:44

the transparency, because

27:46

the world needs to see that. That's

27:49

from a press conference in 2012, when

27:51

the 9-11 defendants were arraigned. Two

27:54

years later, you hear people start losing their

27:56

patience. If we could feel

27:58

we were moving somehow. forward

28:01

towards a resolution. This

28:04

woman talked about how she'd been down in Guantanamo

28:06

once before in 2009 and

28:08

watched a mental competency hearing for one of the

28:11

9-11 defendants, Ramzi bin Al-Shaba.

28:14

Now it was 2014 and she was

28:16

back watching a mental competency hearing

28:18

for one of the 9-11 defendants, Ramzi

28:20

bin Al-Shaba. But here

28:22

we are standing in place since

28:25

2009 to 2014, five

28:28

years standing in place and it's painful. By

28:30

2017 you

28:33

hear desperation. And I don't think this is going to

28:35

result in my lifetime and

28:38

that's really what I have

28:40

to say and it may sound negative but I'm not

28:42

negative with anybody here or any of the people here.

28:44

It's just that I want justice

28:46

done and I can't see life

28:49

at the end of the tunnel yet. After

28:51

2017 prosecutors stopped meeting with

28:54

the media. For

28:56

Peaceful Tomorrow's members, Colleen told me

28:59

2017 was also the year they realized, oh this

29:03

is never gonna work. We've had

29:05

it. Like now we've had it.

29:08

This is, it's endless. There's

29:11

always something. There's always gonna be

29:13

something. That's

29:16

when it's

29:18

like plea deals. The

29:23

prosecution was still insisting they could

29:25

get this trial done, get guilty

29:27

verdicts against the 9-11 defendants. But

29:30

Colleen and Terry and the group members had

29:32

lost faith. They could see

29:34

clearly now. The military commission system was

29:37

a failure. Forget about a trial.

29:39

The only logical solution to ending this thing.

29:42

To getting a conviction that would stick. To

29:44

getting the answers they wanted. Plea

29:47

deals. Anyone could see that plea

29:49

deals were the way to go, right? That's

29:51

after the break. Indeed

29:54

it is. Coming up, other

29:56

9-11 families and

29:59

how they feel about negotiating. a plea deal with

30:01

the alleged 9-11 planners. Sarah

30:03

Kennan comes back from Chicago Public

30:05

Radio when our program continues. This

30:30

is American Life from Ira Glass.

30:32

Today's program, The Forever Trial. We're

30:35

putting the

30:45

second of two stories that we're running from the

30:47

new season of Serial, which is about Guantanamo. Sarah

30:50

Kennan picks up where we left off before the break.

30:53

The idea of a plea agreement was that

30:55

if the government took the death penalty off

30:57

the table, maybe the 9-11 defendants would plead

31:00

guilty and give up their right to appeal.

31:03

The case would be over. The

31:05

plea would include an extensive likely

31:07

month-long sentencing hearing, almost like its

31:09

own trial. And such a

31:11

hearing would include a stipulation of food. This

31:14

was key to Colleen, a stipulation of

31:17

fact, a narrative in which

31:19

each defendant would explain with precision exactly what

31:21

they had done to make 9-11 happen and

31:23

exactly why they had done it. And

31:26

that's how, through a plea deal, Colleen could get

31:28

the answers she needed. But

31:31

a plea deal in the 9-11 case, for

31:33

a lot of people, that's a tough sell.

31:36

Because it's the 9-11 case. It's

31:39

emotional. And a plea deal sounds

31:41

wrong, like the government's giving up or

31:43

just doesn't care anymore. And

31:46

no death penalty for the people responsible

31:48

for 9-11? Why would anyone

31:50

ever make a deal with these guys? That

31:55

is an understandable response. Especially

31:57

if you have no idea how dysfunctional the court

32:00

is. And let's face it, very few people have clocked the

32:02

ins and outs of the 9-11 case, including

32:04

most politicians. While

32:07

President Trump was in office, a plea deal in the 9-11

32:09

case was a non-starter. Come

32:12

2021, though, a few

32:14

remarkable things happened to shake up the

32:16

military commissions. First, the

32:18

long-serving and forceful chief prosecutor, a

32:20

general who'd been committed to a

32:22

death penalty trial, announced he was

32:25

retiring. His replacement, Colleen

32:27

thought, might be more amenable to a plea.

32:31

Then came the sentencing hearing of Majid

32:33

Khan. The military jurors'

32:36

response to hearing Majid Khan talk

32:38

about being tortured, their recommendation for

32:40

clemency, offered a clue as to

32:42

how the jurors might react to the torture

32:44

of the 9-11 defendants, one

32:46

of whom, as a result of being sodomized in

32:49

CIA custody, has to sit on

32:51

a cushioned chair in court and eventually

32:53

underwent rectal repair surgery. In

32:55

other words, even if prosecutors got a conviction

32:58

at trial, they might not get a death

33:00

sentence. Soon

33:04

after Majid Khan's sentencing,

33:08

the Senate Judiciary Committee held a

33:10

hearing titled Closing Guantanamo.

33:13

The only victim family member who

33:15

testified was Colleen. Her

33:18

message was strong and sad. Family

33:20

members who wanted and needed this trial to happen,

33:23

she said, had already waited too long. In May

33:25

of 2012, I

33:27

sat with my dear friend Rita Lassar watching the

33:29

arraignment of the 9-11 accused. Rita's

33:32

brother Abe died when he stayed behind to

33:34

assist a disabled coworker on the 27th floor

33:36

of the North Tower.

33:39

Rita is now deceased. In

33:42

2017, I was on the

33:44

plane to Guantanamo with Lee Hanson, the only

33:47

9-11 family member to be deposed in the

33:49

pretrial hearings. Lee Hanson

33:51

lost his son, his daughter-in-law,

33:53

and his granddaughter on Flight 175. Mr. Hanson

33:55

is now deceased. 2019,

34:00

I was on a boat crossing

34:02

Guantanamo Bay with Alice Houghland, mother

34:05

of flight 93 hero, Mark Bingham.

34:08

Alice Houghland is now deceased. Colleen

34:10

and her cohort had always

34:12

been the hippie 9-11 group,

34:14

anti-war, anti-violence, anti-Guantanamo. In

34:17

the world of victims' family members, their views were

34:19

squarely in the minority. But

34:21

now two decades later, it seemed the national

34:23

mood had shifted. Vengefulness had

34:25

dimmed. And Colleen was invited to

34:28

the table. Five other

34:30

people testified as well. Non-hippies,

34:32

conservatives, a couple of people

34:34

who'd been Guantanamo boosters back in the day,

34:37

who'd helped design detainee policy and the military

34:39

commissions under President Bush. And

34:41

now nobody was arguing. Plea

34:43

deals is the only way. I

34:47

thank you again for your invitation and for your time

34:49

and attention. Thank you,

34:51

General. A

34:56

few months after the Senate hearing, in March of 2022,

34:58

the newspaper announced prosecutors

35:01

and defense attorneys were in talks. They

35:04

were negotiating a plea deal in the 9-11 case. Finally.

35:09

That same spring is when I started listening in

35:11

on the peaceful tomorrow's Zoom meeting. Colleen

35:13

and the rest of the group knew a plea

35:15

agreement and sentencing would take some time. One

35:18

attorney on the case estimated 18 months. Their

35:21

strategy was to stay cool, which

35:23

the lawyers negotiating the deal had also recommended.

35:26

Yes, the plea talks had been in the papers. The news

35:28

was out there. But still, they decided,

35:30

let's not make a lot of noise. No

35:32

big public push. The risk

35:34

of riling up opposition was too great. This

35:37

thing was so fragile politically, even

35:40

minor blowback could snuff it out. So

35:43

they'd lie low. The

35:46

meetings, though, were animated. The

35:48

group worked on a list of questions they wanted

35:50

the defendants to answer in the event of a

35:52

sentencing. Questions some of them have harbored

35:55

since 2001. Who knew

35:57

that there were 20 hijackers and how they

35:59

were getting their tickets. They

36:01

want to know who was the financial mastermind?

36:04

Was it KSM's nephew, Amara Alba Lucci?

36:06

Did he communicate to so-and-so that he

36:08

was making this transaction? Is that maybe

36:10

what you're more after? And what

36:14

were they told about why the transaction was made?

36:17

The finances are a big topic with this group,

36:20

not only because they want to understand the inner

36:22

workings of the plot, but because they want to

36:24

understand the relative guilt of the five defendants. Is

36:27

Amara Alba Lucci less culpable than his

36:30

uncle, Khalid Sheikh Mohammed, but more culpable

36:32

than Mustafa Al-Hausawi? They

36:34

passed their questions along to a defense attorney

36:36

working on the 9-11 case, a

36:38

defense attorney. At first this surprised

36:40

me, but they were talking to defense attorneys as

36:43

much, if not more, than they were talking to

36:45

prosecutors. And

36:47

then they waited. Six

36:50

months passed, eight months, by

36:52

December, nine months since the

36:54

plea negotiation started. Everyone was

36:56

getting antsy. So I just, I,

37:00

boy, this is beyond any kind of advocacy

37:02

I've ever done before. Hearings

37:04

in the 9-11 case were on hold while

37:06

the prosecution and defense tried to work it out.

37:09

They were supposed to agree on so-called policy

37:11

principles by now, which is a dry term, but

37:13

it was the meat of the deal. If

37:16

the men pleaded guilty, what would they get in return?

37:18

The policy principles

37:20

mostly had to do with the conditions

37:22

of the men's imprisonment. They wanted assurances

37:24

that as long as they were in

37:26

prison, they'd have a communal situation like

37:28

they have now, the ability to

37:30

eat together and pray together, no

37:33

solitary confinement. Also,

37:35

they wanted proper sustained treatment for

37:37

their physical and psychological trauma caused

37:39

by the torture and

37:42

the ability to communicate better with their families.

37:45

For the plea to progress, the prosecution

37:47

needed an answer from the Biden administration,

37:49

whether they supported the policy principles. But

37:52

Biden wasn't saying anything at all. The

37:59

one year mark came in Now

38:01

it was march of Twenty Twenty

38:03

three. Still nothing. Salary cap was

38:06

dying. Your similarly you have

38:08

to be so careful cause is all

38:10

birds in our lives As wedding was

38:12

off shoes now running for mayor. So

38:15

suggested maybe they take a breather. get

38:17

some distance from other discouragement. J Canal,

38:19

a defense attorney came to a meeting

38:21

to give an update, which was no

38:24

update on the deal really, but he

38:26

did have something to tell them. And

38:28

so I have now seen or draft. Or

38:32

stipulation of facts. And.

38:39

That's the document Colleen and the others

38:41

are waiting for. The. Main thing they want

38:43

from this play. In the

38:45

two hundred page statement says client a moral

38:48

beliefs she had laid out his background how

38:50

he ended up in the situation at such

38:52

a young age. Then he talks about Nine

38:54

Eleven. Ah, It's really

38:57

a deep examination aus who

38:59

exactly didn't work in the

39:01

plot around Nine Eleven. I

39:03

mean into it's very detailed

39:05

on that point. Finally,

39:08

There's a section about what happened to him. In. Prison

39:10

soaks, you know, just two

39:13

hundred page document, really? Died

39:16

steeped in to. Into

39:18

I since. Basically.

39:20

Any question that anyone would house. Lives.

39:23

Has a holy shit. Look on her face. Later.

39:26

She told me that what she was feeling.

39:28

Holy shit this information is out there and

39:30

why do we not have it? One

39:33

of the five descendants had answer their questions.

39:35

In a document? They couldn't see that yet.

39:39

He was a P. And

39:50

then August of last year. The.

39:52

Public suddenly woke up. There.

39:54

Was a government who have them not peaceful.

39:56

Tomorrow's. The. Prosecution sent a letter

39:58

to Nine Eleven victim. Family members.

40:01

Too. Much wider group than usual, some

40:03

of whom hadn't been contacted about

40:05

this case and forever letting them

40:07

know the plane ago stations were

40:09

happening and seeking their opinions are

40:12

concerns. And. Oh man did

40:14

they need an editor for this letter. Robotically.

40:17

Matter of fact: lousy with acronyms.

40:19

Sure, Enough Nearly A year and a

40:21

half after the play, negotiations had first

40:24

been reported, a whole new crop of

40:26

people did have opinions and. Concerns.

40:29

They. Called the prosecution or says they called

40:31

the press they called Capitol Hill. The.

40:33

A P ran a story. Please. Negotiations?

40:35

Could me know? Nine Eleven Defend: it's

40:37

face the death penalty. The Us tells

40:40

families. Conservatives: Made. Immediate

40:42

hey. Ted. Cruz to

40:44

to his podcast. The story

40:46

is absolutely outrageous and and

40:48

I think every one hearing

40:50

it should be shocked and

40:52

should be furious. Family members

40:54

expressed outrage on Tv. I

40:56

feel. It's divine. Administration should order

40:58

them not to accept his plea

41:00

deal. More than two thousand did.

41:03

Some family members wrote an open

41:05

letter to the President protesting the

41:07

plea deal. Peaceful.

41:09

Tomorrow's members are feeling like ah as

41:11

they could just gather all the family

41:13

members in the same room. And

41:15

explain everything they knew about how broken the

41:17

military. Commissions were maybe the others

41:19

would see. They. Were never gonna

41:22

get a trial or the death penalty. If

41:25

they wanted answers or any shred of accountability,

41:27

the plea deal with the best they could

41:29

hope. For. Within.

41:34

A couple of weeks President Biden

41:36

broke his silence regarding the plea

41:38

deals. Well, he never said anything

41:40

publicly, but allied in a prosecution

41:42

court filing said the by an

41:44

administration declined the so called policy

41:46

principles Biden was not on board.

41:48

He would not support an assurance

41:50

of know solitary confinement or an

41:53

assurance of torture rehabilitation. to

41:56

the past year and a half know and it seemed clear

41:58

on what role the white house is playing in these unprecedented

42:00

plea negotiations in this unprecedented

42:02

criminal case in this unprecedented

42:04

court. Maybe the president really

42:06

disagreed with the terms of the deal. Or

42:09

maybe in September of 2023, it just

42:11

came down to Real Polytique. He's

42:14

coming up on an election. And perhaps the

42:16

mother of all bad Guantanamo headlines is

42:19

the one that says you're negotiating sleeping arrangements

42:21

and therapy with Khaled Sheikh Mohammed, the man

42:23

who claimed to have beheaded Daniel Pearl and

42:25

orchestrated the most devastating terror attack in modern

42:28

history. I

42:32

kept thinking about Colleen. How on earth

42:34

did she have the stamina for this? I

42:36

would have given up years ago, probably a decade

42:38

ago. I found some way to talk

42:40

myself out of caring anymore. I'd asked her, was

42:43

that the hardest part? Just staying with

42:45

it. No. No. Because

42:49

I'm so stubborn. Seriously,

42:53

being stubborn. Like,

42:56

I am not going

42:58

to let their failure

43:00

be mine as well.

43:03

I'm sticking with this. I'm

43:06

not giving up until this

43:08

ends some way, somehow. I'm

43:11

not giving up. And

43:15

so, Colleen headed down to

43:17

Guantanamo. Because of

43:19

the plea negotiations and before that COVID,

43:22

the 9-11 case hadn't seen much court action since 2019. Now,

43:26

September of 2023, the whole

43:28

enterprise cranked back up again. For

43:31

the 9-11 case, that's five teams of

43:34

roughly 20 people per team,

43:36

lawyers and interpreters and analysts, then the

43:38

judge and his staff, plus observers and

43:40

reporters and their minders and

43:42

escorts, maybe 150 people

43:44

heaving themselves to Cuba, including

43:48

Colleen. I traveled

43:50

alongside Colleen. She hadn't been to Guantanamo for

43:52

three and a half years. She was

43:54

in a brighter mood than I expected. At

43:57

the hotel, she joked that the complimentary laundry pods in

43:59

her room were not as good might be listening devices.

44:02

That's a secret listening device. That would

44:04

be really funny. It

44:07

would be. Throw it all thrown in the washer. That's

44:09

what activates it to like send

44:11

the... I

44:13

didn't see Colleen all that much during the week. At

44:16

Guantanamo, the VFM's are closely guarded and

44:18

protected, mostly in an effort to keep

44:20

media away from them. So it felt

44:22

almost illegal to seek her out. In

44:24

the courtroom gallery, we'd nod to each other self-consciously

44:27

as I walked by the VFM section to get

44:29

to my seat. It

44:31

was a strange split-screen experience to watch

44:34

this pretrial hearing, knowing,

44:36

or at least strongly believing, none of this

44:38

is leading to an actual verdict. But

44:41

also, it's court. So it's

44:43

interesting. People arguing passionately about

44:45

secrecy in the Constitution, witnesses

44:48

testifying nervously or testily.

44:51

Within the larger narrative of inaction, there's a

44:53

lot of action. This

44:56

week's hearing, they were dealing with the crux of the case,

44:59

whether statements the defendants made in 2007, after

45:02

they got to Guantanamo and were no longer

45:04

in CIA custody, whether those

45:06

statements could be used as evidence at

45:08

trial. The statements, which

45:10

are critical to the prosecution, are

45:13

known as the clean team statements, since

45:15

they were taken by teams of government investigators

45:18

who were not CIA and

45:20

were not, the government argues, using any form

45:22

of coercion. The

45:24

defense wants the clean team statements thrown

45:26

out, arguing, among other reasons,

45:28

that they are tainted, a

45:30

back doorway for torture-derived evidence to enter

45:32

the trial, and that the interviews were

45:35

not truly voluntary, not

45:37

to mention that the men were never sufficiently informed

45:39

of their rights in these interviews or allowed a

45:41

lawyer. The

45:43

fight over whether to suppress these statements has been

45:45

going on, you'll be shocked to

45:48

learn, for many years, in many different forms.

45:51

The week we were there, the excitement was that

45:53

former FBI agent Frank Pellegrino was

45:55

going to be testifying, the agent who

45:58

took a clean statement from Khalid Sheikh Mohammed. at

46:00

Guantanamo. He'd been

46:02

after KSM for years, prior to September 11th,

46:05

probably knew more about him than anyone in law

46:07

enforcement. Pellegrino's testimony

46:09

seemed great for the prosecution. He

46:12

came across as credible, said KSM answered

46:14

his questions voluntarily, but he

46:16

even cracked a joke or two. But Pellegrino

46:19

also seemed rested with anger at the

46:21

position the CIA had put him and

46:23

other FBI agents in because of the

46:25

black sites and the torture. After

46:28

questioning Pellegrino said, quote, I think that the

46:30

whole thing from the beginning was a flaming

46:33

bag of crap that we got stuck with,

46:35

unquote. One defense attorney told

46:37

me it was the first time a witness had

46:39

said something so plainly critical of the torture

46:41

program since the proceedings began a dozen

46:44

years ago. A couple

46:47

other significant things had happened too,

46:49

hugely significant. The

46:51

week before the judge had severed Ramzi

46:53

bin al-Shaba from the 9-11 case, deciding

46:55

after about a decade of litigation that

46:58

he was mentally incompetent to aid in

47:00

his own defense. Ramzi

47:02

bin al-Shaba is generally considered the

47:04

second most culpable of the five

47:06

defendants, sort of like KSM's deputy.

47:08

The other major news was that a

47:10

month earlier, a judge in the other death

47:13

penalty case before the military commissions against

47:15

the Saudi man accused of orchestrating the

47:17

deadly bombing of the USS Cole in 2000,

47:21

that judge threw out the clean team statements

47:23

in the Cole case, saying they

47:26

were tainted by torture. These

47:28

developments seemed to me to point in

47:30

the direction of plea deals. The

47:33

9-11 case seemed like it

47:35

was disintegrating. I'd come down to

47:37

Guantanamo thinking the plea deals were dead, but

47:39

everyone was saying, they're not, really they're not. We

47:41

just have to find a different way to get

47:43

them done. Jay Canell

47:45

told reporters, the plea deals are

47:48

sleeping, not in a

47:50

coma, sleeping. Most evenings, a

47:52

bunch of us reporters hang out on outdoor

47:59

couches in the hotel room. hotels courtyard. Contract

48:02

workers often sit at the tables nearby,

48:04

everybody drinking, while the leggy stray

48:06

cats of Guantanamo dart around the edges of

48:08

the patio. Colleen came

48:10

to join us a couple times to talk about the

48:12

case and also to reminisce. She's

48:14

known most of these reporters for years. A

48:17

few of them were on a flight to

48:19

Guantanamo so notoriously terrifying that people still talk

48:22

about it. I had taken a lot of

48:24

Ativan and I went and sat next to

48:26

you and said, I'm like, tell me

48:30

everything you know about Colleen's shake, Muhammad.

48:35

And I took like three senses of notes

48:37

and then I trailed off,

48:39

I guess. I'm not a war reporter,

48:41

but I imagine this is

48:50

sort of what it's like after hours, minus

48:52

the danger. People thrown together

48:55

trying to make sense of a protracted battle.

48:58

The so-called war on terror has been

49:00

enormous, global. And

49:02

yet sitting here, it can feel like the whole thing is

49:04

funneled down to this small clatch of people, reporters,

49:07

victims, attorneys, soldiers, drinking

49:09

in the courtyard of the Navy gateway in and sweet.

49:17

We start talking about how this case ends. Plea

49:20

deals, John Ryan from Law Dragon says, 30%.

49:24

Terry McDermott, who co-wrote The Hunt for KSM

49:26

agrees, there's never going to be a trial.

49:29

Carol Rosenberg of the New York Times thinks maybe

49:31

an abatement could happen, but at some point

49:33

the judge might say, okay, government, if you

49:35

won't produce CIA witnesses, then I'm going to

49:37

pull the plug. Everybody go home

49:39

until you're ready to make this a fair trial,

49:42

which could mean no resolution at all. One

49:46

night, Jay Canell, the defense attorney, turns up.

49:48

He's wearing shorts and sandals, a brace on

49:51

his ankle from an injury sustained in spin

49:53

class. He grabs a club soda.

49:55

I ask him, all

49:57

these things that are happening, the decision to

49:59

sever around the country. Benal Sheba, the USS

50:01

Cole judges ruling on the clean team statements,

50:03

the flaming pile of crap. Does

50:06

it feel like this case might be crumbling in the

50:09

defense's favor? He

50:12

says, look, I know you've been down

50:14

here before. And there's this temptation to

50:16

feel like I've

50:19

come at a pivotal moment and

50:21

something important is happening. But

50:24

this is our 47th hearing. And

50:30

they've all felt like that. Like, I always

50:33

feel like if they were a boxing match, we'd

50:36

have won every round on points. But what

50:38

does that matter? There's no tallying up of

50:40

points. There's no points. And

50:42

so, you know, we'll come back in November and then

50:44

we'll come back again in February and we'll come back

50:46

again back and back and back. Jay's

50:50

been on this case full time

50:52

since 2011. Jay

50:54

believes in the rightness of his mission. That

50:57

the U.S. government's power cannot go unchecked

50:59

or trample human rights. He

51:01

tries not to get caught up in what should happen or

51:03

could happen. He says he's going to stick

51:05

with this case as long as it takes. But

51:08

for a minute there, he really thought this

51:10

thing might end. That the plea deals would

51:13

materialize. Maybe by the end of 2022. He

51:15

started planning his next move, entertainment

51:18

law. He wants to work in the music industry.

51:20

He even ordered slick new business cards,

51:23

the kind that feel like a credit card. Do

51:25

you ever get

51:29

the sense that the prosecution feels

51:32

exactly the same way you guys do on

51:34

the defense side? That everyone is just like

51:37

we're locked in this like

51:39

falling apart train

51:42

that just keeps going? In

51:49

dark moments, I feel like I'm

51:51

a puppet in a revenge

51:53

fantasy where

51:57

somebody 15 years years

52:00

ago decided that they were

52:02

going to put on this show about

52:05

getting the death penalty against these men, knowing

52:08

that the military doesn't really

52:11

execute people. Military hasn't executed anyone since

52:13

1961. And

52:18

that, you know, they needed actors for their playwright.

52:20

They need to put people in place. They need

52:22

to put defense attorneys in place, prosecutors in place,

52:25

judge in place. I

52:28

don't always feel that way, but sometimes it feels like

52:30

that. And

52:33

I could entirely imagine that the prosecution would

52:35

feel like that, that they are, you know,

52:38

put up there to represent the

52:41

forces of revenge and that we're put

52:43

up there to represent the forces of

52:46

the rule of law and that there's

52:48

just kind of a play that happens.

53:00

The prosecutors weren't permitted to discuss the case with

53:02

me on the record. So I

53:04

can't say whether they share Jay's revenge fantasy

53:07

feeling. But the prosecution

53:09

were the ones who initiated the plea

53:11

negotiations two years ago, as the road

53:13

to trial was getting only longer and

53:15

darker. They want this show over, too.

53:26

Toward the end of the week, I checked in with

53:28

Colleen one last time. She'd been up

53:30

since 3 a.m., she said. Her mind had been

53:32

churning. So she said she wrote it all down

53:34

to get her thoughts outside her body. She'd

53:37

underestimated how sad this trip was for her.

53:40

I never cried down here. I mean, like, yeah,

53:43

this is like the third time I cried down here.

53:45

I don't usually cry down here. I'm not saying that's like

53:47

good or bad, just is what it is. There

53:50

was just this trip was really

53:52

emotional. room

54:00

a couple floors below mine. She was

54:02

falling apart a little, missing her brother,

54:05

worried she couldn't remember his voice anymore. And

54:08

also just being down here again watching this

54:10

case rattle back to life. I

54:13

think I've pinned a lot of my

54:15

hope for accountability and

54:17

getting to the bottom of this on

54:21

some kind of a legal process because you

54:23

know it just feels like Jesus. He

54:26

was murdered. Somebody like

54:29

be responsible for that. This

54:32

side of Colleen I wasn't familiar with.

54:35

I'd seen only confident, rigorous, determined

54:38

Colleen, but never Colleen in

54:40

despair. You know I feel like

54:42

I've said this 20,000 times but like I'm

54:44

really feeling this now. I

54:48

don't know that there's ever, that this

54:52

is ever gonna happen. I don't know

54:54

that there will ever be a trial.

54:56

I've never, I've never felt, I've

54:59

never questioned it as strongly as I am

55:01

now. Waiting

55:07

20 years for a trial doesn't

55:10

just deny Colleen answers. Year

55:12

after year after year it prolongs her

55:15

grief, makes dealing with her

55:17

brother's death harder if such a

55:19

thing is possible. By

55:22

the end of the week Colleen was more collected. She

55:25

told me the VFM's had met with the defense the

55:27

night before. She cried a lot at

55:29

that meeting too she said. Like

55:31

Jay Canel she knows better than to get her hopes

55:33

up but she realized she'd gotten

55:35

her hopes up about a

55:37

plea deal. The lawyers had

55:39

talked about how close they'd come. Really

55:42

kind of close to a deal. In

55:44

the meeting Colleen had aired her most cynical

55:46

and she worries possibly her most realistic analysis

55:48

of how this all ends. Which

55:50

is nothing. No trial,

55:53

no plea deal, no ending.

55:56

And that that nothingness, that is the

55:58

plan. A plan that

56:00

would serve the interests of some powerful

56:03

stakeholders, namely the CIA, which

56:05

would never have to reveal the identities

56:07

of the people who conducted and enabled

56:09

torture, or the countries where it

56:11

all happened. Also

56:13

the detainees, who could quietly stay

56:15

here at Guantanamo in the communal

56:17

confinement they want, presumed innocent until

56:19

they die forgotten. The

56:22

politicians, who could keep kicking this toxic

56:24

can farther and farther into the distance,

56:27

pretending it's out of their hands. Who

56:30

this plan doesn't serve, of course, is

56:32

Colleen. A

56:38

postscript, and perhaps an antidote to this

56:40

dolorous trip. While

56:43

we were at Guantanamo, another Peaceful Tomorrows member

56:45

was there too, Leila Murphy.

56:48

Her week was so different from Colleen's. She

56:50

was so different from Colleen's. In

56:53

the past few years, as founding members of Peaceful

56:55

Tomorrows have grown infirm or died, a bunch

56:57

of young people have joined. Their

57:00

children of 9-11 victims, Leila and her

57:02

sister Jessica, Liz, Aiden, a young woman

57:04

named Chanel started coming to the Zoom

57:07

meetings in November. Obviously

57:10

they're self-selecting, but a remarkable number of

57:13

these 9-11 kids have studied Arabic and

57:15

the Middle East, or spent time there. Leila's

57:18

becoming a lawyer. She wants to do criminal

57:21

defense. Her sister's in med school.

57:23

She's interested in the effects of torture on human

57:25

health. The Murphy

57:28

sisters have joked, darkly, that this

57:30

was KSM's plan all along, to

57:32

radicalize the children of 9-11 victims against

57:34

their own government. During

57:38

the day at Guantanamo, Leila met with attorneys,

57:40

took copious notes during court. She

57:42

was with two other young people, one a fellow

57:44

law student, another a recently minted lawyer. In

57:47

the evenings, they did what young people do,

57:49

played cornhole at the tiki bar, played tennis,

57:51

pickleball. Also, I just love the sun. First

57:54

dedicated pickleball court in the Navy. Wait,

57:56

actually? That's what it does all the time.

58:00

like pickle clip art. It's

58:04

not that Layla was living it up. It's

58:06

that she seemed to have no expectations from this trip.

58:09

She was an observer in the literal sense, taking

58:12

it in, noting it down. She

58:15

admires Colleen and Terry and the other members

58:17

of this group, but she doesn't need what

58:19

they need. She's not waiting for

58:22

answers from the 9-11 accused. She

58:24

doesn't need a trial. I'm sure a plea

58:26

deal would be good. She'll lobby for that. But

58:28

whatever happens to these five aging defendants, she

58:30

doubts it'll have meaning for her. What

58:33

Layla wants, what would be most meaningful to

58:35

her, is an admission of

58:37

guilt from the U.S. government. Their

58:41

horrible behavior is the reason we're in this situation

58:43

and the reason it's dragging on for so long

58:45

and the reason that they're even pleased, like there will

58:47

never be any like real justice, you know, because

58:50

it's just all so fucked up. Their,

58:54

you know, the U.S.'s behavior is the reason

58:56

this is dragged on. Layla's

58:58

voice dropped. A guy in military

59:00

uniform was walking past, close enough to hear

59:03

us. Did you just

59:05

get nervous because you said someone who

59:07

looks like military? Yes, I did. That's

59:09

classic what I'm talking about. I

59:14

understood her trepidation. It feels

59:16

somehow heretical, or at least ungrateful,

59:19

with all these soldiers and sailors around. For

59:22

Layla to say, all the

59:24

government's post-9-11 effort, the endless

59:26

war and the prison and the court, I

59:29

know, you did it for me. You

59:31

did it in my name. But

59:33

none of it worked. So it's

59:35

time to stop now, to say you

59:38

made a huge mistake and that you're sorry.

59:42

Layla knows it's a long shot. She

59:44

was three years old when her father died in

59:46

2001. And in all the time

59:48

since, the government has never held itself accountable,

59:51

has never worked to reset our common morality

59:53

as a country. But

59:55

this young person who's about to become a lawyer,

59:57

it'd be so great if she could hear us.

1:00:00

have this little bit of hope in

1:00:02

the forces of the rule of law. This

1:00:20

episode in season four of The

1:00:22

Real was produced by Jessica Weisberg, edited

1:00:24

by Julie Snyder, Dana Chivas, Jen Gwar,

1:00:26

and myself, with Rosini Ali, John Ryan,

1:00:28

and Carol Rosenberg. Additional reporting from Cora

1:00:30

Currier and Emma Grillo. Fact

1:00:33

checking by Plucy Kudak and Ben Fallon.

1:00:35

The original score was composed by Sofia

1:00:37

Dely Alessandri. Music supervision, sound design, and

1:00:39

mixing by Phoebe Wong. The

1:00:41

series is produced by Serial Productions in the New

1:00:43

York Times. You can hear the rest of the

1:00:45

season, and I recommend it wherever you

1:00:48

get your podcasts. Diane Wu,

1:00:50

Mike Comite, Safia Riddle, and Matt Tierney helped put

1:00:52

together this episode of our show. Special

1:00:54

thanks to Alameen Sumar, Susan Westling, Ende

1:00:57

Kubu, Mac Miller, Nina Lassam, and New

1:00:59

York Times deputy managing editor Sam Dolnick.

1:01:02

Our website, thisamericanlife.org.

1:01:05

This American Life is delivered to public

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radio stations by TRX, the Public Radio

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Exchange. Like as always, Joe

1:01:11

Programs co-founder, Mr. Tori Malatia. He

1:01:14

told me that growing up, his family

1:01:16

had not one, not two, but

1:01:18

three wells in the backyard.

1:01:21

I was like, really? Well, well,

1:01:23

well, yeah. I'm Ira Glass.

1:01:25

Back next week with more stories of this

1:01:27

American life. Next

1:01:44

week on the podcast of This American Life, Bobby

1:01:47

is trouble remembering the names of all the dogs in the

1:01:49

dog park. So he keeps a list on

1:01:51

his phone. At the top, the

1:01:54

ones who like his dog Chewy. Like there are

1:01:56

some dogs that bully Chewy, so we throw them

1:01:58

at the bottom of the list. And

1:02:00

then we know, hey, this one

1:02:02

is, is you beat up Chewy.

1:02:05

You might want to believe that name. Talk

1:02:07

Park Politics and the many,

1:02:09

many, many ways that lists help us navigate

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the world. Next, we're going

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