Twenty-five years after the 9/11 attacks in 2001, Khalid Sheikh Mohammed, accused of conceiving and coordinating the attacks that killed nearly 3,000 people, has not yet been tried.
He has been imprisoned for two decades at the Guantánamo Bay military detention center. A judge recently set the trial to begin on June 5, 2028, but some of the lawyers familiar with the case doubt that it will start then or ever reach a verdict.
The case has been stuck in a legal labyrinth largely due to the torture Mohammed endured after his capture in Pakistan in 2003, as shown in an analysis published by Associated Press.
The process has been at a standstill for years because the court must determine whether the evidence and statements obtained after Mohammed's torture can be used against him. "Everything is tainted by politics and the lack of accountability for torture," says Joshua Dratel, a lawyer who has helped ensure Mohammed's legal representation.
FBI confession cannot be used
At the end of August, the military judge who set the 2028 date ruled that prosecutors cannot use an alleged confession given by Mohammed to FBI agents in 2007.
The judge deemed the statements affected by the treatment he received earlier in CIA secret prisons. Khalid Sheikh Mohammed was tortured, including through waterboarding, a technique simulating drowning.
An American Senate report indicates that he underwent 183 waterboarding sessions during his time in CIA custody.
The decision complicates the prosecution's case. The U.S. government chose not to contest it, in part because an appeal could further delay the process.
Mohammed was brought to Guantánamo on September 5, 2006, after over three years spent in secret detention centers in other countries.
The agreement that could have spared him from the death penalty
A possible way out emerged in 2024. Khalid Sheikh Mohammed and two of his co-defendants agreed to plead guilty in exchange for life imprisonment, without the possibility of parole. The agreement would have eliminated the death penalty and avoided a lengthy and uncertain trial.
Just two days after the announcement of the agreement, then-U.S. Defense Secretary Lloyd Austin revoked it, stating that such a significant decision should be made by him.
Further court disputes followed. Military judges initially believed Austin had intervened too late, but a federal appeals court ruled in 2025 that the minister had the right to annul the agreement. The understanding was thus definitively removed, and the case returned to pre-trial procedures.
The victims' families are divided. Some would accept a life sentence to bring closure and gain more insights into the attack's preparation. Others insist that the death penalty should remain an option.
Terry Strada, whose husband, Tom, died in the World Trade Center, says that families still want to see justice served. "We very much want this to end at some point. We want to see justice done. It's as important as it was 25 years ago," she told AP.
Strada opposes any agreement that would eliminate the possibility of Mohammed being sentenced to death. She prefers him to remain indefinitely imprisoned at Guantánamo rather than support such a deal. She fears that if he is not executed, a future American leader might agree to release him in exchange for Americans held captive in another country.
Civil trial abandoned due to political opposition
In 2009, the Barack Obama administration tried to move the trial to a civilian court in Manhattan, just a few streets away from where the World Trade Center towers stood.
The plan immediately faced opposition. Critics warned that Mohammed could use the trial to spread his messages and that his presence in New York could turn the city into a target again. Ultimately, authorities gave up.
The case remained in the military commissions system through which terrorism suspects held at Guantánamo are tried. Joshua Dratel argues that this system has proven ineffective in resolving the numerous disputes related to torture, evidence, and the rights of the accused.
David Raskin, the prosecutor who would have led the case if the New York civil trial had taken place, believes that case would have ended in a conviction. Instead, the military commissions have been paralyzed by endless legal battles over their own legality and procedures.
"I predict there will never be a completed trial in front of a military commission for Mohammed and the other defendants in the 9/11 attacks case," says Raskin.
The trial is scheduled to begin on June 5, 2028, but lawyers doubt a verdict will ever be reached.
G.P.