A particularly thorny policy question facing the Biden administration is whether to rethink the military commissions system setup to try the detainees who have been charged. The system has moved at a glacial pace that has rendered it all but dysfunctional.
Eight years after their arraignment, the death-penalty trial of Mr. Mohammed and four other men accused of conspiring in the Sept. 11 terrorist attacks, which killed nearly 3,000 people, remains stuck in pretrial hearings.
Year after year, prospects for what could be a very lengthy trial — even before years of inevitable appeals — keep receding; the latest delays, partly caused by travel restrictions during the coronavirus pandemic, mean the trial cannot begin before the 20th anniversary of the attacks.
In practice, traditional civilian courts have proved far more effective at bringing terrorists to trial and obtaining convictions that withstand appeal; but each year, Congress prohibits the transfer of detainees from Guantánamo to the mainland for any reason — not for a trial or medical care, nor to serve time on a sentence or even for execution.
Another way to resolve the case without a contested trial may be through plea deals. That, however, would mean giving up on seeking the execution of the accused 9/11 conspirators. Jim Mattis, the defense secretary at the time, fired the top lawyers overseeing the military commissions in 2018 while they were exploring the possibility of exchanging guilty pleas for life in prison.
In those talks, according to people familiar with them, defense lawyers had been seeking assurances that the defendants could serve their life sentences at Guantánamo rather than in the harsher, isolating “supermax” prison at Florence, Colo., where men convicted in federal court of terrorism crimes typically serve time.
If such a deal were ever reached, the Guantánamo prison would most likely have to remain open for decades — and the Pentagon would again be confronted with the question of whether to build a facility capable of geriatric and end-of-life health care.