They’ve waited years for justice. Now, these 9/11 families are losing hope

Don Arias lost his younger brother in the September 11 attacks. He has travelled to Guantanamo Bay three times to attend hearings in the case, hoping they would end in a death sentence for the man accused of being the mastermind of the plot.

Elizabeth Miller was six when her father died on that dark day. She had favoured a plea agreement reached last summer with three of the defendants, who would have received life sentences after describing their precise roles as conspirators in the attacks.

Two different generations. Two opposing opinions and experiences. Yet Arias and Miller now both doubt the case will ever end.

After an emotional year in which the plea agreement was twice upheld and twice invalidated, and with more appeals on the horizon, they are among the September 11 family members who have become disillusioned with the case that is meant to deliver justice for the worst domestic terrorism attack in US history.

Khalid Sheikh Mohammed, the man accused of hatching and directing the plot that killed nearly 3000 people, has been in custody for more than two decades. He was first charged in 2008, and a date has not been set for his trial.

“I kind of resigned myself,” said Arias, 68, a retired air force officer whose brother Adam Arias worked for an investment company at the World Trade Centre. “Let them rot down there. Let them languish in legal limbo for the rest of their lives. They will have to answer to their crimes to a higher power one day.”

Miller’s father, Douglas Miller, a firefighter in Rescue Company 5 of Staten Island, was also killed at the World Trade Centre. She has made the weeklong trek to the court four times since 2021.

“At this point, regardless of what path you are advocating for as a 9/11 family member, there is no end in sight,” said Miller, 30. “I think I’m just losing faith.”

Torture and a splintered case

Five men have been charged in the case. But it has been complicated by the defendants’ odyssey in CIA prisons after they were captured in Pakistan in 2002 and 2003.

Rather than send them to the United States directly for trial, the George W. Bush administration kept them incommunicado and subjected them to torture. They were moved to Guantanamo Bay in 2006, where they remain today, and have been charged twice in death penalty cases, in 2008 and 2012. But the trials have not begun.

Instead, the case has splintered and has been bogged down in appeals.

One defendant, Ramzi Binalshibh, has been declared mentally unfit to go to trial, a situation his lawyer blames on his torture. His case has been assigned to a different judge. But in a letter to the September 11 families last month, the prosecutor’s office said it would seek to have him found competent again, then return his case to the joint trial, an effort that could add months or even years of litigation.

The confession of another defendant, Ammar al-Baluchi, cannot be used as evidence against him because the judge found that it was tainted by his torture and time in CIA detention. Prosecutors are appealing that decision.

The other three men were on the verge of a resolution through the plea deal with a senior Pentagon official a year ago. The agreement required the defendants – Mohammed, Walid bin Attash and Mustafa Ahmed al-Hawsawi – to fully admit to the crimes in exchange for life sentences. They would have waived most rights to appeal and given up the right to challenge their confessions as unlawfully obtained through torture.

But former US defence secretary Lloyd Austin cancelled the deal just days after it was reached. His successor, Pete Hegseth, has also rejected the deal. Defence lawyers are preparing an appeal to try to reinstate the agreement, which could take up much of next year.

New judge, new appeals

There have been no hearings in the case since January. But a new judge, Lieutenant Colonel Michael Schrama, has reserved the Guantanamo court for a session starting on October 27, and the hearings could restart then.

Even so, it is unclear how much Schrama can do to push the case to trial.

Defence lawyers argue that, as long as there are appeals, the court’s own rules prevent the case from moving ahead. Resolving that question alone could drive higher-court appeals.

Another question looming over the case could lead to even more litigation and appeals: does a clause in the annulled plea agreement mean the government can no longer seek the death penalty?

Court hearings have focused on how the defendants were tortured, overshadowing the families’ stories of loss. The charges against the five men are locked in time, naming 2976 victims of the attacks in New York, at the Pentagon and in Pennsylvania.

But hundreds of firefighters and others who worked at the ruins of the World Trade Centre have also died of cancer and other diseases attributed to their exposure to toxic dust.

Wrenching, disappointing journey

Parents and grandparents of those who were killed on September 11 have died while waiting for the trial to begin, most recently Eunice Hanson, 89, in April. She lost her son, Peter; her daughter-in-law, Sue; and her granddaughter, Christine Lee, 2, in the attacks. She then lost her husband, Lee, in 2018.

The trip to Guantanamo can be intense and exhausting for the families. The people the Pentagon prosecutor’s office call victims and survivors spend their week in a cloistered, exclusive bubble. They are escorted by soldiers in combat uniforms and get special seats in the courtroom. Guards sometimes yank shut a blue curtain to hide them from the public in court.

Adding to their emotional roller coaster, hearings have been abruptly cancelled for reasons that have included a judge’s health crisis, a developing hurricane and flooding at Camp Justice, the temporary court compound that was established for the September 11 trial.

Then, for the past year, family members have been confronted with two stark scenarios over which they have had no control: would the case be settled, or would the wait for a trial continue?

Dawn Warner Yamashiro, 55, whose brother Brian Warner was a systems engineer at a brokerage firm at the World Trade Centre, has been to hearings twice and said she would go again, but with low expectations that the court could deliver the finality the families and survivors deserve.

“Everyone’s saying, ‘Death penalty, death penalty’,” she said, predicting that such an outcome was unlikely for the defendants “because of the torture they endured”.

She added: “I don’t want them to see the light of day. We know who did it. Does it really matter if it’s declared in a court of law? To me, no.”

Especially distressing to some of the relatives is the possibility that the defendants could die as innocent men. In recent years, prosecutors have told them that in the US military system, if a person who has been convicted dies while appealing a verdict, the conviction is nullified.

Miller is particularly frustrated by what she sees as a fundamental misunderstanding about how plea proceedings would be handled at Guantanamo.

With a guilty plea, she said, there would be a hearing in which family members could talk about their loss. The defendants would be required to tell the court about their roles in the attacks, and prosecutors would lay out the government’s case.

In the alternative – a trial someday – prosecutors would have to prove the defendants’ guilt every step of the way, with each move under a microscope, and possibly years of different levels of appeal.

That, and her opposition to the death penalty, has motivated her to support the pretrial agreement.

But she is not hopeful.

“There’s this voice inside my head saying, ‘Your efforts may be fruitless,’” she said. “The realities of this is, it may never end.”

This article originally appeared in The New York Times.

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