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has prevailed over every challenge and lifted us to the summit of human endeavors. >> c-span, your unfiltered view of the conventions. powered by cable. by jess bravin, supreme court correspondent for the wall street journal and wrote a book on guantanamo bay. nice to see you again. tell us about the plea deal. what was in it and how long was it in the works? guest: what the deal was was a much life terms for three of the initially six, then five, descendants and the 9/11 conspiracy case in exchange for pleading guilty. they were guilty, they plead guilty, and they go to prison for life, probably staying where

they are now, guantanamo bay. host: what was the thought about doing it that way, to avoid a lengthy trial? guest: these defendants have been in u.s. custody for 20 years, and they have been at guantanamo bay since 2006. trial proceedings against them began in 2008, so this procedure has gone on, you can say, it is somewhat lengthy right now, and what was the purpose of the plea deal? the problem was the government's case was compromised. there is little doubt that they are guilty. i was at the quorum in 2008 when five attempted to plead guilty but were not allowed to for procedural reasons, so there is not a lot of doubt like a case of mistaken identity going on. the issue comes down to government misconduct. that is the obstacle. that is essentially what a lot of people know was the torture

that may be a legal term but the brutal treatment of these detainees before they were charged and brought to guantanamo bay. that is a sticking point because the cia did not want defendants to introduce evidence of the way they were treated when they were in cia custody before they were transferred to guantanamo bay. that is the issue that has held up the case for so long. host: does that mean they could walk as a result of a trial? guest: well, in the very unlikely event that they were acquitted, i suppose, but, no, that is not really a possibility. the only question hanging over it for years and years is whether the death penalty can be applied or not and the prosecution concluded, and legal experts concluded years ago that the case was tainted and the likely result will be the death penalty removed from the table at some point in the proceedings, whether a plea bargain or if they are convicted or sentenced to death on appeal,

that was the likely outcome all along. this is not the first time there was a plea deal in the works. there was one several years ago, similar terms, guilty life term, death penalty comes off the table and almost the same thing happened, the defense secretary james mattis at the time learned about it and removed the convening authority, the military term for the head of the trial, removed the authority for what he said were different reasons, but it was widely seen as an effort discuss a plea deal, just like this -- effort to scuff a plea deal, just like this. host: we have our back up phone numbers are running right now, and i would like to share those numbers if you would like to join the conversation with jess bravin. republicans are 202737002. democrats are 202-737-001.

independents, 202, 638, 0025 -- 200-638-0025. you mentioned that three had a plea deal, what happens with the other two? guest: one was severed from the case last year because he is mentally incompetent for reasons related to his treatments. he has been separated from the case, so what happens to him is unclear. he is not mentally competent to stand trial, according to a military judge. host: how long ensley competent. ac brain-damaged? do we know details? guest: we know some details but he is in a high-security lockup. i have not talked to him, so we have to rely on third parties. he is a kind of posttraumatic

stress disorder situation, someone who cannot participate meaningfully in his defense, and that is a requirement, so he has been severed from the case. there was another person in his same situation who was severed from the case more than 12 years ago for a similar reason, that the convening authority at the time determined he had been tortured and it was impossible to try him and he is off the case, as well. there are six rows for defendants at one tomo be even though there were only five when the case began because the sixth was severed from the case. now there is a fifth one who is out of the case, the one who did not agree to the plea bargain because he was holding out for certain stipulations on what he was entitled to when he was in prison. he wanted treatment for torture

victims and guarantees that he would have a certain double of conditions when he was confined for life. the government refused to make commitments in that area, so he held out. the other three gave up. they wanted some of our guarantees but the a them up. when the plea deal came together , essentially, it was because the defendants, they gave up, they dropped all their demands other than not being executed, and the government said, ok, that is as much as we are going to get. there's nothing more we can get from them, so they said, let's make the deal with the three. and that is what the defense secretary decided was acceptable. host: defense secretary austin revoked the plea deal not long after it was made. why? guest: well, there is the official story and then there is what contacts suggest may have

also played a role. the official story is that the defense secretary did not know the deals were coming, and when he learned about them, he determined the gravity of the case was so important that he should take over authority about negotiations and that he believed given the 9/11 terrorists and the incredible gravity of the crime, there should be a death penalty trial for the case. that was the official story. host: there was also pushback from the families of the 9/11 victims. guest: well, there are thousands of families affected by the case. they are like americans, overall, not knowing what to do. many believe there are not resolutions acceptable other than the death penalty. and if any crime deserves the death penalty, it is hard to

think of one other than this that would be more all fight. many of the victims do not believe in the death penalty. they live in new york and new jersey, states that have abolished the death penalty and they don't believe in it, regardless of the gravity of the crime. there states not allow it. and then there are people who are not philosophically opposed, but like the prosecution, they concluded this was the best way to resolve the case and move forward. the plea agreement did include what you might call a mini trial with an opportunity for the victim's families to question defendants, the defendants promised to answer truthfully whenever they were asked by the victim's families as presented by the prosecution. that offense dropped any right to object to evidence that the government might introduce, including evidence that otherwise they would say came from torture like statements provided by interrogators. the defendants would be able to

testify about their treatment and explain what they did and why they did it, but there would be a proceeding that took place. host: right now, what is going to happen? is there going to be a trial? i assume the death penalty is on the table still. guest: what is happening now as we do not know. this experiment that when tom obey -- at one time obey has been full of -- at guantanamo bay has been full of surprises but there are twists and turns because all of us learned that it is difficult to set up a legal system from scratch when you already have one and to create a new one designed to limit constitutional rights can be tricky, and all kinds of new questions arise as it goes forward. and they have not answered the way regular systems have so what happens next?

secretary austin said he was revoking the plea agreement, but the defense says he does not have the legal right to do this, and there are certain reasons why they have an argument. so they raised that argument before the military judge and there may be others, and the judge said yesterday that he would consider what the rules are for the situation, so that offense claims it is too late and that this was a sealed agreement and it has been modified and the government cannot back out after this deal at this point. the defense secretary takes a different position, and that will be indicated before the military judge. yesterday at the hearing, military prosecutor said nothing. they had no instructions on how to make their argument, so defendants made certain motions, military prosecutors said they

were waiting for instruction. host: let's talk to callers. we start with jack, massachusetts, independent. jack, are you there? we don't have jack. let's try bary, democrat, florida. caller: yes, ma'am -- they were involved in premeditated plan to kill people on our own soil, and i don't see where they should have many rights. having said that, maybe we

should stay out of their problems over there. any person killed will be dealt with strongly and let it go at that. i don't think they have many rights because of the nature of the beast. host: let's get a response. guest: they don't have many rights, they are living in prison, where they have been for decades, and that guantanamo bay naval base, they don't get out, and they are not being coddled. the question is whether they will be put to death and what the procedures are for united states court to do that. the problem comes down to alleged torture. that is why in some ways this is a through the looking glass case because there isn't a lot of

doubt that these guys are guilty. there was a time they were very proud of it, and they still are. they are fanatics, terrorists. the problem is the united states' conduct is also on trial because torture is not allowed under federal or international law and the defendants say they were tortured and there is a law called unclean hands, and another called shock for conscience, and if the government does not have clean hands, it can be sanctioned, so torturing defendants is generally approved of in the american system. typically, when government is conduct in a case, it will be punished in some way. sometimes that leads to dismissing charges. that will not happen here, the aces too serious. the only -- this case is too serious. the only way to sanction the court is to say you lost all authority to put them to death. but that ultimate penalty is off

the table because the government has no longer occupies the moral high ground it is supposed to occupy in the case, so that is the legal theory. and then there was a practical one. the cia, which was responsible for their treatment, does not want that evidence coming into work. we have a good idea of what happened, waterboarding, mock executions, things liker th dest because of their offenses is beside the point because those actions are not things the cia admitted in open court, even though we know it because there was independent journalism reporting on it. we all know what happened, but the cia does not want it officially acknowledged or introduced in the court, and has been asserting classified rights and all kinds of things to

withhold evidence. that poses a problem because if you are put on trial, you are entitled to relevant evidence, and of the government refuses to turn it over, that can be a problem. so that is practical problem prosecutors have. how can they proceed when evidence that they typically would have a right to is not being provided by the government? that's another problem. host:omewhat related to that is from duane in florida, plea deals for 9/11 descendants means no trial. that means no evidence and discovery thatou expose saudi arabia and cia complicity or involvement in the 9/11 attacks. guest: i don't know anything about cia complicity in the 9/11 attacks. that sounds plausible to me, but the question of whether there was a trial and discovery, there would be a trial of sorts

involving the sentencing, and the victims' families would be able to ask questions like that, did the cia hire you to attack the pentagon? seems like an unlikely event, but they could ask about that and they could ask about whatever supplies or support they had from foreign countries. there would be an opportunity for those questions to be asked. but the ca would not be the unit that provides the answers. host: cheyenne, montana, republican. caller: the 3000 people that died deserve justice, and that justice needs to be implemented. these people are still alive, living a life in prison. prisoners do not have rights. you go to prison, you don't have rights, they tell you what to eat, drink, everything like that. these people murdered 3000

americans. these democrats need to get out of our way and let american justice be done. thank you. guest: this is an issue -- this case has been handled by the professional military prosecutors and department of justice prosecutors, not handled by politicians. politicians get involved when there is a result that is bad for them, like a plea agreement that suggests someone might be lenient towards terrorists and that is where we have a political interference or intervention. in what was a quasijudicial process going on on, obey -- going on at guantanamo bay. the previous authority included a plea bargain was the only way to resolve the case. the current convening authority, career army major general made

that conclusion, some who had been working on the case or 20 years. i would not dismiss what they are doing out of hand or endorse it either. i have not seen the documents and don't know all the factors there, but i don't think you could say this was a political decision by the lawyers and parties involved in the case. these are people who know the facts very well in the united states and around the world, a life sentence without parole is not considered a lenient punishment. host: john from georgia says can 9/11 victims or their gener republic here from life on detainees and can channels be open for them to express their views, explain themselves, etc.? guest: yes and no. if they testify in court, which would have been, could happen in a trial, if irregular trial goes

forward, and is supposed to happen if some version of it ultimately ends up being adopted , yeah, they would testify, and the hearings, in theory, are available to the public. there is going to be one today. if you do not live in guantanamo bay, cuba, and if you are in the washington or baltimore area, you can go to fort need and see a closed circuit transmission of that proceeding. the defendants will not be testifying. it will be lawyers talking, but you can see the defendants sitting there. i'm going there after this show. i'm going to go and watch it from fort meade, maryland. host: and al qaeda's ideology is out in the public for people to read and learn about if they are interested in knowing what is motivating the terrorists. guest: right. i think the general radical ideology of al qaeda, and they

have been successful promoting it and radicalizing people online. that's not a secret. what personally debated these individuals, we would like to check from them, what were they thinking, why did they feel this was the kind of terrorist acting needed to commit? host: let's talk to david, nevada, democrat. caller: i have called a few times. i'm a democrat. it is hard to call myself a democrat anymore because it feels like the democrats have moved so far to the left that i don't get guys where we are compared to where we started. but the whole 9/11, the professional investigations, do we have a title of whose investigating both investigators? it seems like we get very few

details of these investigations, but why was it the cia [indiscernible] and especially about holding seven that collapsed. that was an odd thing that happened that they said on bbc network that it had collapsed. i'm curious, is there the possibility that some facts have been obfuscated? are there any federal agents involved in 9/11, like the january 6 cover-up? host: let's get a response. guest: yeah, there is a common fallacy called begging the question, which assumes facts that are not proven to them make a statement. those are all things that are not proven and not related to

what is going on now at guantanamo bay. what is going on now has to do with people who have been in custody for many years who are almost certainly guilty of the charges filed against them who typically would have been convicted and sentenced long ago, but because of the unique nature of the military commissions set up to try them and the problems involved with their cruel and inhumane treatment by the cia after they were captured, there are problems in moving ahead with the prosecution. that is what is going on there. i was in new york city on september 11, i was at ground zero on september 12, but all the speculation about it being someone other than the men who are in custody at guantanamo bay who are behind it i think is unproven. we know that these guys -- they are not in guantanamo bay by

accident. host: joe, connecticut, republican. caller: good morning. thank you for taking my call. on calling to express my complete disgust and revels in at the american judicial system. these guys are as guilty as sin. they premeditated a murder. we execute people for killing one person. in the bombing of federal building in announcer: we will take you live now to michigan where kamala harris is holding a campaign rally, here on