Clayton G. Trivett Jr., a trial attorney and a lieutenant commander in the Navy Reserve, started prosecuting cases at Guantánamo Bay as a Navy lieutenant a few years after Congress established military commissions on the island. He was one of eight prosecutors assigned to the U.S. government’s case against Khalid Shaikh Mohammed and four other defendants charged with 2,976 counts of murder for their involvement in the attacks of September 11. During his tenure, Trivett has worked under two chief prosecutors, one of whom finally retired in February after fifteen years on the job. Trivett has appeared before four different presiding judges and has participated in or helped prepare briefs for scores of pre-trial hearings since 2012, when the defendants, first charged in 2008, were finally arraigned. 

Now a civilian, Trivett is the managing trial counselor—and one of only two of the original eight prosecutors still on the case. As lead prosecutor, he successfully negotiated plea agreements with Mohammed and two of his accomplices, Walid bin Attash and Mustafa al-Hawsawi. On July 31, it was announced that the three defendants had agreed to plead guilty to every count and, in exchange for waiving their right to appeal their conviction, the U.S. government agreed not to seek the death penalty. (A fourth defendant was found mentally unfit to assist his defense; a fifth defendant declined to plead guilty.) 

“The decision to enter into a pre-trial agreement after 12 years of pre-trial litigation was not reached lightly,” Trivett and other prosecutors wrote in a letter to the families of the September 11 victims. “However it is our collective, reasoned, and good-faith judgment that this resolution is the best path to finality and justice in this case.”

That should have been the end of the story, and an opportunity for the families and other loved ones of 9/11 victims to finally put this painful and horrific experience behind them. But as news of the deal spread over the next three days, critics, including a number of surviving family members, quickly voiced their opposition to the government’s decision to forgo the death penalty. Senate minority leader Mitch McConnell called the plea agreement “a revolting abdication of the government’s responsibility to defend America and provide justice.” The president of an advocacy group called 9/11 Justice described a “sense of betrayal” among members of that organization. 

Cowed by this backlash, Defense Secretary Lloyd J. Austin III rescinded the deal, overruling the decision of the senior Department of Defense official he personally selected to oversee the military commission at Guantánamo. This was a grievous mistake. Carefully negotiated by the prosecution and the defense for more than two years, this plea deal was the only remaining chance for the government to resolve the case. Because the three defendants were tortured during interrogations in CIA-run black sites, it is likely that any evidence obtained there would be thrown out in a trial. And any conviction would almost certainly be overturned on appeal. 

While neither President Obama nor President Biden was able to fulfill pledges to close Guantánamo, both of their administrations were able to decrease the number of detainees held there from 245 in 2009 to 30 today. Of those, seven are awaiting trial, and sixteen have been recommended for transfer. This is encouraging, a hopeful sign that the era of Guantánamo might soon be coming to an end. 

But, by revoking the plea deal with the remaining 9/11 perpetrators, the defense secretary has ensured that the case against them is hardly any closer to resolution than when Clayton G. Trivett Jr. first participated in pre-trial hearings more than a decade ago.