Military Judge Says Plea Deals With Three 9/11 Defendants Can Proceed, Reversing SECDEF Austin

Last updated on November 7th, 2024 at 04:59 pm

A military judge has ruled a set of plea agreements for three 9/11 defendants can move ahead, despite an effort by Secretary of Defense Lloyd Austin to revoke the agreements.

Susan Escallier, the head of the Convening Authority for Military Commissions which oversees the 9/11 trials, approved pretrial agreements (PTAs) with Khalid Shaikh (Sheikh) Mohammad, Walid Muhammad Salih Mubarak Bin’ Attash, and Mustafa Ahmed Adam al Hawsawi in July.

The Pentagon announced the plea agreements—which would spare the three defendants from receiving the death penalty—in a July 31 announcement.

Prosecutors have presented Muhammed as the mastermind behind the Sept. 11, 2001 hijackings; an attack that killed around 3,000 people and launched the Global War on Terror-era of U.S. foreign policy.

Muhammed and his co-defendants stand charged with conspiracy; attacking civilians; intentionally causing serious bodily injury; murder in violation of the law of war; hijacking or hazarding a vessel or aircraft; and terrorism.

Austin issued a new memo on Aug. 2, two days after the Pentagon announcement, in which he ordered the 9/11 plea deals be revoked and reserved for himself the authority to enter into any further pretrial agreements with the 9/11 defendants.

U.S. Air Force Col. Matthew McCall, the judge overseeing the case from a military courtroom in Guantanamo Bay, Cuba, reversed yet again on Nov. 6.

In a 29-page ruling, McCall concluded Austin didn’t have a clear authority to withdraw the plea agreement when he issued the Aug. 2 memo.

“Withdrawal authority belongs to the convening authority alone and is not subject to a limitation as the Secretary may prescribe. The Secretary of Defense did not purport to make himself the Convening Authority for this case,” McCall wrote.

McCall further concluded that even if Austin had an authority to approve pretrial agreements in the case, the three defendants had already begun to perform the conditions of the pretrial agreement by the time had intervened to stop the plea deals.

“If an accused begins performance of the terms of a PTA, the convening authority loses the right to withdraw from the deal,” the military judge wrote.

It remains to be seen if prosecuting authorities will attempt to appeal McCall’s ruling.

Austin’s office hasn’t responded to a request for comment at this time.

The defense team also hasn’t responded to a request for comment.

The efforts to prosecute the three defendants have seen years of delays.

While the families of the 9/11 victims may seek a trial with a possibility of a death sentence, the paces could face appeals over the degree to which evidence against the defendants was obtained through torture.

U.S. military prosecutors originally brought charges against six defendants in 208, but then-Convening Authority Susan Crawford concluded the United States couldn’t proceed to try defendant Mohammed al-Qahtani because his treatment in U.S. custody amounted to torture. The U.S. government released al-Qahtani and returned him to his home country of Saudi Arabia in March of 2022.

Pakistani national Ammar al-Baluchi and Yemeni national Ramzi bin al-Shibh were also among the original six defendants. They’re cases have been delayed as defense lawyers have argued they’re not mentally fit to stand trial after being broken by torture.

Mohammad, Attash, and Hawsawi have also raised torture claims during their years in U.S. custody.