In Shock Move, Defense Secretary Kills 9/11 Plea Deals

Photo courtesy of the Department of Defense.

Editor's Note: This story was supported by the Pulitzer Center.

Guantanamo Naval Base, Cuba – In a stunning reversal in the Sept. 11 case, the Secretary of Defense has halted plans by three 9/11 defendants to plead guilty to their roles in the attacks as part of deals to avoid death sentences.

Secretary Lloyd Austin did so in a short memorandum to the convening authority of the military commissions, Susan Escallier, who signed off on the deals with Khalid Shaikh Mohammad and two of his accused co-conspirators on Wednesday.

Austin told Escallier that he had withdrawn her “authority” to enter into the pretrial agreements and was now reserving that decision for himself, as first reported late Friday by the New York Times.  

Austin said he was making the move “in light of the significance of the decision.”

The blockbuster news of plea deals earlier this week signaled a potential end to the biggest case in U.S. history, with Mohammad, Walid bin Attash and Mustafa al Hawsawi agreeing to admit to their roles in the attacks. A fourth defendant, Ammar al Baluchi, was continuing to negotiate with U.S. officials seeking better care for health conditions caused by his past CIA torture.

The Guantanamo commissions are military courts, part of the Department of Defense of which Austin is chief. The convening authority serves as the court’s overseer, making decisions on resourcing as well as sentences and plea agreements. Over the years, the role of convening authority has been filled by a rotating cast of Pentagon officials. Austin appointed Escallier, a retired Brigadier General who served as a lawyer in the Army for more than 30 years, to the position last August. She declined to comment through the spokesperson for the commissions.

In his memorandum, Austin wrote that responsibility for a decision on plea deals in the case “should rest with me as the superior convening authority under the Military Commissions Act of 2009.” That act reformed the 2006 measure that established the court.

That same legislation bars “unlawful influence” in the proceedings, a similar concept to “unlawful command influence” found in the courts-martial system. Since the May 2012 arraignment, defense lawyers have alleged unlawful influence by government officials on numerous occasions.

Defense lawyers made such an allegation after the Biden administration declined to sign off on proposed plea deals last September – following weeks of intense opposition by senior political figures. This week’s news of a successful attempt at plea deals was met with similar ire.

“This decision is obviously another political intrusion into the military commissions,” James Connell, the lead lawyer for al Baluchi, said Friday. “It lays bare the overtly political nature of the case.”

One of the prior convening authorities, Harvey Rishikof, failed to secure plea agreements after reaching out to defense teams in the middle of 2017. Defense teams claimed that Rishikof was fired in 2018 for pursuing plea talks; they sought dismissal of the entire case at that time for unlawful influence. As part of that ligation, lawyers learned that President Trump’s attorney general, Jeff Sessions, made his opposition to plea deals in the Sept.11 case known to Secretary of Defense James Mattis.

The second judge on the case, Marine Col. Keith Parrella, rejected unlawful influence claims in a January 2019 ruling. He cited competing evidence from prosecutors that the termination resulted from unrelated management issues.

The current judge, Air Force Col. Matthew McCall, was planning to hear the entry of pleas by the middle of next week, starting with Mohammad. Next week’s schedule – the fourth week of the case’s 51st pretrial hearing – is now uncertain.

The disbelief that staggered the court contingent on the U.S. Naval Base Friday night became firmly entrenched by Saturday morning as the parties began to grapple with the way forward. The lead prosecutor on the case, Clay Trivett, declined to comment; the chief prosecutor of the commissions, Navy Rear Adm. Aaron Rugh, did not respond to written inquiries.

Defense lawyers also declined to comment on what legal responses they might fashion to the plea deal withdrawal.

Organizations representing family members of the victims took competing views on the development. The group 9/11 Families United praised Austin “for doing the right thing and listening to the voices of the 9/11 community.” September 11th Families for Peaceful Tomorrows, which supports plea deals, called the move a betrayal to family members and “emotional whiplash.”

Republican Senators Mitch McConnell and Tom Cotton released a prepared statement that said they were “glad that Secretary Austin came to his senses.” After news of the deals surfaced Wednesday, Cotton introduced legislation that would prohibit plea deals in the case and require trials that allow for the death penalty as a sentencing option.

“The Justice for 9/11 Act is introduced, and if the Administration ever changes course, we stand ready to overturn any future cowardly plea deals with the murderous mastermind of that tragic day,” the Senators said in their Saturday statement.

Anthony Romero, the executive director of the American Civil Liberties Union, criticized Austin for “recklessly setting aside the judgment” of both the prosecution team and the convening authority.

“This rash act also violates the law, and we will challenge it in court,” Romero said.

The ACLU has litigated transparency issues in the 9/11 case as an outside organization, and it also has funded pro bono assistance for the Mohammad team. The group did not specify how it would participate in a challenge to the withdrawals.  

Before Saturday's reversal, Judge McCall had intended to move forward with witness testimony in the suppression motion still pending for al Baluchi. Another witness was scheduled to testify Monday, though the al Baluchi team and the prosecution had been considering whether to postpone that testimony to give the judge and his team more time to prepare for the entry of pleas.

It was unclear Saturday if the other three defense teams would resume their participation in the suppression litigation. Ron Flesvig, the spokesperson for the commissions, said that court was scheduled to start on Tuesday.

Before McCall are suppression motions by defense teams that claim the past torture of the defendants by the CIA renders their subsequent confessions to the FBI involuntary. Those statements were given to federal agents on Guantanamo Bay in January 2007, about four months after the detainees arrived from the CIA-run black sites.

The judge has also said that he will factor into his decision the limitations placed on the teams in investigating and preparing their suppression cases. Most notably, the defense teams have been blocked from independently contacting CIA witnesses who may have knowledge of the abuse of their clients at CIA black sites.

Lawyers have said that McCall is not limited to suppressing the statements if he decides a sanction is warranted against the government – he also could remove the death penalty as a sentencing option.

On Saturday, Connell said that McCall has also yet to rule on the existing motion for dismissal of the case for unlawful influence. The al Baluchi team filed that motion earlier this year after several members of Congress claimed success in thwarting the prior attempt at plea deals.

"Several motions before the military commission include removal of the death penalty as a potential remedy," Connell said. "Those motions include the challenge to the restrictions on defense investigation as well as the last round of political interference in plea negotiations."

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case.  His book on the 9/11 case is scheduled for publication early next year.