Judge Denies Accused Mastermind’s Attempt to Plead Guilty To 9/11 Attacks

A recent photo of Khalid Shaikh Mohammad courtesy of his defense team.

Guantanamo Naval Base, Cuba – The lead lawyer for Khalid Shaikh Mohammad on Wednesday urged the military judge on the Sept. 11 case to accept his client's guilty plea to planning the worst-ever attacks on American soil – over the opposition of the Secretary of Defense, who in an unprecedented move last week overrode the deals negotiated with defense lawyers and agreed to by the case overseer he appointed.

The pretrial agreement signed on July 31 remains in effect under a “straightforward” reading of military commission rules and “basic contract law,” Mohammad's lawyer, Gary Sowards, told Air Force Col. Matthew McCall.

“We can proceed to enter his plea and resolve this case," Sowards said.

Sowards claimed that Sec. Lloyd Austin lacked the authority to revoke the deals. He said the move came too late, as his client had already begun to act in reliance on the agreement – signing them, agreeing to not participate in the ongoing suppression hearing and preparing to answer questions sent by victim family members about the planning of 9/11.

Sowards' arguments came amidst the final stretch of a month-long hearing – capping an astonishing week in which the case witnessed the two most important developments in its 12-year history. Late last Wednesday, the case's overseer, or "convening authority," Susan Escallier, reached plea agreements with Mohammad and two of his accused co-conspirators, Walid bin Attash and Mustafa al Hawsawi. Friday evening, her superior, Austin, unilaterally withdrew from the agreements.

Austin withdrew from the deals amidst intense opposition by U.S. Senators and Representatives, as well as by some groups of victim family members, who were outraged that the plea agreements removed the death penalty as a sentencing option. The agreements, which include lengthy stipulations that detail each defendant's role in the attacks, are currently under seal.

Escallier, a retired Brigadier General with more than 30 years of experience as an Army lawyer, has so far declined comment. 

“We are prepared to remain on the island – to not leave – so we can resolve this very important issue,” Sowards said told McCall. “We should not ratify the chaos.”

Though Sowards expressed willingness to stay on the U.S. Naval Base past the planned Saturday departure, McCall denied the request in short order.

Saying he did not want to make “a rash decision,” McCall said he would treat the Mohammad team's position – that the plea deal should be enforced and was unlawfully withdrawn – as a motion to be heard in oral argument following the normal briefing cycle at the session scheduled to start Sept. 16. The argument was initially made in a pleading filed on Tuesday.

“We will address it at that point,” McCall said. “Hopefully.”

Lawyers for bin Attash and al Hawsawi did not state their position to McCall on whether he should enforce the deals this week. Walter Ruiz, the lead lawyer for al Hawsawi, told McCall that the "unlawful" move by Austin pointed to a "corrupt and rigged" system. 

Austin’s decision to revoke the deals shocked a court system that was still grappling with the emotional and procedural implications of reaching a resolution to the biggest case in U.S. history – for the deaths of the 2,976 people named in the charge sheet. The reversal of plea agreements that had seemed a necessary conclusion to some involved in the proceedings split politicians as well as victim family members, with one group calling the developments “emotional whiplash,” and others offering praise.

Gary Sowards' arguments came amidst the final stretch of a month-long hearing – capping an astonishing week in which the case witnessed the two most important developments in its 12-year history.

Over the weekend, the court contingent at Guantanamo was awash in discussion of Austin's actions, and whether he had the right to take them. Lawyers said that, as a general rule, a Secretary of Defense could assume control of a military commission from a subordinate official to whom he had delegated the role. However, they also noted unusual features of Austin’s memorandum to Escallier on Aug. 2. First, he withdrew her authority to make plea agreements but kept her as convening authority for other matters – meaning Austin and Escallier presumably share oversight of the case. Second was the timing of his decision: Austin appointed himself convening authority for the case after plea agreements already had been reached.

In press meetings this week, James Connell, the lead lawyer for the defendant who did not reach a plea deal, Ammar al Baluchi, said his team had not yet found a similar set of facts in other military cases. The withdrawal of plea deals was another instance of “unlawful influence” in the case, he said. Earlier this year, the Baluchi team cited unlawful influence in a motion to dismiss the case based on congressional opposition to proposed plea deals that fell apart last summer. That motion is pending before McCall.

In court Wednesday, Sowards said defense teams would justifiably pursue additional unlawful influence claims and seek discovery to determine how Austin made his decision. That litigation could last years, Sowards noted – while saying briefing on his team’s view of the enforceability of the pretrial agreement could be completed within 24 hours. He told McCall that the judge should begin hearing his client's plea later this week.

Austin lacked the authority to revoke the deals under the Department of Defense’s own rules for military commissions, Sowards told the court. Those rules state that a convening authority can only withdraw from a pretrial agreement if a defendant has not yet started to fulfill its terms, or if there appeared to be disagreements over provisions, among other factors.

Sowards told McCall that none of those conditions existed and that “no credible, plausible legal theory” could contend otherwise. Moreover, he said, Mohammad had begun fulfilling his part of the agreement by signing the joint stipulation of fact admitting to the charges and by waiving his participation in the ongoing suppression hearing. Under the signed deals, the defendants agreed to answer questions from victim family members about the 9/11 attacks. Sowards said his team already had begun receiving questions “which only [Mohammad] can answer” for the families.

“And they will get satisfaction,” Sowards said. 

He also referred to brief comments Austin made on Tuesday about his decision to revoke the deals. When taking questions from reporters at an event in Annapolis, Md., Austin said that he “believed that the families of the victims, our service members, and the American public deserve the opportunity to see” trials carried out.

Austin’s decision could “tragically” lead to the opposite result, Sowards said – pushing the case back into “limbo” with years of additional pretrial litigation, instead of moving it towards a lengthy sentencing trial in which the government would have “carte blanche” to present evidence about the 9/11 attacks.

The lead prosecutor on the case, Clay Trivett, asked the court for additional time to present the position of the U.S. government, given how quickly the developments unfolded.

Though Trivett prevailed in forestalling the entry of pleas, he told McCall that the government supported pausing the entire case for the time being as litigation over the withdrawn plea agreements moves forward.

“We think this is in the best interests of the case – to freeze everything,” Trivett said.

Moving on from the mounting legal issues over the rejected pleas, McCall heard scheduled witness testimony in al Baluchi's case. His team is continuing its efforts to convince McCall to suppress al Baluchi’s confessions made to FBI agents on Guantanamo Bay in January 2007, about four months after the defendants arrived from CIA black sites.

McCall acknowledged that the three other teams would not participate in the suppression hearing. He ordered each team to have one lawyer in court to watch the proceedings and said he would allow them to later question any upcoming witnesses in the event they resumed their own motions to suppress. After a morning recess, Connell began cross-examining Robert McFadden, a former Naval investigator who worked on the 9/11 and other terrorism investigations. McFadden, a prosecution witness, began his testimony at the last hearing. 

The government has the burden of establishing the voluntariness of the defendants’ statements to the FBI on Guantanamo Bay in early 2007, which the prosecution team has acknowledged are “critical” to its case.

McCall, the fourth judge to preside over pretrial hearings, assumed control over the case in September 2021 – 20 years after the 9/11 attacks. He put the suppression hearings on hold after the parties began plea negotiations in March 2022, then resumed them last September after the Biden administration essentially turned aside any deal by declining to provide certain guarantees related to conditions of confinement. 

McCall has since kept an intense pace in hopes of finishing witness testimony during the planned five-week hearing starting next month. He intended to decide whether to suppress the so-called "clean" statements made to the FBI on Guantanamo prior to his planned retirement at the end of the year. McCall already has delayed his retirement twice to guide the suppression litigation forward. The suppression hearings began in September 2019, before the case's third judge, until the pandemic delayed proceedings for more than 500 days. A trial date is not set for the case.

McCall told the parties on Wednesday that he did not want to let litigation over the revoked deals drag on without resolution but that he did not feel compelled to rush, particularly as the prosecution was receiving initial discovery requests related to Austin's decision.

“I don’t feel any of that pressure,” McCall said. “I feel pressure to make the correct decision.”

As expected at the start of court Thursday, lawyers for the teams who reached plea deals told McCall that they would not be participating because they had valid pretrial agreements resolving their cases. Suzanne Lachelier, one of al Hawsawi’s civilian lawyers, informed McCall lateThursday that the team had filed a motion that day requesting the judge to hear al Hawsawi’s guilty plea during the first week of the hearing starting Sept. 16. She said that al Hawsawi was waiving oral arguments on the motion and that the judge could decide the matter on written briefs.

McCall will have to balance litigation over the revoked deals with the remaining witness testimony in al Baluchi’s suppression case. On Thursday, the prosecution completed its open examination of the first psychiatrist to treat the detainees on Guantanamo Bay after their arrival from the CIA black sites. That witness, who testified from the facility’s remote hearing room by the unique functional identifier “WK5I,” will testify during a closed session on Friday and face cross-examination by al Baluchi's team during the September-October hearing.

The prosecution is calling WK5I and a forensic psychiatrist, Dr. Michael Welner – who is also scheduled to testify at the next hearing – to undercut defense claims that al Baluchi was suffering the effects of PTSD when he gave his statements to the FBI on Guantanamo Bay in January 2007. After prosecutors told McCall at the end of court Thursday that they also intended to call a second medical expert at the next session, Connell accused them of trying to “slow roll” the conclusion of the suppression case.

McCall told the parties to confer, and that he would hold a scheduling conference on Friday. He said that his plans to hold oral arguments on the suppression dispute during the year's final hearing in November was always “aspirational” – and that he was willing to delay his retirement a third time. He said he did not want his retirement plans to play any role in which witnesses he deems necessary to make a ruling.

“I still have not applied for any jobs,” McCall said.  

Stephan Gerhardt, one of the victim family members who attended this week, told reporters on Friday that he also plans to attend the first week of the September hearing in hopes that McCall will deal with the disputed deals quickly. Gerhardt’s younger brother Ralph was one of more than 650 Cantor Fitzgerald employees – including Ralph’s girlfriend, Linda Luzzicone – killed in the destruction of the World Trade Center’s North Tower.

Gerhardt said he believed the death penalty was appropriate for the mass murder of innocent people, but that he supported the plea agreements because they would result in a sentencing trial at which the defendants would explain their actions and answer questions from family members.

“That’s what the PTAs [pretrial agreements] offer us,” said Gerhardt, who had attended two prior hearings, most recently in 2018.

Gerhardt, who lives in the Washington, D.C. area, was among many victim family members who received a letter from the prosecution team explaining the plea deals on July 31, the day Escallier signed the agreements. He was still at work on Friday evening when he heard the news of Austin’s revocation, just about 12 hours before his scheduled flight to Guantanamo the next day.

“My immediate thought was, ‘It’s going to be an interesting trip,’” Gerhardt said.

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