Fate of 9/11 Plea Deals to be Argued Next Month as Judge Delays Retirement Again

Editor's Note: This article was supported by The Pulitzer Center.

Guantanamo Naval Base, Cuba – The military judge in the Sept. 11 case will hear arguments in November on the legality of the Secretary of Defense’s decision to withdraw from plea deals reached with three of the 9/11 defendants this past summer, he said Friday.

Air Force Col. Matthew McCall told the parties to prepare to argue on the first day of the next hearing – Nov. 4, the day before the 2024 presidential election. 

The move signals that McCall himself will likely rule on the dispute that could change the course of the biggest case in U.S. history – either setting it on a path towards resolution culminating in a sentencing hearing or back to the continued uncertainty of a still-unscheduled trial before an unknown judge.

The accused mastermind of the 9/11 plot, Khalid Shaikh Mohammad, and two co-defendants reached plea agreements with the court’s overseer or “convening authority,” Susan Escallier, on July 31. Lawyers for Mohammad, Walid bin Attash and Mustafa al Hawsawi claim that Sec. Lloyd Austin’s attempt to revoke the deals two days later was unlawful and that McCall should enforce the still-valid contracts.

The prosecution team led by Clay Trivett labored for more than two years to negotiate the plea deals with the defendants. Nevertheless, prosecutors claim in written pleadings that Austin had the wide discretion as the military court’s “superior convening authority” to withdraw from the pretrial agreements and reserve that responsibility for himself.

Previously, McCall said that he might rule on the disputed deals based on the written briefs filed by the defense and prosecution teams. However, on Friday he said that he wanted to hear arguments on the competing positions at the start of the November hearing before resuming witness testimony in the ongoing suppression litigation involving Ammar al Baluchi, the fourth and remaining defendant, who did not reach a plea deal with Escallier. (McCall severed a fifth defendant, Ramzi bin al Shibh, from the case last year after determining that he was not mentally competent to assist in his own defense.)

McCall had planned to use this session, initially planned for five weeks, to wrap up witness testimony in al Baluchi’s effort to suppress the confession he gave to FBI agents in early 2007 after arriving on Guantanamo Bay. But Hurricane Milton interceded to prevent the testimony of the government’s last witness. Dr. Michael Welner, a forensic psychiatrist, was expected to support the government’s claim that the statements made by the defendants to FBI agents on Guantanamo, after their arrival from CIA black sites, were voluntary.

Welner was set to testify from the court’s remote hearing room in Northern Virginia at the start of this week but on Monday flew to his home in South Florida to prepare for the storm.

Welner is now scheduled to testify in November, a postponement that kicks oral arguments on al Baluchi’s suppression case to 2025 – and the two-week hearing scheduled to commence Jan. 20. On Friday, McCall announced that he had delayed his retirement – planned for the end of this year – an additional six months to position himself to rule on the suppression dispute. This is the third time McCall – the fourth judge to preside over pretrial hearings – has delayed his retirement to continue his stewardship of the 12-year-old case, which he joined in September 2021. 

In the first two weeks of this session, McCall heard testimony from competing defense and prosecution experts on whether al Baluchi suffered a traumatic brain injury during his violent interrogations at a CIA black site where trainees practiced “walling” him for up to two hours at a time. The judge cancelled the third week, as well as the fifth week, with Welner originally planned to occupy week four and unavailable before or after. He is the last of about 30 prosecution or defense witnesses agreed to by the government for the suppression hearing, which began in September 2019.

On Friday, James Connell, the lead lawyer for al Baluchi, repeated a complaint he has made at prior hearings – that the prosecution team has used Welner, a witness added late to its roster, to delay resolution of the suppression case. Connell told McCall that Welner has been unavailable over parts of the past several hearings despite being retained by the government at rate of $600 per hour, often for watching proceedings from the remote hearing room where he will eventually testify. 

"This could easily come up again in November," Connell said. 

The teams for Mohammad, bin Attash and al Hawsawi have refused to participate in the latest rounds of witness testimony on the grounds that their plea deals remain valid. Their suppression cases could move to a different track if McCall decides that Austin acted lawfully and that the defendants must rejoin the pretrial litigation. The judge has said the teams will be able to recall witnesses who have testified in the months following signing of the plea deals.

The government has the burden to establish that the defendants voluntarily gave statements to FBI agents on Guantanamo Bay in January 2007. The defense teams claim that their clients' confessions were rendered involuntary by the CIA's earlier torture and that the FBI benefited from torture-derived information when building their criminal cases. The defense teams claim that they should be able to broaden their efforts to have the statements suppressed by calling dozens of additional witnesses – including many covert CIA officers – if McCall finds that the government has met its initial burden of proving the Guantanamo statements were voluntary.

The fourth and what proved to be the final week of this hearing was largely scuttled due to Hurricane Milton. On Friday, however, McCall did hear oral arguments by news media to unseal the three plea agreements.

David Schulz, a lawyer for the consortium, argued by teleconference from a location in Virginia that the public has the right to view at least some parts of the plea deals while the judge considers motions relevant to their enforceability. Lawyers from the prosecution and three defense teams urged McCall to keep the agreements sealed, at least for now. They noted that if the judge determines the deals are valid and hears the entry of pleas, his colloquy with the defendants will place significant parts of the agreements in public proceedings.

“The public is not going to be in the dark forever,” Matthew Engle, the lead lawyer for bin Attash, said Friday afternoon.

The agreements, which removed the death penalty as a possible sentence, were met with significant opposition by politicians and some groups of victim family members. 

Earlier this session, Lawdragon and the New York Times reported that the plea agreements contained a provision that removed the death penalty as a sentencing option if the government withdrew from them without proper cause. The provision was intended, at least in part, as a bulwark against fears a second Trump administration would tank the deals. Lawyers said that even if McCall decided Austin acted within his authority, the death penalty may be permanently off the table toward Mohammad and al Hawsawi; bin Attash's plea agreement was not known to contain that provision.

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.