Sept. 11 Judge Upholds Plea Deals, Overrules Pentagon Reversal

Sketch of the Guantanamo Bay courtroom by Janet Hamlin.

Editor's Note: This article was supported by The Pulitzer Center. Originally published on Nov. 6 and updated Nov. 9. 

Guantanamo Naval Base, Cuba – The military judge in the Sept. 11 case ruled on Wednesday that the Secretary of Defense did not have the legal authority to withdraw from plea agreements reached with three of the defendants by the official he appointed to oversee the court. The prosecution team has now said it will challenge that decision.

In his 29-page ruling, Air Force Col. Matthew McCall wrote that the three plea deals remain “valid and enforceable” and that he would schedule a hearing for a future date to officially enter the guilty pleas.

McCall informed the parties in court on Thursday that he wanted to hear "one or more" of the guilty pleas during this three-week session. The judge signaled that the process could start as early as late in the coming week but would more likely unfold during the final week beginning Nov. 18.

On Friday evening, however, the government notified the judge and victim family members that it will challenge McCall's ruling to the U.S. Court of Military Commission Review. The prosecution indicated that it is asking McCall to stay the plea deal proceedings and will put its position on the record in a rare Sunday session being held this weekend.

The news came shortly after victim family members who travelled for the hearing met with reporters and expressed their support for McCall’s ruling in hopes it would move the case towards a resolution.  

McCall's ruling and the government's response were the latest twists in the highest-profile dispute to consume the fraught military commission, which dates to the May 2012 arraignment. Susan Escallier, appointed to the role of convening authority in August 2023, signed plea deals with the accused plot mastermind, Khalid Shaik Mohammad, and two co-defendants on July 31.

In the agreements, Mohammad, Walid bin Attash and Mustafa al Hawsawi agreed to plead guilty to all charges related to their alleged roles in the 9/11 attacks in exchange for the death penalty being removed as a sentencing option. On Aug. 2, amidst intense political opposition, Sec. of Defense Lloyd Austin issued a memorandum to Escallier stating that he was withdrawing from the deals and reserving the authority to himself to reach any such agreements.

The prosecution claimed in written pleadings Austin had broad authority to act as he did as the "superior convening authority" who appointed Escallier to oversee the military commissions, including the 9/11 case – a claim that McCall rejected at several points throughout his ruling.

“The Prosecution did not cite, and the Commission did not find, any source of law authorizing the Secretary of Defense to ‘withdraw’ Ms. Escallier’s authority to enter into a PTA [pretrial agreement],” McCall ruled.

In addition, McCall found that the timing of Austin's decision was "fatal" as reserving any such authority for himself "would only be effective prospectively, not retroactively."

The judge sided with the three defense teams, finding that commission rules that dictate when a party can withdraw from a pretrial agreement – including, for example, a defendant failing to perform under an agreement’s terms – did not apply to the current dispute. He ruled the three defendants had begun “performance” under the deals by signing stipulations of fact confessing to their crimes and by declining to participate in the ongoing suppression hearing for defendant Ammar al Baluchi, who had not signed a plea deal.

Austin’s Aug. 2 memo purported to take back the responsibility to enter into plea agreements because of the “significance of the decision.” However, McCall said that an agreement’s significance “is not one of the reasons the governing legal sources permit the Convening Authority to withdraw.”

McCall said that concluding otherwise would give a Secretary of Defense “absolute veto power” over any act he disagrees with, which would be "wholly inconsistent with the delegation of independence” that Austin gave Escallier when appointing her.

McCall’s ruling came on the day the legal teams, judicial staff, victim family members, NGO observers and media arrived on Guantanamo Bay to continue pretrial hearings in the case. The judge had planned to hear arguments on the disputed plea deals on Monday, however, the prior weekend’s travel to the U.S. Naval Base was postponed by storms threatening the Caribbean.

At the start of the travel week, McCall informed the parties that he did not, in fact, need to hear oral arguments on the plea deals at the hearing, which began Thursday morning. Instead, the government moved forward with its final witness, Dr. Michael Welner, in the suppression litigation for al Baluchi. His team contends that the confessions al Baluch gave to FBI agents on Guantanamo Bay in January 2007 should be suppressed due to his past torture by the CIA and the FBI’s role in the CIA interrogation program. The government has called Welner to support its contention that al Baluchi provided his statements voluntarily. 

Alka Pradhan, a lawyer for al Baluchi, said that her client remains in negotiations with the government over a possible plea deal. His team has previously said that al Baluchi wants guarantees related to his rehabilitation for the past torture.

Pradhan described McCall’s ruling on the plea agreements as “extremely well-reasoned.”

“This is a ruling that cannot easily be disregarded by anyone who knows military or contract law,” Pradhan said.

Navy Rear Admr. Aaron Rugh, the chief prosecutor of the military commissions, said in an initial request for comment that the government was "considering next steps.”

McCall said on Thursday that he wanted to start hearing the entry of guilty pleas after Welner's testimony. The courtroom trial team led by Clay Trivett remained silent after McCall stated his intent to move forward with the pleas.

By Friday evening, however, the government had decided to challenge McCall's ruling to the Court of Military Commission Review, decisions of which are reviewed by the U.S. Court of Appeals for the D.C. Circuit and then the U.S. Supreme Court. Lawyers said Friday night that the prosecution would likely pursue an emergency stay from the appellate court to halt proceedings related to the plea deals if McCall himself does not grant a stay.

The prosecution was expected to make the request in court on Sunday afternoon. McCall already had scheduled a Sunday session and planned to have court on Veteran's Day to make up for time lost in the first week. 

In September, Lawdragon reported that the plea agreements for Mohammad and al Hawsawi contained provisions that removed the death penalty from the case in the event the government withdrew from the agreements. Sources said that the penalty provision should render the case non-capital, even if Austin was found to have acted lawfully.

The penalty clause was negotiated in the event that a future Trump administration tried to kill the deals, individuals familiar with the negotiations 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.