Judge Agrees to Delay 9/11 Guilty Pleas, Sets Early January Hearing

Sketch of Khalid Shaikh Mohammad and members of his defense team by Janet Hamlin.

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

Guantanamo Naval Base, Cuba – The prosecution team in the Sept. 11 case on Sunday won at least a temporary victory in forestalling entry of guilty pleas by the accused mastermind of the attacks and two of his accused co-conspirators that would remove the death penalty as a sentence in return for a conclusion to the long-running proceeding.

But the judge, Air Force Col. Matthew McCall, said it was "not reasonable to indefinitely delay" the pleas as the government appeals his ruling that the plea agreements must be enforced. He ordered the defense teams and the prosecution to find available time to hold a plea hearing before Jan. 20, the day of President-elect Donald Trump's inauguration and the beginning of the next scheduled session. 

McCall told the parties he wanted to begin hearing pleas in late December or early January, adding that he was ready to work Christmas week if necessary. 

“My wife may not be very happy with me, but I am willing to do it,” the judge said. He later set Jan. 6 as the tentative start date for the plea hearing after receiving input from the legal teams. 

The unusual Sunday session followed a dizzying turn of events that began unfolding during the summer, when Sec. of Defense Lloyd Austin notified the court's convening authority, Susan Escallier, that he was withdrawing from the agreements she signed as his appointee on July 31 with Khalid Shaikh Mohammad and two co-defendants.

As this session commenced, McCall rejected Austin's attempted withdrawal, finding he had no valid legal basis to terminate the plea deals. McCall ruled that the agreements remained in effect and signaled in court on Nov. 7 that at least one defendant, starting with Mohammad, could enter his plea during this session’s third week.

On Sunday, however, McCall granted an oral motion made by the lead prosecutor, Clay Trivett, to postpone the entry of guilty pleas so the government can appeal the ruling to the U.S. Court of Military Commission Review.

McCall granted the government's request after lawyers for Mohammad, Walid bin Attash and Mustafa al Hawsawi urged him to stick with his plan to begin hearing pleas during this session. On Friday night, the prosecution notified the parties and victim family members that it planned to challenge his ruling, after remaining silent on the issue during two days of court last week.

Gary Sowards, the lead lawyer for Mohammad, referred to the Friday notice as the second of “the Friday night specials” by Austin to deprive victim family members and the American public of “finality and justice.” It was on Friday night, Aug. 2, that Austin sent his memo to Escallier purporting to withdraw from the three agreements she signed just two days earlier. Absent that attempted revocation by Austin, McCall could have heard one or more of the guilty pleas the week of Aug. 6.

McCall’s ruling does not fall into the categories of decisions by commission judges, such as a dismissal of charges or exclusion of evidence, that are subject to interlocutory appeals. Sowards said that the prosecution’s planned pursuit of a writ of mandamus to the appellate court did not have a likelihood of success, given that McCall had repeatedly determined in his ruling that the government’s pleadings had provided “no authority” to support its claim that Austin acted lawfully. He urged McCall to avoid the uncertainty that would accompany the change in administrations and Escallier’s position as convening authority with new Pentagon leadership.

Sowards also referred to a provision of his client’s plea agreement that removes the death penalty as a possible sentence if the government were to withdraw from the deal. Even if the government prevails in its appellate challenge, Sowards said, “they will have won the right to go back to square one and litigate this as non-capital case.”

The plea agreement for al Hawsawi contains a similar penalty provision. Matthew Engle, the lead lawyer for bin Attash, told McCall on Sunday that his client’s agreement contains a provision that removes the death penalty in the event of a “breach” by the government. He said that Austin’s actions have the effect of “de-deathing” bin Attash's case, as well.

Al Hawswai’s lead lawyer, Walter Ruiz, told McCall that his team was adopting “the totality of the arguments” of his colleagues.

“Your Honor should stand by his ruling and move on with the due business of the court,” Ruiz said.

In siding with the government for the requested delay, McCall noted that he had not yet formally scheduled pleas for the week of Nov. 18 because he and the parties have to work out a number of questions related to the scripted colloquies he must have with each defendant when hearing their pleas of guilt. The judge said that he wanted the teams to continue this preparation and would set new deadlines for those filings once the defense teams and the government agree on a week for the entry of pleas. He then cancelled this session’s third week.

Trivett told McCall on Sunday that his team would file its challenge to the Court of Military Commission Review by the end of next week. Appeals from that court are heard by the U.S. Court of Appeals for the D.C. Circuit and then the U.S. Supreme Court.

The fourth remaining defendant, Ammar al Baluchi, did not reach a plea agreement with the government, though his lawyers have said that negotiations are continuing. Also on Sunday, McCall heard testimony from the final witness in al Baluchi’s suppression case, Dr. Michael Welner, a forensic psychiatrist testifying as a government expert. Welner continued his testimony on Monday.

On Tuesday morning, McCall told the parties that he intended to hear Mohammad's guilty plea the week of Jan. 6, with the pleas for bin Attash and al Hawsawi possibly coming the following week. With this adjustment, the January session would now last four weeks, McCall 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.