Stage Set for 9/11 Suspect’s Guilty Plea on Friday

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

Guantanamo Naval Base, Cuba – The stage was set Wednesday for the accused mastermind of the 9/11 attacks to enter his guilty plea this week, with the military judge, prosecutors and defense team for Khalid Shaikh Mohammad agreeing on his colloquy for what was intended to be an historic culmination of 12 years of litigation for the murder of 2,976 people.

The judge, Air Force Col. Matthew McCall, presided over the brief morning hearing to iron out some of the questions he had for the two legal teams as he finalized the 103-page script for what could be a Friday denouement – with a lengthy sentencing trial still to come.

Whether the Friday date is kept is in the hands of the U.S. Court of Appeals for the D.C. Circuit, which is considering the government's request for an emergency stay of the plea hearing as it seeks to withdraw from the plea agreements that the court overseer reached with Mohammad and two co-defendants this past summer.

For now, though, McCall continued to move the parties forward with his plan to at least begin to take Mohammad’s guilty plea on Friday. The judge intends to hear guilty pleas from Walid bin Attash and Mustafa al Hawsawi later in this month-long session.

“Can you confirm that Mr. Mohammad is pleading guilty to all charges and specifications without exceptions or substitutions?” McCall asked Gary Sowards, who is Mohammad’s lead lawyer, on Wednesday morning.

“Yes, we can, Your Honor,” Sowards said.

Sowards also confirmed that Mohammad was convinced that the government had evidence to prove his guilt for each offense beyond a reasonable doubt.  

Sowards and the case’s lead prosecutor, Clay Trivett, worked quickly with McCall through a series of what appeared to be mostly minor changes or clarifications sought either by one of the teams or the judge himself. The plea agreements and the stipulations of fact in which the defendants admitted to their alleged roles in the 9/11 attacks remain under seal. In July, the three defendants signed the agreements in exchange for the removal of the death penalty as a sentencing option.

If the guilty pleas go forward, a sentencing trial is expected to be held at which the government would present its case against the defendants before a jury of military officers. On Wednesday, Trivett told McCall it would take in excess of 10 months for the prosecution to prepare its case. 

Trivett said the prosecution would give a “several-month presentation” at the trial to establish “the historical record” of the Sept. 11 attacks. The prosecution was engaging with an expanding group of victim family members who may want to give in-person, video or written statements for the trial, he said.

“There's hundreds of people that are now interested,” Trivett said.

The prosecution team negotiated the plea agreements with the defense teams for about two years. The court’s convening authority, Susan Escallier, signed the agreements on July 31. In a surprise move, however, Sec. of Defense Lloyd Austin informed Escallier by memorandum two days later that he was taking authority for reaching plea agreements in the case and was withdrawing from the three she signed, “Effective immediately.”

On Nov. 6, McCall sided with the defense teams, holding that Austin could not lawfully withdraw from the agreements, in part because the defendants had begun performing under the agreements by not participating in the ongoing pretrial disputes. A fourth defendant, Ammar al Baluchi, is still litigating to suppress confessions he gave to FBI agents following his incommunicado detention and abuse by the CIA. Final arguments on that evidentiary dispute are also scheduled for later this month.

On Dec. 30, the U.S. Court of Military Commission Review largely upheld McCall’s ruling, denying the government’s request for a writ of mandamus as well as its request to halt the entry of pleas.

Come late Tuesday afternoon, however, the Justice Department filed another request for a writ of mandamus and a stay of the plea proceedings with the D.C. Circuit, which hears appeals from the military commissions. The circuit panel has since ordered the defense teams to file their responses by midnight on Wednesday. The government can reply to those filings by Thursday at noon.

Sowards on Wednesday told McCall that Trivett’s remarks about a lengthy sentencing hearing proved that the Justice Department was incorrect to argue in its writ and stay petitions that the entry of pleas would foreclose a public trial.

“That's exactly the opposite of what's going on,” Sowards said.

He requested a quick production of Wednesday’s transcript as part of defense efforts to prepare for filings for the D.C. Circuit. McCall said he understood but declined to add any additional commentary: “I am tempted to say something, but I won't.” 

Many victim family members and political figures have nevertheless been critical of any plans that do not include a guilt-or-innocence trial – one that was expected to last a year or more – and that removed the death penalty as a possible sentence for the worst-ever attacks on American soil. 

The Justice Department's petitions at the D.C. Circuit that were made public did not contain any mention of a reported provision in Mohammad's and another plea agreement that removed the death penalty as a sentencing option if the government were to withdraw from the deals. Individuals familiar with the agreements have said that because of that provision, the 9/11 case would effectively become non-capital if Austin prevails in withdrawing from the deals. 

If the D.C. Circuit sides with the defense teams, the government can seek review from the U.S. Supreme Court, lawyers said Wednesday. 

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 this year.