D.C. Appeals Court Blocks Guilty Pleas for 9/11 Defendants

Photo of Sec. Lloyd Austin courtesy of the U.S. Department of Defense.

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

Guantanamo Naval Base, Cuba –  A federal appellate court on Thursday evening granted a Justice Department request to stay the guilty pleas of Khalid Shaikh Mohammad and two co-defendants that were scheduled to commence here Friday morning.

The decision of the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit pushes any resolution of the disputed plea deals to the incoming administration of Donald J. Trump. The panel ordered full briefing and oral arguments on the government’s petition seeking to withdraw from the plea agreements and to prohibit guilty pleas. That briefing is now scheduled to conclude on Jan. 22.

“By delaying this to the next administration, the Biden administration has failed the families of 9/11,” Stephan Gerhardt, whose brother Ralph Gerhardt was killed in the World Trade Center, told reporters on Guantanamo Bay Thursday.

The news of the stay came as members of the media were already meeting with Gerhardt and several other victim family members at a hotel conference room on the U.S. Naval Base to discuss the prospect of Mohammad actually entering his guilty plea Friday morning. At least for supporters of the plea deals, that milestone was tantalizingly close on Wednesday, when Mohammad’s legal team, the military judge and prosecutors finalized the script for his plea colloquy.

During that hearing, Gary Sowards, Mohammad’s lead lawyer, confirmed to Air Force Col. Matthew McCall that his client would plead guilty to “all charges and specifications” in the government’s case against him.

Mohammad, Walid bin Attash and Mustafa al Hawsawi signed plea agreements with the court’s convening authority, Susan Escallier, on July 31; McCall intended to hear Mohammad’s guilty plea the following week. The proceedings were forestalled on Aug. 2 when Sec. of Defense Lloyd Austin decided to withdraw from the deals – a move that the defense teams, McCall and the U.S. Court of Military Commission Review have all said was unlawful.

The D.C. Circuit’s brief order on Thursday by panel Judges Patricia Millett, Robert Wilkins and Neomi Rao said that the “administrative stay should not be construed in any way as a ruling on the merits of” the government’s petition for a writ of mandamus that would validate Austin’s withdrawal.

Family members meeting with the media expressed disappointment but not surprise at the latest turn in the on-again, off-again dispute that has caused emotional turmoil for them and throughout the family community. Those who spoke on the record Thursday expressed concern that the fate of the 9/11 case would remain uncertain without any clear path towards a resolution. Deborah Garcia, whose husband David Garcia was killed in the World Trade Center, said she supported the plea deals for “finality.” Absent that, she said, the perpetrators of 9/11 will "die innocent” if they die of natural causes.

Garcia, who has attended several of the prior hearings, also attributes the October 2020 suicide of her oldest son to the murder of his father on 9/11. She was accompanied on this trip by her younger son, Dylan Garcia, who turned 28 on Thursday. This was his first trip to Guantanamo Bay.

Family members reiterated a sentiment expressed during recent trips – that many critics of the agreements did not understand that the guilty pleas would be followed by a lengthy sentencing trial at which the government would establish the defendants’ guilt in the mass murder of their family members. Clay Trivett, the lead prosecutor, told McCall on Wednesday that the government’s sentencing presentation would last several months with the goal of establishing “the historical record” of the attacks.

The plea agreements have been opposed in the family community and among senior political ranks for removing the death penalty as a sentencing option, and for precluding a longer contested trial that was expected to last at least a year. In November, two family members who were aware of the prosecution’s plan for an extensive sentencing presentation expressed opposition to the deals. Jessica Trant, whose father Daniel Trant was killed at the World Trade Center, and Julie Boryczewski, whose brother Martin Boryczewski was killed there, supported Austin’s attempted withdrawal from the agreements.

In a subsequent email exchange, Trant said that plea deals would show “the world that we allow the architect of the worst attack on our country to dictate how his life will play out.” She said the justice system was failing her father and other victims. Trant said that she was prepared to sit through a full trial and hear non-death sentences by a military jury because "at the very least we deserved a trial.”

Boryczewski said during the November meeting with reporters that the plea deals sent “the wrong message” to the world in light of the ongoing threat of terrorism. She later said by email that agreeing to life in prison for such “heinous acts” – including the brutal murder of her brother and many others – would constitute a national failure.

The fourth remaining defendant, Ammar al Baluchi, did not reach a plea deal with the government. His team is asking McCall to suppress incriminating statements he gave to FBI agents in early 2007, about four months after his arrival on Guantanamo Bay from CIA black sites. McCall plans to hear oral arguments in the long-running suppression hearing during this session. The D.C. Circuit’s order granting a stay of the plea deals does not apply to al Baluchi’s case.

McCall severed a fifth defendant, Ramzi bin al Shibh, from the case in September 2023 after finding he was not mentally competent to assist in his own defense.

McCall has previously ordered each of the legal teams with plea agreements to have one attorney observing al Baluchi's case. He has also said that the teams will be able to recall certain witnesses that they have declined to examine in light of their pending deals, if they are required to rejoin the pretrial litigation. In court Wednesday, McCall raised the issue of whether al Baluchi's case should be severed from his three co-defendants. Trivett said that the prosecution would be opposed to severance until the plea-deal dispute was resolved. 

If the government succeeds in revoking the plea deals, it may be prevented from seeking the death penalty against Mohammad and al Hawsawi – whose agreements contain provisions removing capital punishment upon withdrawal. Bin Attash’s deal removes the death penalty from his case if the government breaches the agreement; his team has already filed a notice of breach with McCall in the event Austin's withdrawal is upheld. 

All four defendants showed up to court on Friday for what turned out to be a nine-minute hearing. McCall told the parties that, based on the filing dates in the D.C. Circuit’s order, plea proceedings could potentially move forward for the two-week session set to begin Feb. 17. He recessed court until Tuesday, Jan. 21, the day after Trump’s inauguration, when both al Baluchi’s lawyers and the prosecution will be ready to present oral arguments on the suppression case.

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.