Despite Military Judge’s Approval of 9/​11 Plea Deal, Defense Secretary and Prosecutors Continue to Push Back

U.S. military judge Colonel Matthew N. McCall is moving ahead cautiously with scheduling the plea hearings in the case of Khalid Shaikh Mohammed and his codefendants, accused of plotting the September 11 terror attacks. On November 10, 2024, Col. McCall instructed counsel to agree on dates in either December 2024 or early January 2025 to hold plea hearings for Mr. Mohammed and his codefendants, Walid bin Attash and Mustafa al-Hawsawi. Lead prosecutor Clayton G. Trivett, Jr. had asked Col. McCall to pause the proceedings while his team prepared its appeal, which Col. McCall declined to do. Gary Sowards, attorney for Mr. Mohammed, said that the prosecution’s decision to appeal the judge’s ruling has “snatched away” finality and justice.

On November 7, Col. McCall ruled that plea agreements reached in July 2024 are valid, allowing for the possibility that Mr. Mohammed and his codefendants could be sentenced to life in prison rather than face the death penalty. Col. McCall determined that Defense Secretary Lloyd J. Austin III exceeded his authority and acted too late when, on August 2, 2024, he revoked the plea agreements that had been finalized with the three men. Col. McCall also stated at that time that he would proceed with plea hearings Mr. Mohammed, along with Mr. bin Attash and Mr. al-Hawsawi.

The military prosecutor who agreed to the plea deal said it was meant to bring a level of “finality and justice” to the case. Brigadier General Susan K. Escallier, a retired Army lawyer whom Secretary Austin appointed to oversee the military commissions, signed the agreement after more than two years of negotiations. Secretary Austin rescinded the deal two days later and stripped BG Escallier of her authority. In his ruling upholding the deal, Col. McCall said that BG Escallier “possessed the legal authority” to sign the agreements when they were signed, and thus, they constituted “enforceable contracts with the classic elements of offer, acceptance and consideration.” He added that before BG Escallier signed the agreements, Secretary Austin did have the authority to retain control of the case himself, but he never did. “What the secretary of defense could not do, however, was delegate authority to BG Escallier, recognize her independent discretion, then reverse that discretion upon disagreeing with how that discretion was utilized.” The day after Col. McCall issued his ruling, Secretary Austin said he still believes that he “should be the person that made the decision” in the case.