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.