On December 30, 2024, a military appeals court upheld a lower court ruling rejecting Defense Secretary Lloyd Austin’s attempt to throw out plea deals reached for three men charged in the September 11 terrorism attacks. The court affirmed Judge Colonel Matthew N. McCall’s ruling in November 2024 that the plea agreements reached in July 2024 are valid. Col. McCall stated at the time that he would proceed with the plea hearings.
The three-panel court wrote that they “agree with the military judge that the secretary did not have authority to revoke respondents’ existing [pre-trial agreements] because the respondents had started performance of the [pre-trial agreements].” This ruling allows for the plea deals to move forward and for Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawi to plead guilty to their involvement in the attacks to avoid the possibility of facing the death penalty. The plea hearing, originally scheduled for January 6, has been postponed until January 10, although prosecutors may ask for additional time to confer with Justice Department lawyers about possibly challenging the plea deal in a federal appeals court.
Counsel for Mr. Mohammed and his co-defendants previously reached agreements with military prosecutors after nearly two years of negotiations and publicly announced their agreement in July 2024. Just days after the announcement, Secretary Austin revoked both the agreements and the authority of Retired Brigadier General Susan Escallier, the head of the Military Commissions Convening Authority, to enter into the plea agreements and reserved that authority for himself. Secretary Austin cited the gravity of the 9/11 attacks and asserted that as Secretary of Defense, he alone should make the decision on any plea agreements that would spare the three men from facing a capital trial.
In 2008, Mr. Mohammed, Mr. bin Attash, and Mr. al-Hawsawi, in addition to two others, were charged with being involved in the 9/11 attacks. Charges were later dropped in 2010, as the Obama Administration sought to hold trials for each man in New York. Military officials refiled charges against all five men in 2011 after the Obama Administration failed to close the Guantánamo Bay detention center and shift the cases to U.S.-based courts. The military trial for Mr. Mohammed and his co-defendants was delayed for many years as officials determined how to address the fact that the defendants were tortured while in CIA custody. Defense lawyers argue that the evidence obtained from these interrogations should be inadmissible at trial. Mr. Mohammed and his co-defendants were scheduled to go to trial in January 2021, but two judicial resignations in combination with the COVID-19 pandemic delayed the trial date again.
Carol Rosenberg, Plea Hearing in Sept. 11 Case Postponed to Jan. 10, The New York Times, January 3, 2025; Ellen Knickmeyer, Pentagon chief loses bid to reject 9/11 plea deals, Associated Press, December 31, 2024; Carol Rosenberg, Pentagon Appeals Court Upholds Plea Deals in Sept. 11 Case, The New York Times, December 30, 2024.
See the three-panel court’s ruling, here.
Military
Sep 28, 2023
Guantanamo Bay Judge Rules 9/11 Capital Defendant Mentally Incompetent to Stand Trial
News Brief — Retirement of Guantánamo Military Judge Likely to Further Delay Sept. 11 Death-Penalty Trial
NEWS (3/25/20): Guantánamo Bay — In an action that adds further uncertainty to the already tumultuous proceedings in the Guantánamo Sept. 11 death-penalty trial, the military commission judge presiding over the case has announced that he will be retiring from military service.
Air Force Col. W. Shane Cohen notified the military commissions through a memorandum dated March 17, 2020 that he would be retiring from active duty effective July 1, 2020. He said April 24 would be his last day of active service as a military commission judge. When Cohen was appointed in June 2019, he became the third judge since 2012 to preside over the case.
Cohen’s retirement makes it unlikely that the trial, which is expected to take between nine months to one year, will be able to start as currently scheduled on January 11, 2021. Cohen was in the midst of conducting hearings on a defense motion to exclude statements made by the five defendants in 2007 during interrogations at secret CIA black sites that utilized waterboarding and other torturous techniques.
A sailor at the Guantánamo Naval Base recently tested positive for the COVID-19 virus and defense lawyers who are granted “mission essential status” to travel to Guantánamo are required to remain in isolation in special housing for two weeks before being allowed visits with their clients, which will further delay preparation of the case. A new judge in the case will have to read more than 33,000 pages of transcripts in the case and hundreds of legal filings, including numerous pending motions.
Carol Rosenberg, Military Judge in 9/11 Trial at Guantánamo Is Retiring, New York Times, March 25, 2020; Carol Rosenberg, New Judge in the 9/11 Trial at Guantánamo Inherits a Complex History, New York Times, June 20, 2019.
Military
Sep 28, 2023