Military Appeals Court Rules 9/​11 Defendants Can Plead to Avoid Death Sentences

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.