U.S. Military Reaches Plea Agreement to Avoid the Death Penalty with Three Men Accused of Plotting September 11 Attacks

UPDATE:  On August 2nd, Secretary of Defense Lloyd Austin revoked the July 31, 2024 plea agreement reached between military commissions prosecutors and defense counsel for three of the 9/11 defendants being held at Guantanamo. In a two-paragraph memo, Secretary Austin revoked the authority of Susan Escallier, the head of the Military Commissions Convening Authority, to enter into the plea agreements and reserved that authority for himself. This unexpected development negates at least two years of delicate negotiations intended to bring an end to more than twenty years of litigation over the events of 9/11. It was also a tacit admission of the difficulties military commissions prosecutors will face securing death sentences against men who were brutally tortured for many months before being brought to Guantanamo. The admissibility of any statements that were obtained under torture has been a central issue in the litigation, and the lasting injuries the men suffered have resulted in their continuing serious physical and mental decompensation raising the possibility that additional defendants will become incompetent. With the revocation of these plea agreements, the men will once again face a possible death sentence if and when their trials move forward.

On July 31, 2024, the United States Department of Defense announced that Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawi, three of the men accused of plotting the September 11, 2001terrorism attacks, have reached plea agreements to avoid the death penalty. In a letter to families of the victims, Rear Admiral Aaron Rugh, the chief prosecutor in the cases, said that “in exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet.” Plea negotiations with all three men have been in progress for more than two years. They have also agreed “to a process to respond to questions submitted” by victims’ family members “regarding their roles and reasons for conducting the September 11 attacks.” All three men are scheduled to formally enter their guilty pleas in hearings scheduled for the second week of August, or during the September and October sessions of the Convening Authority for Military Commissions.

A 2015 law passed by the United States Congress prevents the government from allowing detainees held in Guantánamo Bay to enter the continental United States, even for criminal proceedings. A previous plea agreement was essentially vetoed by President Biden in September 2023. Reaching a plea agreement in these cases was complicated by the brutal interrogation and torture techniques used against the prisoners later held at Guantánamo Bay and their deteriorating mental health conditions. Anthony Romero, the executive director of the American Civil Liberties Union said that the plea agreements entered by all three defendants are “the only practical solution after nearly two decades of litigation.” Mr. Romero added that the plea agreement “further underscores the fact that the death penalty is out of step with the fundamental values of our democratic system.”

In 2008, Mr. Mohammed, Mr. bin Attash, and Mr. al-Hawsawi, in addition to two others, were charged for their involvement in the September 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. 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 argued that the evidence obtained from these interrogations should be inadmissible at trial. Mr. Mohammed and his co-defendants were recently scheduled to go to trial in January 2021, but two judicial resignations in combination with the COVID-19 pandemic delayed the trial date again.

All three men will have sentencing hearings starting in summer 2025, where victims’ family members will have the opportunity “to testify about the impact the September 11 attacks have had” as well as “provide a victim impact statement that will be considered by the military jury in determining a sentence,” according to the letter sent by prosecutors. In a statement from Brett Eagleson, the president of 9/11 Justice, he said that some families are “deeply troubled by these plea deals.” Mr. Eagleson added that “while we acknowledge the decision to avoid the death penalty, our primary concern remains access to these individuals for information. These plea deals should not perpetuate a system of closed-door agreements, where crucial information is hidden without giving the families of the victims the chance to learn the full truth.” Other victims’ family members have been pushing for plea agreements in these cases since 2017, in an effort to achieve “judicial finality.” Terry Kay Rockefeller, a member of September 11^th Families for Peaceful Tomorrows, said that she “would have liked a trial of men who hadn’t been tortured, but we got handed a really poor opportunity for justice, and this is a way to verdicts and finality.”