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

UPDATE: On August 2^nd, 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.”