Appeals Court Backs Austin’s Authority to Cancel 9/11 Plea Deals
A federal appeals court has affirmed that former Defense Secretary Lloyd Austin possessed the unequivocal authority to revoke plea agreements reached last year with Khalid Sheikh Mohammed and two other individuals accused in the September 11th terrorist attacks. The ruling effectively overturns a prior decision by a military judge who had deemed the agreements – which removed the possibility of the death penalty – as legally valid and enforceable.
The decision, handed down on Friday, concludes months of legal contention sparked by Austin’s decision to withdraw the agreements shortly after they were finalized. Court documents state that “the Secretary of Defense indisputably had legal authority to withdraw from the agreements; the plain and unambiguous text of the pretrial agreements shows that no performance of promises had begun.”
The proposed plea deals, the result of 27 months of negotiation, would have seen Mohammed, Mustafa al Hawsawi, and Walid Bin ‘Attash plead guilty in exchange for life sentences without the possibility of execution. A key component of the agreements involved a public sentencing hearing where the accused would have been questioned by family members and survivors of the 9/11 attacks.
However, the agreements faced immediate and intense opposition from both political figures and groups representing victims’ families, many of whom advocated for the death penalty. Just days after public announcement, Austin intervened, asserting that the ultimate decision rested with him, not with Brigadier General Susan Escallier, who oversaw the military courts at Guantanamo Bay. Austin subsequently removed Escallier from her position of authority over the cases.
This action initiated a legal challenge from defense attorneys, who characterized Austin’s move as “corrupt and unprecedented.” They argued that the revocation violated regulations outlined in the military’s Manual for Military Commissions, which stipulates that a pretrial agreement can only be withdrawn before the accused begins fulfilling their obligations. A defense attorney for Mohammed contended last August that his client had already begun “very important, substantive, specific performance,” rendering Austin’s intervention untimely.
Initially, a military judge appeared to side with the defense, ruling in November that the plea agreements were indeed “valid and enforceable.” A military appeals court echoed this sentiment in December. However, the DC Circuit Court of Appeals ultimately sided with the government, stating that Austin had “full legal authority” and that no actions had been taken by the defendants that would have prevented his withdrawal.
The ruling has drawn criticism from legal advocates for the detainees. Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, stated the decision would “ensure nothing but the continued lack of justice and accountability for anyone involved in the military commissions.” Dixon characterized the Biden administration’s decision to invalidate the plea agreements as “inexplicable” and a “painful betrayal” to the 9/11 victim families, arguing that after two decades of legal battles at Guantanamo, a contested trial is unlikely to ever reach a resolution.
Dixon further explained that even if a trial were to occur and result in a conviction, the defendants would likely be able to present evidence of torture during sentencing, a scenario the government appears “unwilling” to allow. The prolonged legal proceedings have been significantly complicated by the ongoing debate surrounding the admissibility of evidence obtained through torture at CIA black sites.
The future of the 9/11 cases remains uncertain, with the possibility of a trial still years away. The court’s decision underscores the significant authority held by the Secretary of Defense in these sensitive military commission proceedings.
