A military judge overseeing the cases against Khalid Sheikh Mohammed and two other defendants accused of orchestrating the 9/11 attacks will review the legality of Defense Secretary Lloyd Austin’s decision to rescind plea agreements that would have spared them the death penalty.
This decision has been met with mixed reactions, with some praising the move and critics condemning the Pentagon’s controversial judicial process at Guantánamo Bay, Cuba.
Judge Air Force Col. Matthew McCall issued an order on Monday, as reported by The Washington Post, to examine whether Austin had the legal authority to nullify the plea agreements, which had been negotiated to resolve the case. This review could further delay the long-running prosecution of Mohammed, Walid bin Attash, and Mustafa al-Hawsawi, who are charged in connection with the September 11, 2001 attacks.
The Guantánamo military commissions have faced significant delays due to issues related to government secrecy, conflicts of interest, and documented torture of defendants. Austin, a retired Army general, has stated that he believes it is important for the cases to go to trial for the sake of the victims’ families, service members, and the American public.
Austin intervened on August 2, just two days after the Defense Department announced that a senior official had reached pretrial agreements with the defendants. Austin stated that the importance of the decision warranted his personal involvement.
Judge McCall has ordered both the prosecution and defense to submit briefs by August 20 to determine if Austin had the authority to revoke the plea deals and if he is allowed to overturn them without assuming full control of the case himself. The Pentagon has defended Austin’s actions, asserting that he acted within his rights.
The plea agreements, which had been approved by Susan K. Escallier, a retired general and military lawyer appointed by Austin, would have allowed the defendants to plead guilty to the murders of 2,976 people in exchange for avoiding the death penalty. The decision to cancel these agreements surprised Biden administration officials, who sought to distance themselves from the decision. Republican leaders, including Senate Minority Leader Mitch McConnell and Senator Tom Cotton, welcomed Austin’s intervention and criticized the administration for the plea deals.
Austin’s move could lead to protracted legal challenges, possibly reaching the Supreme Court.
