In a startling reversal of a decision made just 48 hours earlier, U.S. Defense Secretary Lloyd Austin has revoked plea deals reached with three accused plotters of the Sept. 11, 2001, terror attacks, including the alleged mastermind, Khalid Sheikh Mohammed.
Austin also removed the head of the U.S. military commissions — who on Wednesday had approved the settlement agreements — from the 9/11 case, which has been mired in legal quagmire for two decades and is widely considered unlikely ever to go to trial.
Austin's surprise announcement, made Friday night, cancels plea bargains that would have allowed the three men to avoid a death-penalty trial by pleading guilty to conspiracy and murder charges in return for sentences of up to life in prison.
Many 9/11 family members and elected officials had celebrated the deals, which they view as the only practical way to resolve the case. But others, including some members of Congress, condemned the settlements as being soft on terrorists who admit to killing nearly 3,000 people.
It all made for a head-spinning week at the U.S. military court in Guantánamo Bay, Cuba, where prosecutors, defense attorneys and various other government officials have been flying back and forth for years to litigate the 9/11 case. The nullification of the plea deals means that, at least for now, the case returns to a state of legal gridlock.
President Biden and the White House "played no role" in approving the settlements and only learned of them when they were announced by the Pentagon on Wednesday, according to a spokesperson for the National Security Council. The deals were inked by the so-called convening authority for the military commissions, Susan Escallier, a retired brigadier general who was appointed to the Defense Department role last summer by Secretary Austin.
In relieving Escallier of her 9/11 duties and reversing her decision to enter into settlements, Austin wrote that “in light of the significance of the decision…responsibility for such a decision should rest with me.” By assuming oversight of the case, Austin stripped Escallier of her 9/11 decision-making power, although she remains in charge of other Guantánamo cases.
Among 9/11 family members, reaction to the reversal of the plea deals ranged from exasperation to anger to delight.
"I'm really just feeling numb," said Elizabeth Miller, who was 6 years old when her father, a Staten Island firefighter, died in the September 11th attacks, and who supports settlement agreements.
"I got my hopes up that this would finally be over, and I'm disappointed in the U.S. government," she said. "It just feels like, now you want to get involved? Now you want to pay attention? Like, how can we continue on as is? These pre-trial hearings have been going on for 13 years and we're no closer to a death penalty conviction now than we were 13 years ago. So what's the point of continuing?"
Miller also questioned why Austin intervened in the case since the "convening authority" is statutorily independent, designed to be free of political influence, and typically does not require approval from above.
"What's the point of having a convening authority if the convening authority doesn't have the authority to make these decisions? Let them do their job," she said.
"How was this decision made?" Miller added. "Was it made because of the uproar of individuals who are pro-death penalty? I think most families just want this to end — and this was the best way and, in my opinion, the only way that it was going to end. So for those of us who know what's going on there, it's hard to imagine how you go back to doing what they were doing before."
Other relatives are pleased that the 9/11 defendants may again face the prospect of being put to death. And some family members, including Brett Eagleson — who was 15 when his father died in the World Trade Center collapse and who has campaigned against plea deals — believe a trial could result in important new revelations about the planning of the attacks.
Eagleson said Wednesday's announcement that settlements had been reached was a "complete shock" to him and many other 9/11 family members. By agreeing to plea bargains, he said, "you are denying the American public and the 9/11 families their day in court, and you're denying justice. To do a plea deal feels like we've been betrayed."
"We want a trial," he added. "We want to put these individuals on a stand. We want the public to see it. And we want the media to see everything that these individuals have to say."
Sen. Tom Cotton of Arkansas is one of numerous Republican lawmakers who had expressed disgust at the settlement agreements, blasting them as "a disgrace." On the other end of the political spectrum, Sen. Richard Durbin of Illinois called the plea deals a "small measure of justice and finality for the victims and their loved ones."
Settlement talks had begun in March 2022 but appeared dormant after the Biden administration last September rejected some proposed conditions, including a request that the defendants not be sentenced to solitary confinement. The defendants also requested medical care for their lingering injuries from having been tortured in secret CIA prisons known as black sites.
That torture is largely responsible for bogging down the case, since prosecutors and defense attorneys have been arguing for years over whether evidence obtained through torture is admissible in court. In a recent ruling that did not bode well for 9/11 prosecutors, a judge in another different Guantánamo case — the U.S.S. Cole warship bombing — threw out a confession because he said it was a product of torture.
In addition to Mohammad, the two other 9/11 defendants who had signed plea deals are Walid bin Attash and Mustafa al-Hawsawi. One 9/11 defendant, Ammar al-Baluchi, had not agreed to a plea deal in part because he wants any settlement to include post-torture medical care, according to one of his lawyers, Alka Pradhan.
Another lawyer for al-Baluchi, James Connell, said this about Secretary Austin canceling the plea bargains: "What this tells us is what we knew all along — that this case is really just a string of political intrusions into a made-up judicial system. No legitimate justice system can allow other outside political actors to come in and make the decisions for the people who are actually involved.”
"Before this plea agreement, not many people paid much attention to the military commissions, and most people couldn't have even told you that there was a military commission going on," Connell added. "And if it returns to the same things that it's been doing for the past 13 years, then it really just goes back to business as usual, and keeps slogging along in legal gridlock for a long time."
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