Military judge says plea deals for 9/11 terrorists can proceed after DoD revoked them

Judge Col. Matthew N. McCall ruled that Defense Secretary Lloyd J. Austin was tardy and beyond his authority when he revoked separate plea deals on Aug. 2, 2024, just two days after they were approved and signed by a Pentagon official.

McCall said he would be calling Mohammed and defendants Walid bin Attash and Mustafa al-Hawsawi before his bench to separately enter their pleas. He did not indicate when that would happen, allowing the prosecution time to consider an appeal.

The decision was yet another bump in the road of a trial that has gone on for 12 years at Guantánamo Bay where Mohammed and four others were charged in 2012 with planning the terrorist attacks that resulted in the deaths of 3,000 people.

The plea deals were first discussed with the defendants this summer and prosecutors said it would bring some “finality and justice” to the case, which has also involved allegations of CIA torture of the defendants at the US military base at Guantanamo Bay. Prosecutors and the office of the secretary of defense did not immediately reply to a request for comment from The Times about whether it would appeal, except to say it was “discussing next steps.”

“We are reviewing the decision and don’t have anything further at this time,” said Maj. Gen. Patrick Ryder, the Pentagon’s press secretary. The Pentagon official who signed the plea deal agreement was Susan K. Escallier, a retired US Army lawyer appointed by Austin. But on Aug. 2, Austin overruled her approval and said the case was of such historic importance that it warranted a full trial. But McCall said Escallier “possessed the legal authority” to approve the deals and said they were “enforceable contracts with the classic elements of offer, acceptance and consideration.”

McCall said Austin should have identified himself as the chief overseer of the case if he wanted to intervene. “What the secretary of defense could not do, however, was delegate authority to Ms. Escallier, recognize her independent discretion, then reverse that discretion upon disagreeing with how that discretion was utilized,” the judge determined.

He said that the plea deals of two of the defendants, Mohammed and Hawsawi, contained assurances that if the government revoked the agreement, the case would not continue with the penalty as a potential sentence. McCall said if his decision today is canceled by a higher court, a legal opinion would then have to decide if this promise was valid in law.