Actions in the Guantanamo 9/11 Military Commissions, which have since the arraignment of five men accused of planning and supporting the 9/11 terrorist attacks been unable to even begin a trial, appeared to advance toward resolution and then with near lightening speed were thrown into new legal chaos.
On July 31, three of the remaining four accused, including alleged 9/11 mastermind Khalid Sheikh Mohammed, each signed a pretrial agreement, which was approved by the Convening Authority (CA) of the Military Commissions, former Brigadier General Susan Escallier. Escallier, had been appointed as the CA by Secretary of Defense Lloyd Austin in August of 2023. The CA, according to the rules of the Military Commissions:
(M)ay either accept or reject an offer of the accused to enter into a pretrial agreement or may propose by counteroffer any terms or conditions not prohibited by law or public policy. The decision whether to accept or reject an offer is within the sole discretion of the convening authority.
The agreements that Escallier approved included guilty pleas along with lengthy “stipulations of fact” describing each defendant’s actions related to 9/11. In exchange the government agreed to forego the death penalty, for sentences that would likely be life imprisonment. Then in near lightning speed, barely two days later, Secretary Austin overruled the prosecuting attorneys, who had worked for months to craft the agreements, and the CA issuing a terse statement:
I have determined that, in light of the significance of the decision to enter into pre-trial agreements with the accused in the above-referenced case, responsibility for such a decision should rest with me as the superior convening authority under the Military Commissions Act of 2009. Effective immediately, I hereby withdraw your authority in the above-referenced case to enter into a pre-trial agreement and reserve such authority to myself.
Effective immediately, in the exercise of my authority, I hereby withdraw from the three pre-trial agreements that you signed on July 31, 2024 in the above-referenced case.
The developments have been described by legal scholars as a “train wreck and a serious embarrassment for the government.” The ACLU declared, “(b)y revoking a signed plea agreement, Secretary Austin has prevented a guilty verdict in the most important criminal case of the 21st century. This rash act also violates the law….” Analysis of the issues at stake by former government officials who have been close to the issues in the case for more than two decades explained, “(t)he history of torture-tainted cases in the military commissions demonstrates the near impossibility of obtaining death penalty judgements” and concluded that the pretrial agreements the were the only realistic options for achieving a conviction in the 9/11 case.
The former U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Fionnuala Ní Aoláin, framed Austin’s action in an international legal framework, emphasizing its human rights consequences. She described revoking the agreements as a lost opportunity “to conclude meaningful and rule of law compliant plea agreements, finally redeeming the rights of 9/11 families…with an admission of guilt…(and) offering the potential to write a new chapter of international law compliance following decades of torture, cruel, inhuman and degrading treatment at the site (Guantanamo) and beyond.”
While just how the issues will be ultimately resolved, whether the agreements will stand, or whether Secretary Austin will prevail, is currently unclear. When the 9/11 pre-trial hearings resume following the 23rd anniversary of the 9/11 terrorist attacks, there will be lengthy litigation over the issues, as the judge in the case, Lt. Col Matthew McCall has ordered both the prosecution and the defense attorneys to file briefs and present arguments about a path forward.
