A military judge ruled Wednesday, Nov. 6, that plea agreements struck by alleged Sept. 11 mastermind Khalid Sheikh Mohammed and two co-defendants are valid. This voids an order by Defense Secretary Lloyd Austin to throw out the deals.
The ruling by Air Force Col. Matthew McCall means the three defendants could soon enter guilty pleas, taking a dramatic step toward wrapping up the long-running prosecution in one of the deadliest attacks on the United States.
Mohammed, Walid bin Attash and Mustafa al-Hawsawi are charged with conspiracy, murder and other crimes related to the Sept. 11, 2001, al-Qaida attacks that killed nearly 3,000 people.
The plea agreements would spare the defendants the risk of the death penalty in exchange for the guilty pleas. Government prosecutors had negotiated the deals with defense attorneys under government auspices. The top official for the military commission at the Guantanamo Bay naval base had approved the agreements.
Austin had attempted to nullify the agreements, citing the need for the defense secretary’s approval in possible death penalty cases tied to one of the gravest crimes ever carried out on U.S. soil.
McCall’s 29-page ruling concludes Austin lacked the legal authority to toss out the plea deals. The ruling also calls the timing of Austin’s move “fatal,” coming after Guantanamo’s top official already had approved the deals.
Abiding by Austin’s order would give defense secretaries “absolute veto power” over any act they disagree with, McCall wrote. That would be contrary to the independence of the presiding official over the Guantanamo trials.
Pentagon Press Secretary Maj. Gen. Pat Ryder said the Pentagon is reviewing the decision but had no further comment.
Families of some of the victims and others oppose the plea deals, seeking trial and possible death sentences.
The prosecution has faced delays and legal difficulties, including years of ongoing pretrial hearings to determine the admissibility of statements by the defendants given their years of torture in CIA custody.
The CIA’s destruction of videos of interrogations and the question of whether Austin’s plea deal reversal constituted unlawful interference are among the issues likely to be raised in any death penalty appeals.
Additionally, the U.S. Court of Appeals for the District of Columbia Circuit would likely hear arguments on whether the torture of the men tainted subsequent interrogations by “clean teams” of FBI agents that didn’t involve violence.
