The Pentagon is seen on Oct. 21, 2021. (Robert H. Reid/Stars and Stripes)
The Pentagon will appeal a military judge’s ruling that Defense Secretary Lloyd Austin did not have the power to throw out plea deals reached earlier this year in the long-stalled cases against the accused planners of the Sept. 11, 2001, attacks, intensifying an unusual standoff over a seminal terrorism case.
In a letter dated Friday to the families of 9/11 victims, Rear Adm. Aaron Rugh, chief military commissions prosecutor, said the government would challenge the ruling days earlier by Air Force Col. Matthew McCall, which found that agreements finalized this summer, enabling three of the alleged plotters to admit guilt in exchange for being spared the death penalty, remained valid because Austin lacked the power to void them after the fact.
The Pentagon chief abruptly canceled the plea agreements in August amid outcry from some 9/11 families, New York firefighters and Republican lawmakers, citing authority granted to him under the 2009 Military Commissions Act.
The Pentagon’s planned appeal represents the latest twist for the ill-fated 9/11 cases, which have been stuck in pretrial proceedings for more than a decade, underscoring the larger failure of the military court system set up after the attacks to deliver meaningful justice.
It also lengthens the legal showdown surrounding the fates of three central 9/11 defendants: alleged mastermind Khalid Sheikh Mohammed, Walid bin Attash and Mustafa al-Hawsawi. They are among the most prominent among the 30 remaining inmates at the high-security facility at Guantánamo Bay, Cuba.
In his Aug. 2 memo voiding the plea deals, Austin also stripped retired Brig. Gen. Susan Escallier, whom he appointed in 2023 as the official overseeing the military trials, of her authority over those cases, saying the “significance” of the plea deals meant the decision should rest with him as defense secretary.
But McCall found that Austin’s move came too late.
“The timing of the SECDEF memo is fatal to its enforceability,” the judge ruled. “Assuming the secretary of defense had the authority to withhold Ms. Escallier’s authority to enter into [plea deals] as a matter of law, the secretary’s new power would only be effective prospectively, not retroactively.”
Speaking to reporters this week, Austin reiterated his belief that he, not Escallier, should have had purview over such plea deals. “I thought at that point in time that it was important enough that I should be the person to make the decision on this,” Austin told reporters of the decision on Thursday. “And I still feel that same way.”
In his letter, a copy of which was obtained by The Washington Post, Rugh said the government would seek to delay proceedings on the plea agreements, which McCall’s ruling set in motion. He said McCall’s findings would be appealed to the U.S. Court of Military Commission Review, which is made up of military judges.
Looming over the dispute is President-elect Donald Trump, who during his first term signed an order to keep Guantánamo open indefinitely and once threatened to fill it with new extremist inmates. While the facility remained in operation, it ultimately did not house new prisoners.
Given the outrage over the plea deals voiced by Republicans in Congress, including Senate Minority Leader Mitch McConnell (R-Kentucky) and House Armed Services Committee chair Rep. Mike D. Rogers (R-Alabama), a Trump-run Pentagon may also seek to quash the plea deals, which critics said let terrorists off the book.
But legal experts point out that, without a pretrial agreement, the 9/11 cases may never conclude because of legal impediments rooted in defendants’ torture, which defense lawyers have described as the system’s “original sin.” Without a conclusion, the three defendants, like other remaining Guantánamo inmates - many of whom have never been charged with a crime - could face lifetime detention without conviction or even trial.
Ian Moss, a former State Department official and Guantánamo defense attorney who is now an attorney at Jenner & Block, called McCall’s ruling “a victory for the rule of law.”
“What it says is that despite the well-documented challenges of the military commission system, this decision, which again I think is right on its merits, really presents an opportunity to move us closer to closing this chapter,” Moss said.
The families of 9/11 victims and their advocates are divided over the plea deals. Some have advocated for an agreement that would conclude years of legal wrangling that prevented even the start of a trial; others remain firm that they want to see the death penalty remain as a possible sentencing option.
In the plea deals, the defendants agreed to plead guilty to the killing of 2,976 people and to respond to written questions from victims and their survivors.
Eugene Fidell, who teaches military law at Yale Law School, suggested that President Joe Biden could use his status as a lame-duck president, freed from potential political consequences, to let the plea deals stand and ensure that a case with global resonance does not drag on indefinitely.
“You could argue that this is the most liberated administration in the history of Guantánamo,” Fidell said, urging Biden to “bring it in for a landing.” Otherwise, he added, “what is his legacy if he passes this on to the next administration?”
