9/11 plea deals can proceed after defense secretary moved to rescind them, military appeals court rules

A U.S. military court on Monday upheld a judge’s ruling that said Defense Secretary Lloyd Austin acted improperly this year when he invalidated plea agreements for three men accused of planning the terrorist attacks of Sept. 11, 2001.

The Court of Military Commission Review heard an appeal that sought to preserve Austin’s move in August to unravel the plea deals with Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash and Mustafa Ahmed Adam al Hawsawi. The agreements allow the defendants to plead guilty to lesser charges that would prevent them from receiving the death penalty.

The three-judge panel concluded that Austin did not have the authority to back out of deals implemented by Susan Escallier, the convening authority for military commissions appointed by the defense secretary last year who worked to negotiate the agreements.

The court said the defense secretary improperly rescinded the deals after the pretrial agreements were already underway.

Chief Judge Lisa M. Schenck wrote in her opinion, with the two other judges concurring, that Austin’s intervention in existing pretrial agreements was “without precedent.”

The Pentagon is weighing its options, including whether to appeal, a defense official said. On Tuesday, the Defense Department filed a request asking the Military Commission to pause the matter, specifically any submission of pleas under the deal, until Jan. 27 as it weights its options, the official said.

The ruling affirms a lower court’s finding last month that the three defendants should be allowed to move forward with their plea deals. All three stand accused of aiding, abetting and conspiring to carry out the 9/11 attacks on the World Trade Center and other sites.

The ruling noted that lawyers informed the court of the plea deals Aug. 1. The next day, Austin withdrew Escallier’s authority to make such an agreement.

“Responsibility for such a decision should rest with me,” Austin said at the time.

The court said that it would be unjust and outside the bounds of his authority for Austin to dismantle such a deal retroactively. It said the existence of a convening authority who can negotiate plea deals — in this case, Escallier — and a boss who can unravel them is not supported under military justice.