War court prosecutors are asking a military judge to refrain from taking guilty pleas from Khalid Shaikh Mohammed, who is accused of masterminding the Sept. 11 attacks, and from two men accused of conspiring with him until a higher court decides the validity of their plea agreements.
In separate notices to the court and to the families of the nearly 3,000 people who were killed in the attacks, prosecutors said on Friday night that the government had decided to appeal the judge’s decision earlier in the week to take the pleas.
Clayton G. Trivett Jr., the lead prosecutor, went further. He notified the judge’s legal adviser that he intended to ask the judge, Col. Matthew N. McCall, during a rare court hearing on Sunday to suspend preparations for guilty plea proceedings next week. If he refused, Mr. Trivett said, the government would ask the Pentagon’s appeals panel for the military commissions to impose a stay on the proceedings, so they could prepare a full appeal.
The development was the latest to whipsaw Sept. 11 family members, who have responded emotionally to the settlement that was reached on July 31, undone on Aug. 2 and reinstated this week.
The government’s decision to appeal means the question of whether Mr. Mohammed can plead guilty in exchange for a life sentence or whether he must face a full trial will probably not be decided in the dwindling days of the Biden administration.
At Guantánamo, the decision disappointed Maureen Basnicki, 73, a Canadian citizen whose husband, Kenneth, was killed at the World Trade Center. She had extended her stay into next week to watch the guilty plea proceedings.
“Personally, I want the finality of them saying they are guilty, and doing that in my lifetime,” she said on Saturday.
Her husband’s mother died recently, and Ms. Basnicki blamed “the politicians” for interfering in efforts to resolve the case. “My mother-in-law missed out,” she said. “But I want that for my children.”
Mr. Trivett’s notice to the court said the government would ask the U.S. Court of Military Commission Review, a panel of presidential appointees, to decide whether Defense Secretary Lloyd J. Austin III had lawfully overturned the plea deal in August.
At issue is whether Mr. Austin had the authority to retroactively revoke the plea agreements, which had been signed two days earlier by Susan K. Escallier, the Pentagon official he had personally put in charge of the military commissions.
Colonel McCall ruled this week that Mr. Austin had acted too late and that the contract was still valid. The judge began preparing for a daylong guilty-plea hearing with Mr. Mohammed, a detailed inquiry by the judge on whether the defendant had understood and voluntarily signed the 20-page plea agreement and accompanying 28-page narrative of his crimes. Both are currently under seal.
Colonel McCall said he would then hold separate hearings with Walid bin Attash and Mustafa al-Hawsawi, two other defendants in the Sept. 11 conspiracy case who had also signed plea deals.
A senior administration official, who spoke about internal legal deliberations on condition of anonymity, said the White House had not been consulted and had not weighed in on the decision to appeal, adding, “This was Austin’s call.”
Pentagon officials declined on Saturday to say whether Mr. Austin had personally ordered the appeal or whether he had consulted with case prosecutors — the lawyers who reached the plea settlements after more than two years of negotiations and who wrote to Sept. 11 families in July that it was their “collective, reasoned and good-faith judgment that this resolution is the best path to finality and justice in this case.”
More family members were headed to the base on Saturday to observe the proceedings, which were resuming on Sunday afternoon with mental health testimony in the case against the one defendant who had not agreed to plead guilty, Ammar al-Baluchi.
Eugene R. Fidell, who teaches at Yale Law School and is an expert on and longtime observer of the Guantánamo proceedings, said the latest development illustrates that “the military commission system is bleeding out in terms of credibility.”
He urged President Biden to resolve the standoff. “The president could with perfect propriety tell General Austin to shut this down and allow the plea deals to go through.”
Anthony D. Romero, executive director of the American Civil Liberties Union, said Mr. Austin had “squandered the Biden administration’s opportunity to resolve the Sept. 11 cases and ensure accountability and finality for the crimes.”
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