The departing chairman of the Senate Judiciary Committee asked Defense Secretary Lloyd J. Austin III on Wednesday to support a settlement with the man accused of masterminding the Sept. 11 attacks, a move that would allow guilty pleas to go forward in the last days of the Biden administration.
“Far too many family members have died waiting for the military commission trial at Guantánamo to start — let alone deliver justice,” Senator Richard J. Durbin, Democrat of Illinois, wrote in a letter. He said the families of those killed on Sept. 11 had suffered “two decades of delays and false promises” in the case, which has spent more than a decade in pretrial proceedings to sort out if the C.I.A.’s torture of defendants tainted potential trial evidence.
There has never been a unified view among the thousands of family members on how the case should be resolved. Some want what prosecutors have called judicial finality, through guilty pleas that cannot be appealed. Others, including Mr. Austin, insist on an eventual military commissions trial. Either way, some family members have described the continuing litigation over the plea deal as agonizing.
On July 31, retired Brig. Gen. Susan K. Escallier, whom Mr. Austin had put in charge of the military commissions, approved the settlement with Khalid Shaikh Mohammed, the man accused of masterminding the plot, and two men accused of conspiring with him. All three agreed to plead guilty to their specific roles in the plot in exchange for a life sentence without the possibility of appeal or release, rather than eventually face a potential death penalty trial.
Mr. Austin revoked the deal two days later. But the military judge in the case, Col. Matthew N. McCall, ruled on Nov. 6 that Mr. Austin had acted too late.
Now case prosecutors have asked a Pentagon appellate panel to stop the judge from going forward with plea proceedings early next year.
Their brief reflects Mr. Austin’s sentiment that as defense secretary, he had the authority to retroactively cancel the deals because of the significance of the case, which accuses the three men as serving as “counselors, commanders, and conspirators in the murder of 2,976 people, the injury of scores of civilians and military personnel and the destruction of private property worth tens of billions of dollars.”
Mr. Durbin said in his letter that he had followed the military commissions “closely for more than two decades.”
“In all these years,” he wrote, “the prospects of a meaningful trial and a verdict in the 9/11 case that could be upheld on appeal has only grown more elusive.”
He invoked this summer’s endorsement of the deal by the conservative lawyer Theodore B. Olson, whose wife was killed in the attacks while Mr. Olson was serving as solicitor general to George W. Bush. Mr. Olson died last month.
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