A Pentagon appeals panel on Monday upheld a military judge’s finding that the plea deals in the Sept. 11 case are valid, clearing the way at least for now for a guilty plea hearing next week with the accused mastermind of the attack, Khalid Shaikh Mohammed.
Col. Matthew N. McCall, the judge in the case, had ruled that Defense Secretary Lloyd J. Austin III acted too late and beyond the scope of his authority when he rescinded the three deals on Aug. 2, two days after a senior Pentagon appointee had signed them.
Under the pretrial agreements, or PTAs, Mr. Mohammed and two co-defendants agreed to plead guilty to war crimes charges in exchange for life prison sentences rather than face a death-penalty trial. Their case, accusing them of conspiring with the hijackers who killed nearly 3,000 people in New York, in Pennsylvania and at the Pentagon, has been mired in pretrial proceedings since 2012.
“We agree with the military judge that the secretary did not have authority to revoke respondents’ existing PTAs because the respondents had started performance of the PTAs,” the three-judge panel wrote in a 21-page decision released Monday night.
Sept. 11 family members — both those opposing and those favoring the deals — were anxiously awaiting the panel’s decision before the judge’s trip to the war court at Guantánamo Bay, Cuba, on Saturday for two weeks of hearings to separately examine the pleas of Mr. Mohammed, Walid bin Attash and Mustafa al Hawsawi.
Some have described the on-again, off-again nature of the plea deal as agonizing.
Absent an appeal, plea-taking proceedings at Guantánamo Bay in January would be a first step in a monthslong process that would potentially continue throughout 2025 with the selection of a military jury to hear the case, including victim testimony and any mitigating circumstances, and deliberate a sentence.
Rear Adm. Aaron C. Rugh, the chief prosecutor for military commissions, did not respond to a question Monday night about whether his team would ask the Justice Department to pursue the case further at the U.S. Court of Appeals for the District of Columbia Circuit.
The plea deals were reached by Admiral Rugh’s prosecutors in more than two years of negotiations and were then approved by Susan K. Escallier, the official Mr. Austin put in charge of the military commissions.
Now those prosecutors will have to decide whether to seek to stop the pleas through a higher court of appeal. Mr. Austin’s decision to revoke the agreements has already prompted months of litigation.
Lawyers for Mr. Mohammed and the others had urged the trial judge to swiftly proceed to plea proceedings over the summer, arguing that the deals had been signed and filed with the court and that the judge had begun preparing for the plea taking before Mr. Austin acted.
Mr. Austin was traveling in Asia when the Pentagon announced that the deal had been reached. After consulting his staff, he signed a document that purported to undo it upon his return to Washington.
Mr. Austin recently took over control of plea negotiations in the two other active court cases at Guantánamo Bay. One is a capital case against a Saudi man who is accused of plotting the U.S.S. Cole bombing in 2000. The other is against an Indonesian man facing a maximum of life in prison as the accused mastermind of the Bali bombing in 2002. Neither had reached an agreement.
The appeals panel found that a defense secretary has the power to prevent a war court overseer from negotiating a plea deal as a general principle, just not retroactively.
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