CNN
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A federal appeals court determined that former Defense Secretary Lloyd Austin “indisputably” had the authority to cancel plea agreements made last year with Khalid Sheikh Mohammed and two other defendants accused of plotting the 9/11 terror attack.
The decision overturns a ruling by a military judge last year that plea agreements setting aside the possibility of the death penalty for the men were “valid and enforceable,” after Austin revoked the deals months before.
“The Secretary of Defense indisputably had legal authority to withdraw from the agreements; the plain and unambiguous text of the pretrial agreements shows that no performance of promises had begun,” court documents outlining the decision of the DC Circuit Court of Appeals said.
Wells Dixon, a senior staff attorney at the Center for Constitutional Rights who previously represented another Guantanamo detainee, Majid Khan, criticized the court ruling on Friday, saying it will “ensure nothing but the continued lack of justice and accountability for anyone involved in the military commissions.”
“The Biden administration’s effort to invalidate the plea agreements that would resolve in lasting convictions and life sentences for the 9/11 defendants was inexplicable,” Dixon said. “It was a painful betrayal of the 9/11 victim family members, because we know after more than two decades of litigation at Guantanamo, and we know from experience, that the 9/11 cases will never be resolved through a contested trial.”
“Putting aside the fantasy that this case is ever going to go to trial — assuming it does go to trial and that there’s a conviction — you get to sentencing, and they have a right to put forward evidence … that they were tortured. That’s never going to happen,” Dixon added.
The military trial against Mohammed and the other alleged 9/11 conspirators has been delayed for years as the US government tried to determine how to handle the issue of the torture of individuals at CIA prisons, and the question of whether evidence obtained through torture was admissible in court. Dixon previously told CNN that the government is “unwilling” to admit evidence in trial “about the defendants’ torture.”
The pretrial agreements were announced last summer after 27 months of negotiation, and took the possibility of the death sentence off the table for Mohammed, Mustafa al Hawsawi, and Walid Bin ‘Attash. They required that the accused plead guilty to all charges against them and would undergo a public sentencing hearing in which they would be required to answer questions by family members and survivors of the September 11 attack.
The agreements drew fierce backlash, both politically and from some groups representing 9/11 victims and their families who had pushed for the death penalty.
But just days after the news of the agreements was publicized, Austin revoked them, saying the final decision should be left to him and not the official overseeing the military courts at Guantanamo Bay, Brig. Gen. Susan Escallier. Austin also withdrew Escallier’s authority over the cases.
Austin’s revocation kicked off a months-long legal battle. Attorneys representing the three conspirators called Austin’s actions corrupt and unprecedented, and argued that it was not legal due to a regulation in the military’s own Manual for Military Commissions, which says a pretrial agreement can only be withdrawn before the accused begins “performance of promises” or if they do not hold up their end of the agreement. A defense attorney for Mohammed argued in August last year that his client had already begun “very important, substantive, specific performance,” and therefore Austin’s actions were too late.
The military judge overseeing the trials of the three men appeared to agree, ruling in November that the plea agreements were “valid and enforceable.” A defense official told CNN at the time that the judge, Col. Matthew McCall, rules that not only are they legal and enforceable but “that [Austin] was too late in doing that.”
A military appeals court also ruled against Austin in December.
The DC Circuit Court of Appeals said in its ruling on Friday that Austin had “full legal authority” to withdraw from the pretrial agreements, and said there “no prior performance of promises contained in those agreements prevented the Secretary’s withdrawal.”
CNN’s Katelyn Polantz contributed to this report.
