19 September 2024 :
September 11, 2024 - US MILITARY. The Defense Secretary Revoked a Plea Deal in the 9/11 Case. Or Did He?
How the latest controversy in the long-running death-penalty case at Guantánamo Bay could play out.
In rapid succession, 2 dramatic decisions jolted the Sept. 11 case this summer: a plea agreement that exchanged life sentences for guilty pleas, and its reversal.
What happens next in the case is up to the judge, who has to decide if Defense Secretary Lloyd J. Austin III had the authority to revoke the agreement days after the retired general he put in charge of the process signed it.
Mr. Austin declared that his only motivation was to make sure there would eventually be a trial for the man accused of masterminding of the attacks, Khalid Shaikh Mohammed, and his co-defendants.
But his decision left the military judge in the case with a series of questions to resolve. Do the rules allow Mr. Austin to revoke an agreement after it was signed, sealed and delivered to the court? Or did he act too late? Did the manner in which he did it create the appearance of unlawful influence?
The case has been in pretrial hearings since 2012. 4 successive military judges have wrestled with the rules and evidence in the trial at Guantánamo Bay’s special tribunals, which the Bush administration created in response to the attacks that killed nearly 3,000 people in New York, at the Pentagon and in Pennsylvania on Sept. 11, 2001.
5 weeks of pretrial hearings are scheduled to begin on Monday, just after the 23rd anniversary of the attacks. But the question of the plea might not come up until October. Prosecutors have lined up 2 weeks of witnesses to testify on a challenge to the case by the lawyers for the one defendant who did not sign the agreement.
7 news organizations, including The New York Times, this week petitioned the judge to unseal the documents associated with the plea agreements. The judge set an Oct. 1 deadline for prosecution and defense lawyers to respond to the filing.
Here is how it could all play out:
The judge could consider the timing of Mr. Austin’s decision.
Defense lawyers for the 3 men who signed the agreement argue that Mr. Austin acted too late, and that the plea agreements are essentially still valid contracts.
They want the judge, Col. Matthew N. McCall, to rule that Mr. Austin was wrong and to take the first steps toward a sentencing hearing that could happen next year.
To assist in deciding that question, the judge has asked the lawyers a series of technical questions about which rules, if any, allow a defense secretary to “withhold and reverse, or otherwise alter,” a lawful action by the overseer of the military commissions.
In this instance, the overseer is Susan Escallier, a retired brigadier general whom Mr. Austin put in charge of the war court last summer.
The judge could hear arguments on the question in the next hearings, rule on the spot or take his time before acting. Whatever he decides, his ruling could kick off appeals in higher courts.
Some defense lawyers are preparing a separate argument to dismiss the case, or the possibility of the death penalty. They say that Mr. Austin’s withdrawal of the deal after politicians protested it created the impression that he was subject to political influence.
The court could move forward on other issues.
The judge has made clear he wants to continue hearing evidence and arguments to resolve issues that have delayed the start of the death-penalty case for a dozen years. One topic is whether national security restrictions on the defense lawyers’ ability to investigate and acquire evidence prevent the defendants from having a fair trial.
In 2018, the 1st judge threw out the prisoners’ confessions for that reason. The next 3 judges have revisited the question.
Colonel McCall could suspend the case until the government decides that sharing the classified information at issue no longer presents a national security risk.
He could dismiss the case, which could still result in it being brought again later.
Or he could take death off the table, making life in prison the ultimate possible sentence.
The impact of torture on the confessions could be addressed.
Confessions by the defendants were obtained during interrogations at Guantánamo Bay in 2007, after the men had been tortured while they were in C.I.A. custody.
The judge has spent years hearing evidence about what happened before those confessions to decide whether they were tainted by torture.
The judge in Guantánamo’s other death-penalty case threw out that defendant’s confession for that reason, declaring that it was derived from torture.
In the Sept. 11 case, one team has argued that the case should be dismissed entirely using a rarely successful legal doctrine involving “outrageous government conduct.”
Under the plea deal, the government could use at least portions of the confessions in the sentencing phase.
The court may look at whether outside factors influenced Mr. Austin.
The court could examine whether Mr. Austin was unlawfully influenced by outside factors when he revoked the plea agreement two days after Ms. Escallier signed it.
But that question is unlikely to be ready for the judge to consider until later this year as defense lawyers seek information about the timing and circumstances of Mr. Austin’s decision.
Mr. Austin said he was acting out of a personal belief that there should be a trial. In the intervening days, however, 2 congressional committees opened an investigation into the plea deal and political leaders denounced it, as did some families of those killed on Sept. 11.
In this case and in military justice in general, a judge can dismiss a case or the death penalty as a possible punishment for even an appearance of “unlawful influence” to restore faith in the process and the independence of the judiciary. In this instance, the judge could also essentially reinstate the plea agreement through a finding that Mr. Austin did not have the authority to rescind it.
Last month, the judge urged the government to comply with requests by the defense teams for information surrounding Mr. Austin’s decision.
But obtaining emails or call logs or testimony of conversations could take time, and possibly subpoenas.
