Pentagon’s 9/11 plea deals can proceed, appeals court rules

The U.S. government’s controversial plea deals with three men accused of orchestrating the 9/11 terrorist attacks may proceed, a Defense Department appeals court has ruled, after the Biden administration sought to thwart an agreement that would spare the lives of those who have admitted guilt in the deadliest crime perpetrated on American soil.

The unanimous decision, released Monday night by the U.S. Court of Military Commission Review, is a rebuke of Defense Secretary Lloyd Austin, who intervened in the cases in August after the agreements were approved by a judge he had appointed to oversee the cases against Khalid Sheikh Mohammed, the attacks’ alleged mastermind, and Mohammed’s suspected accomplices. At the time, Austin said he believed that the families of those killed on Sept. 11, 2001, and as a result of the ensuing wars deserved to see them stand trial.

The appeals court ruled that while Austin had authority to restrict the judge, Susan K. Escallier, from entering into future pretrial agreements on behalf of the U.S. government, he could not rescind them after the fact. Mohammed and other defendants have already acknowledged their guilt, undermining any other proceeding against them, the appeals court found.

It was not immediately clear whether the administration intends to challenge the matter further. The Pentagon was reviewing the decision Tuesday, said a senior U.S. defense official, speaking on the condition of anonymity to discuss a sensitive legal matter. The department offered no other initial response to the ruling. A motions hearing in Mohammed’s case was to begin Jan. 6.

The appeals court’s ruling upholds an earlier determination by Air Force Col. Matthew McCall, a military commission judge who found in November that the plea deals are valid and that allowing Austin to rescind them afterward would grant him an “absolute veto over any discretionary act” reached by the officer he had appointed to oversee the cases. The Pentagon appealed that ruling within days, setting the stage for the appeals court to act.

In the plea deals, Mohammed and two other defendants - Walid bin Attash and Mustafa al-Hawsawi - would receive life in prison for admitting to killing nearly 3,000 people in an al-Qaeda plot that turned hijacked passenger jets into weapons. Two planes were flown into the World Trade Center in New York City, with another hitting the Pentagon outside of Washington. A fourth jetliner crashed in a Pennsylvania field after passengers fought with the hijackers.

The three defendants remain among the most prominent of some two dozen inmates at a detention facility on the U.S. naval base in Guantánamo Bay, Cuba. President Joe Biden said early in his administration that he intended to close the prison, but his administration has struggled to complete negotiations with other nations to transfer inmates back to their home countries.

Late Monday, the Pentagon announced that Ridah Bin Saleh al-Yazidi had been repatriated to Tunisia, leaving 26 inmates in Guantánamo. Of those, 14 are eligible for transfer, defense officials said.

It’s unclear what President-elect Donald Trump may do with Guantánamo and its inmates when he takes office in January. During his first administration, Trump forbid the facility’s closure and blocked efforts that former president Barack Obama had underway to repatriate several inmates, suggesting that doing so was soft on terrorism.