A military appeals court has rejected an attempt by Defense Secretary Lloyd Austin to overturn plea-bargain deals that would spare al Qaeda senior planner Khalid Sheikh Mohammed and two other defendants in the 9/11 attacks from the death penalty, ruling the Pentagon chief lacked the standing to intervene in the fraught legal cases.
Back on the table now is a deal that would allow Mohammed and his co-defendants, Walid bin Attash and Mustafa al-Hawsawi, to plead guilty to the attacks by al Qaeda that killed nearly 3,000 people in New York and Washington and helped trigger more than 20 years’ worth of fighting in Iraq and Afghanistan. In exchange, military prosecutors said they would not seek the death penalty for the three men.
The long legal ordeal over how to deal with the 9/11 plotters and other detainees in the global war on terrorism has centered on how to deal with the fact that a number of the detainees faced torture and other extra-legal procedures in the early days after they were captured and sent to the detainee facility at Guantanamo. But the recent news of a plea deal avoiding the death penalty for the high-profile defendants sparked an uproar and sharp criticism from senior Republicans on Capitol Hill.
Within days of the news, Mr. Austin said he was voiding the plea deal approved by retired Brig. Gen. Susan Escallier, an Army lawyer he appointed as Convening Authority for Military Commissions.
“Responsibility for such a decision should rest with me as the superior convening authority,” Mr. Austin wrote in his memo to her. “I hereby withdraw from the three pre-trial agreements that you signed.”
The military judge in the case ruled that Mr. Austin lacked legal standing to reject a deal already agreed to by the defense and the prosecutors. The Defense Department appealed the judge’s decision to the Court of Military Commission Review, which functions as an appellate court for military commissions.
The three-judge panel on Monday agreed with the military judge that Mr. Austin couldn’t intervene to block the deal at the last moment.
“The Secretary [of Defense] did not have authority to revoke respondents’ existing [pre-trial agreements] because the respondents had started performance” of the deals, the jurists wrote, according to The New York Times which obtained a copy of the decision.
Defense attorneys vowed to fight Mr. Austin’s intervention when it was first announced in August.
Walter Ruiz, an attorney for 9/11 defendant Mustafa al-Hawsawi, told reporters at the time that Mr. Austin’s order suggested “unlawful interference at the highest levels of government.”
On Tuesday, a Pentagon spokesman declined to comment on the latest legal setback in a legal battle that has dragged on for decades. Mr. Austin, who will be leaving office in just three weeks, now has the option of taking his case to the U.S. Court of Appeals for the District of Columbia Circuit.
It is not clear how the incoming Trump administration will deal with the detainees. President Biden has sought to whittle down the last of the detainees held at Guantanamo, many of whose trials have lingered for decades without resolution.
Mr. Trump has previously spoken of his desire to ramp up the number of people held at the facility on the island of Cuba, and congressional Republicans have repeatedly shot down efforts to close the Guantanamo facility and transfer its detainees to the U.S. mainland.
Separately, the Pentagon said it had repatriated one of the longest-held detainees at the Guantanamo military prison, a Tunisian man who U.S. authorities approved for transfer more than a decade ago, The Associated Press reported.
Ridah bin Saleh al-Yazidi’s return to Tunisia leaves 26 men at Guantanamo, down from a peak population of about 700 Muslim men detained abroad and brought to the prison in the years after the Sept. 11, 2001, attacks.
Al-Yazidi’s repatriation leaves 14 men awaiting transfer to other countries after U.S. authorities waived any prosecution and cleared them as security risks, the AP reported.
• Mike Glenn can be reached at mglenn@washingtontimes.com.