Guantanamo’s military tribunal system has hosted a riveting courtroom drama.
The appellate court for the military commissions has rejected a government effort to stop the accused mastermind of the Sept. 11 attacks from pleading guilty next week on Guantanamo Bay.
The three-judge panel of the U.S. Court of Military Commission Review agreed with the 9/11 case judge, Air Force Col. Matthew McCall, that Sec. of Defense Lloyd Austin could not legally withdraw from the plea agreements that the official he appointed to oversee the court reached with Khalid Shaikh Mohammad and two co-defendants this past summer.
The 21-page ruling by the CMCR means that the guilty pleas by Mohammad, Walid bin Attash and Mustafa al Hawsawi will go forward in the month-long hearing scheduled to start Jan. 6 — at least for now.
The prosecution can still pursue a writ of mandamus to the U.S. Court of Appeals for the D.C. Circuit, which hears appeals from the Guantanamo commissions. Challenges to D.C. Circuit rulings go to the U.S. Supreme Court. The office of the chief prosecutor did not immediately respond to a request for comment.
The court’s convening authority, Susan Escallier, signed plea deals with three of the four remaining 9/11 defendants on July 31, following about two years of negotiations managed by the case’s lead prosecutor, Clay Trivett. (McCall severed a fifth defendant, Ramzi bin al Shibh, from the case in September 2023 after finding he was not mentally competent to assist in his own defense.) Under the terms of the deals, Mohammad, bin Attash and al Hawsawi agreed to admit to their alleged roles in the 9/11 attacks in exchange for the removal of the death penalty as a sentencing option.
News of the deals immediately drew both praise and intense opposition. Austin attempted to revoke the agreements in a memorandum to Escallier on Aug. 2. But McCall sided with the defense teams in a ruling on Nov. 6, concluding that Austin lacked the authority to terminate deals reached by the subordinate he appointed.
McCall noted that the three defendants had begun “performance” under the agreements by signing stipulations admitting to the alleged crimes and by declining to examine witnesses and otherwise participate in the pending pretrial motions. One defendant, Ammar al Baluchi, did not reach a plea deal. He is still seeking the suppression of confessions he gave to FBI agents on Guantanamo Bay in early 2007, following his transfer from CIA black sites.
The appellate panel agreed with McCall's reasoning when denying the government’s request for a writ of mandamus on Dec. 30. The judges concluded that Austin could take authority for approving any “future” plea deals but could not revoke “existing [agreements] because the respondents had started performance” of them.
The panel stated that the government did not meet the “clear and indisputable” test set by guiding case law in seeking the extraordinary relief of a writ to reverse McCall's decision on the plea agreements.
McCall told the parties during the November hearing that he wanted to hear Mohammad's guilty plea the week of Jan. 6, with bin Attash and al Hawsawi to possibly follow during the second week.
The judge plans to hear oral arguments on the suppression case for al Baluchi during the second half of January. Testimony in the long-running dispute over the admissibility of statements given to the FBI concluded in November.
