The man accused of plotting the Sept. 11, 2001, attacks and two of his co-defendants could once again face the death penalty after Defense Secretary Lloyd Austin on Friday took direct oversight of the case and withdrew the plea deals that were signed earlier this week.
In a memo, Austin announced his decision to remove retired Brig. Gen. Susan K. Escallier from overseeing the cases. He also revoked the pretrial agreements that would have removed the possibility of Khalid Sheikh Mohammed, Walid bin Attash and Mustafa al-Hawsawi facing the death penalty.
After the plea deals were made public Wednesday night, there was immediate and severe backlash from 9/11 families, Republican lawmakers and the New York City firefighters union, which lost more than 340 of its members. In all, about 3,000 people died in the deadliest terrorist attack on U.S. soil when hijackers, at Mohammed’s alleged direction, flew two planes into the World Trade Center in New York and one into the Pentagon. A fourth plane crashed in a field in Pennsylvania after passengers rushed the cockpit.
“I have determined that, in light of the significance of the decision to enter into pretrial agreements with the accused in the above-referenced case, responsibility for such a decision should rest with me as the superior convening authority under the Military Commissions Act of 2009,” Austin wrote in the memo.
Pentagon officials declined to comment on Friday night about the memo. While convening authorities overseeing military cases are nearly always uniformed military officers, the defense secretary and a handful of other senior civilian officials are permitted to step in and oversee cases if they see it as necessary.
Before the withdrawals, the plea deals had appeared to mark the conclusion of a legal battle that had stalled in pretrial hearings for more than a decade.
Austin’s decision comes after Rep. Mike D. Rogers (R.-Ala.), chairman of the House Armed Services Committee, sent the Pentagon a pointed letter on Thursday decrying the plea deal that was in place.
“Tragically, the news is a ‘gut punch’ to many of the victims’ families,” Rogers wrote. “It is unconscionable that the Biden-Harris administration would allow such a military plea. You, Mr. Secretary, are the Cabinet Member with ultimate oversight of the Office of Military Commissions. Your department allowed a plea deal with Khalid Shaikh Mohammed and his band of killers.”
Rogers requested by Aug. 23 a list of documents about the case, including communication among officials in the Biden administration concerning the plea deal.
The National Security Council said in a statement this week that Biden and the White House had no role in the plea deal.
“The President has directed his team to consult as appropriate with officials and lawyers at the Department of Defense on this matter,” the statement said.
Still, throughout the past days, Republican politicians have accused the Biden administration of letting terrorists off the hook. Rogers and others included Vice President Harris in their criticism. Harris became the Democratic presidential nominee on Friday.
“The Biden-Harris Administration’s cowardice in the face of terror is a national disgrace,” Sen. Mitch McConnell (R- Ky.) wrote in a statement. “The plea deal with terrorists, including those behind the 9/11 attacks, is a revolting abdication of the government’s responsibility to defend America and provide justice.”
The plea agreements announced Wednesday had been in the works for more than two years, according to a letter sent to families of the victims by a senior U.S. defense official overseeing the cases. The decision to settle “was not reached lightly,” the prosecutors wrote – and instead, was seen the “best path to finality and justice” in a case that has dragged on for 20 years and become mired in legal gridlock.
The delays in the case were in large part because of the torture the defendants experienced in secret Central Intelligence Agency prisons, known as black sites. The U.S. Senate has published reports that include information on waterboarding of some prisoners – including Mohammed.
Over the past years, prosecutors and defense attorneys have been arguing whether evidence obtained through torture is admissible in court. In a recent ruling about the USS Cole warship bombing in 2000, a judge threw out a confession because he said it was a product of torture.
“At the heart of the commissions’ problems is their original sin, torture,” John G. Baker, a Marine Corps general who served as defense counsel of the Military Commissions Defense Organization, told the Senate Judiciary Committee in 2021. “The United States chose to secretly detain and torture the men it now seeks to punish.”
Under the agreement, the three defendants would “plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet,” according to the letter. They also agreed to answer written questions from the surviving victims and victims’ families about their roles and reasons for conducting the attacks.
During a news conference on Wednesday, Dennis McGinley, who lost his brother in the attacks, said he and other victims’ families have “been through enough.”
“We need to end this cat and mouse game,” he said. “Finally, help us get the justice, the accountability, the transparency that not only we need, but that America needs.”
Alice Yu told CBS News that she still suffers from survivor’s guilt. Yu worked as an accountant on the South Tower and was able to make it out on the morning of the attacks.
“I’m thankful that they pled guilty,” Yu told CBS. “I mean, it’s been so many years now, but I don’t know what’s the best punishment.”
Before Austin’s memo, the Uniformed Firefighters Association of Greater New York posted on X a black and white picture of the firefighters who died in the attacks.
“The UFA is outraged by the deal given to the perpetrators who believe in evil and murdered close to 3000 innocent civilians on 9/11,” the post read. “There is only one outcome suitable.”
(c) 2024, The Washington Post · María Luisa Paúl, Dan Lamothe, Amber Ferguson