WASHINGTON, DC — U.S. Defense Secretary Lloyd J. Austin III Friday night overruled the overseer of the war court at Guantánamo Bay and revoked a just-announced plea deal with Khalid Sheikh Mohammad, and two alleged accomplices in the Sept. 11, 2001 attacks, according to New York Times reporting.
Just Thursday, the ACLU said its client and alleged 9/11 accomplice, Mohammed, had opted for life imprisonment instead of the death penalty.
But, late Friday, that all apparently changed.
The Pentagon, said the NY Times, announced the decision in a “memorandum relieving the senior official at the Defense Department responsible for military commissions of her oversight of the capital case against Khalid Shaikh Mohammed and his alleged accomplices for the attacks that killed nearly 3,000 people in New York City, at the Pentagon and in a Pennsylvania field.”
In a statement before the Friday announcement by the U.S., Anthony D. Romero, executive director of the ACLU said, “The government’s decision to settle for life imprisonment instead of seeking the death penalty in the case of Khalid Sheikh Mohammed is the right call. It’s also the only practical solution after nearly two decades of litigation.
“For too long, the U.S. has repeatedly defended its use of torture and unconstitutional military tribunals at Guantánamo Bay. The military commissions were doomed from the start and the government’s torture of these defendants makes this plea both necessary and just. Finally, closing the chapter on these cases with a plea agreement will also provide a measure of transparency and justice for 9/11 family members.”
Since 2008, the ACLU has provided capital defense support for prisoners faced with the death penalty, spending $12.5 million on experienced capital defenders, mitigation specialists, investigators, and experts to the under-resourced military defense teams.
Romero added, “Our efforts exposed unfairness, secrecy, and the ongoing role of torture in the Guantanamo military commissions, making clear that the commissions are a complete failure. The yearslong litigation prevented the execution of defendants who had been tortured and whose rights guaranteed by the Constitution and international law had been trampled.”
Romero argues the now-defunct plea deal only further emphasizes that the death penalty oversteps the fundamental values of the American democracy system, claiming, “It is inhumane, inequitable, and unjust.”
But with Austin’s late Friday announcement, the U.S. tossed all plea bargain out the window.
The Times said U.S. case overseer retired “Brig. Gen. Susan K. Escallier had signed a pretrial agreement on Wednesday with Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi that exchanged guilty pleas for sentences of at most life in prison.”
The NY Times wrote Friday that, in “taking away the authority, Mr. Austin assumed direct oversight of the case and canceled the agreement, effectively reinstating it as a death-penalty case. He left Ms. Escallier in the role of oversight of Guantánamo’s other cases.
“Because of the stakes involved, the “responsibility for such a decision should rest with me,” Mr. Austin said in an order released Friday night by the Pentagon (writing) “Effective immediately, in the exercise of my authority, I hereby withdraw from the three pretrial agreements that you signed on July 31, 2024.”
The Times noted, “Escallier’s approval of the agreement that was reached between prosecutors and the defendants over two years of negotiations had appeared to resolve the case, which had been mired in pretrial hearings since 2012.
“By then, prosecutors in the case had alerted the decision to family members of those killed in the attacks, some of whom expressed disappointment and anger that a death sentence was no longer possible. So did Republican leaders,” including Republican leader Sen. Mitch McConnell of Kentucky, who the Times said called the plea agreement “a revolting abdication of the government’s responsibility to defend America and provide justice.”
But, the NY Times reported Sen. Richard J. Durbin (D-Illinois) and chair of the Judiciary Committee said the plea was a “small measure of justice and finality to the victims and their loved ones.”
The Times wrote, “A senior Pentagon official said that the decision was the secretary’s alone, and that the White House had no involvement. The official said Mr. Austin had never supported a plea deal and wanted the military commission trials to proceed.
“Mr. Austin’s action was met with disbelief by lawyers at Guantánamo Bay who were preparing for a hearing, possibly as soon as Wednesday, for the judge in the case, Col. Matthew N. McCall, to question Mr. Mohammed about whether he understood and voluntarily agreed with the plea.”
And, said Gary D. Sowards, Mr. Mohammed’s lead defense counsel, said, according to the Times, “If the secretary of defense issued such an order, I am respectfully and profoundly disappointed that after all of these years the government still has not learned the lessons of this case, and the mischief that results from disregarding due process and fair play.”
