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military commissions
'Betrayal of Justice': US Court Nixes Plea Deals for Tortured 9/11 Defendants
"This decision will ensure nothing but a continued lack of justice and accountability for everyone involved in the 9/11 military trial at Guantánamo," said one critic.
Jul 11, 2025
Human rights defenders on Friday condemned a federal appellate panel's decision upholding former U.S. Defense Secretary Lloyd Austin's withdrawal of pretrial plea agreements for three men accused of plotting the September 11, 2001 attacks on the United States.
Austin, who served under former President Joe Biden, "indisputably had legal authority to withdraw from the agreements; the plain and unambiguous text of the pretrial agreements shows that no performance of promises had begun," the D.C. Court of Appeals panel ruled in a 2-1 decision.
Under the proposed deal, accused 9/11 mastermind Khalid Sheikh Mohammed and alleged co-conspirators Mustafa al-Hawsawi and Walid bin Attash would have been spared execution in return for pleading guilty. The agreement came amid years of stalled legal proceedings in a case complicated by the U.S. government's torture of the defendants and efforts to cover it up.
Austin withdrew the plea agreements last August, explaining that he "long believed that the families of the victims, our service members, and the American public deserves the opportunity to see military commission trials carried out in this case."
However, attorneys for the defendants called the legally dubious military commission regime established at the Guantánamo Bay prison—notorious for detainee torture and indefinite detention—during the George W. Bush administration "obviously corrupt and rigged." During the 2000s, several military prosecutors resigned from the commissions in protest over what some of them called a rigged system designed to ensure there were no acquittals.
"The 9/11 case will never be resolved through a contested trial because the defendants were tortured by the CIA."
Last November, Air Force Col. Matthew McCall, a military judge, ruled that Lloyd "did not have the authority to do what he did, asserting that the plea deals "remain valid, and are enforceable," prompting the government's appeal. The following month, a military appeals court also ruled against Austin's bid to ditch the plea deals.
The Center for Constitutional Rights (CCR)—which has long represented Guantánamo detainees—called Friday's decision "a betrayal of justice."
"This decision will ensure nothing but a continued lack of justice and accountability for everyone involved in the 9/11 military trial at Guantánamo," CCR senior staff attorney Wells Dixon said in a statement. "The Biden administration's invalidation of plea agreements that would have resulted in convictions and life sentences for the 9/11 defendants is a painful betrayal of 9/11 victims' families."
"The 9/11 case will never be resolved through a contested trial because the defendants were tortured by the CIA," Dixon added. "The only way to resolve this case is for the Trump administration to succeed where every prior administration has failed and negotiate new deals with the 9/11 defendants that will finally close the 'War on Terror' prison at Guantánamo."
There are still 15 men currently imprisoned in Guantánamo, which is located on Cuban land leased to the U.S. in perpetuity by a dictatorship overthrown in 1959. Multiple detainees have been cleared for release, one of them for 15 years.
Some legal experts doubted whether the U.S. government would ever be able to try, let alone convict, the 9/11 suspects. Military judges and prosecutors have cited defendants' torture in declining to proceed with cases against them. Many men and boys were tortured at CIA "black sites," Guantánamo, and military prisons including Abu Ghraib. At least dozens of detainees died.
The three co-defendants were all captured in Pakistan during late 2002 and early 2003. After being turned over the United States, they were sent to CIA black sites, including the notorious "Salt Pit" outside Kabul, Afghanistan, where suspected militant Gul Rahman was tortured to death in November 2002. In 2006, the men were transferred to Guantánamo.
Mohammed was subjected to interrupted drowning, commonly called "waterboarding," 183 times, as well as other torture and abuse approved under the Bush administration's "enhanced interrogation" program. Hawsawi suffered a shredded rectum resulting from sodomization during so-called "rectal hydration" and has had to manually reinsert parts of his anal cavity to defecate. Bin Attash said he was placed in stress positions for extended periods, beaten, and doused in cold water.
The co-defendants must now decide whether to appeal the ruling to the full D.C. appeals court, the U.S. Supreme Court, or both.
"Putting aside the fantasy that this case is ever going to go to trial—assuming it does go to trial and that there's a conviction—you get to sentencing, and they have a right to put forward evidence... that they were tortured," Dixon told CNN Friday. "That's never going to happen."
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After Plea Deals Revived, Biden Urged to Transfer Uncharged Men at Guantánamo
Rights advocates want the president to fulfill his "long-standing commitment to turn the page on the 9/11 era by closing this shameful site of torture and indefinite detention."
Nov 07, 2024
U.S. President Joe Biden on Thursday faced pressure from legal groups to accept a military judge's revival of plea deals for three alleged plotters of the September 11, 2001 terrorist attacks and to transfer 19 uncharged men out of the American prison in Guantánamo Bay, Cuba.
Brig. Gen. Susan Escallier, the convening authority for the legally dubious Guantánamo Bay military commissions, this summer reached the controversial deals under which Khalid Sheikh Mohammed, Walid bin Attash, and Mustafa al-Hawsawi agreed to spend the rest of their lives in prison to avoid execution.
U.S. Defense Secretary Lloyd Austin swiftly withdrew the agreements, sparking criticism from some victims' families and legal experts. In a 29-page ruling on Wednesday, the judge, Col. Matthew N. McCall, wrote that the Pentagon chief "did not have the authority to do what he did." Thus, the pretrial agreements "remain valid and are enforceable," he wrote, and plea hearings should be scheduled.
It is not yet clear how the Pentagon will proceed, as its press secretary, Maj. Gen. Patrick Ryder, only told The New York Times that "we are reviewing the decision and don't have anything further at this time." However, legal organizations want the Biden administration to embrace the ruling.
ACLU executive director Anthony D. Romero, whose group represents Mohammed, said in a Thursday statement that "McCall rightly recognizes that Defense Secretary Austin stepped out of bounds" and "we are finally back at the only practical solution after nearly two decades of litigation."
"The government's decision to settle for life imprisonment instead of seeking the death penalty in the case of Khalid Sheikh Mohammed was always the right call," Romero continued. "For too long, the U.S. has repeatedly defended its use of torture and unconstitutional military tribunals at Guantánamo Bay. As a nation, we must move forward with the plea process and sentencing hearing that is intended to give victim family members answers to their questions. They deserve transparency and finality about the events that claimed their loved ones."
"This plea agreement further underscores the fact that the death penalty is out of step with the fundamental values of our democratic system. It is inhumane, inequitable, and unjust," he added. "We also urge the U.S. government to quickly relocate the men cleared for transfer, and finally end all indefinite detentions and unfair trials at Guantánamo."
The Center for Constitutional Rights (CCR)—which represents two of the 19 uncharged men at the facility infamous for torture—also put out a Thursday statement pressuring the administration to accept the judge's decision and focus on transfers.
"The Biden administration should not appeal this ruling because, after more than 20 years of litigation and uncertainty for victims' families, plea deals are the only responsible way to resolve the 9/11 case," CCR argued. "The president must instead use this opportunity to transfer the remaining 19 uncharged men out of Guantánamo, 16 of whom have been approved for transfer by all relevant agencies based on a unanimous determination that they pose no security threat, including our clients Guled Hassan Duran and Sharqawi al Hajj."
"These two steps are essential to fulfilling Biden's long-standing commitment to turn the page on the 9/11 era by closing this shameful site of torture and indefinite detention," the group added.
Biden's time to make any decisions regarding Guantánamo and the men imprisoned there is dwindling. After beating Democratic Vice President Kamala Harris on Tuesday, former President Donald Trump is set to return to the White House in January, shortly after what would be the 23rd anniversary of Guantánamo's opening.
The U.S. prison was launched in January 2002 under then-President George W. Bush, who responded to the 9/11 attacks with a so-called global War on Terror. Biden has so far failed to close Guantánamo, following in the footsteps of former President Barack Obama. Trump, during his first term, took action to keep it open.
As Lawdrawgon reported:
The plea agreements for Mohammad and al-Hawsawi contained provisions that removed the death penalty from the case in the event the government withdrew from the agreements. Sources said that the penalty provision should render the case noncapital, even if Austin was found to have acted lawfully.
The penalty clause was negotiated in the event that a future Trump administration tried to kill the deals, individuals familiar with the negotiations said.
In anticipation of Trump's return to power early next year, Amnesty International is urging Biden to take "six actions before his legacy is sealed for the history books." The final item calls on the outgoing president to "transfer all detainees cleared for release or not charged with crimes to countries where their human rights will be respected, halting the unfair military commissions and fairly resolving the pending cases, and close the Guantánamo prison once and for all."
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'Corrupt and Rigged': 9/11 Defense Lawyer Say Austin Broke Rules by Blocking Plea Deals
"We have had an unprecedented act by a government official to pull back what was a valid agreement," said an attorney representing tortured 9/11 suspects imprisoned at Guantánamo Bay.
Aug 07, 2024
Attorneys representing alleged 9/11 planners imprisoned at Guantánamo Bay argued Wednesday that U.S. Defense Secretary Lloyd Austin's move to block plea deals for three defendants violated Pentagon rules and belied the corruption of the military commission system established during the George W. Bush administration.
"We have had an unprecedented act by a government official to pull back what was a valid agreement," Walter Ruiz, who represents defendant Mustafa al-Hawsawi, said at a hearing at Guantánamo, according to CNN.
"For us, it raises very serious questions about continuing to engage in a system that seems so obviously corrupt and rigged," Ruiz added.
Last week, the Department of Defense announced that Brig. Gen. Susan Escallier, the convening authority for the Guantánamo military commissions, "has entered into pretrial agreements" with al-Hawsawi, alleged 9/11 mastermind Khalid Sheikh Mohammed, and Walid bin Attash.
The long-anticipated agreement—under which the three men would be spared execution by pleading guilty—came amid years of stalled legal proceedings in a case complicated by the U.S.' torture of the defendants and government efforts to cover it up.
While welcomed by advocates of closing the prison and some victims' families, Escallier's move also sparked a firestorm of criticism from numerous U.S. lawmakers, 9/11 first responders, and victims' relatives.
Last Friday, Austin withdrew the plea agreements. Speaking at a press conference on Tuesday, he explained that he has "long believed that the families of the victims, our service members, and the American public deserves the opportunity to see military commission trials carried out in his case."
"I'm deeply mindful of my duty to all those whose lives were lost or changed forever on 9/11, and I fully understand that no measure of justice can ever make up for their loss," Austin added. "So this wasn't a decision that I took lightly."
Eugene Fidell, a military law professor at Yale University and co-founder of the National Institute of Military Justice, told CNN that Austin's move "was illegal."
According to the network:
One of the primary issues pointed to on Wednesday by defense counsel was a regulation laid out in the military's Manual for Military Commissions, which says the convening authority can withdraw a pretrial agreement before the accused begins "performance of promises" or if the accused does not hold up their end of the deal. Gary Sowards, a defense attorney for Mohammad, said in court that Austin did not have authority under that regulation because his client had "begun very important, substantive, specific performance.'"
Sowards acknowledged that motions for discovery on the issue of potential unlawful influence by Austin, which would "seek to explore how he was coerced and influenced," could take a year or two to litigate. But the issue of the Manual for Military Commissions regulation is "a simple reading of about 12 lines of text," he said, and a decision on it should be able to be expedited.
Prosecutor Clayton Trivett Jr. told the commission Wednesday that the government needed to "work through the issues raised in these motions" so that the prosecution's position can be "fully articulated."
Sowards retorted, "'We want to consult with people'—that sounds like, 'We want to get our stories together.'"
Some legal experts doubted whether the government would ever be able to try, let alone convict, the 9/11 suspects. Military judges and prosecutors have cited defendants' torture in declining to proceed with cases against them. Many men and boys were tortured at CIA "black sites," Guantánamo, and military prisons including Abu Ghraib. At least dozens of detainees died.
Wells Dixon, a lawyer with the Center for Constitutional Rights who represented convicted terrorist Majid Khan, told CNN that the prosecution's unwillingness "to allow evidence about the defendants' torture and abuse to be aired in court" will make it extremely difficult to secure death sentences for the men.
"If Secretary Austin says that a 9/11 case is going to proceed to trial, and a verdict, and possibly a sentencing, then he is either hopelessly ill-informed or is lying to victims' family members," he added.
Accusations of military commission corruption go back decades.
In 2004, three military prosecutors—Maj. Robert Preston, Capt. John Carr, and Capt. Carrie Wolf—requested transfers from the commissions after concluding they were rigged.
"They were told by the chief prosecutor at the time that they didn't need evidence to get convictions," Clive Stafford Smith, an attorney who represented more than 70 Guantánamo detainees, told The Nation in 2008.
That year, former Guantánamo chief prosecutor Col. Morris Davis said that then-Pentagon General Counsel William Haynes told him that "we can't have acquittals."
Atlantic staff writer Graeme Wood asserted this week that "there is a way to clean up this mess."
"Now that Austin has assumed the power of the convening authority, he can restore the agreement he tore up on Friday—to reverse the reversal and bring these sordid proceedings to the end they were until recently already destined for," he wrote. "If he instead wants to extend the life of the commissions, slouching toward a trial that will never happen, then the pointless sacrifice of money and time will continue."
"For the families in search of finality, each minute of delay is a minute stolen, and for the defendants, each is a minute gained," Wood added. "The defendants have already cheated the hangman. The best way to end their run is to take that bitter deal, and bring these commissions to a well-deserved end."
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