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'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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'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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9/11 Military Commission Stalls Again Over Defense Representation Rights
Oct 19, 2015
It was a typical Monday morning at the Guantanamo military commissions. Within the first 15 minutes, the judge had to adjourn the pre-trial hearing in the case of the five defendants accused of the September 11, 2001, terrorist attacks, this time because one of the defendants had asked a question. And no one knew the answer.
As Army Col. James Pohl, the judge presiding over the case went through his routine questioning of the accused to ensure they understood their rights to be present for at least the unclassified portions of the hearings in their military commission case, Walid bin Attash, a Yemeni in his mid-30s alleged to have trained some of the hijackers, piped up.
"What if I want to represent myself?" He asked in Arabic as his lawyers, seemingly baffled, looked on. "What is the procedure for that?"
It wasn't clear at first why bin Attash might now want to represent himself. His lead lawyer, Cheryl Bormann, a Chicago death penalty specialist who wore a hijab in court to earn her client's trust, said she had no idea. She asked the judge to adjourn the hearing so she could speak to her client.
An hour later, she told the court her client no longer trusted her or her co-counsel because he couldn't be sure there wasn't a CIA agent on his defense team or the government wasn't otherwise listening to what were supposed to be private conversations. These concerns might seem outlandish if not for the actual attempted defense team infiltration by the FBI and CIA monitoring of supposedly confidential communications earlier in the course of the pre-trial hearings.
"The conditions here are like the CIA black sites," said bin Attash through a translator at one point. Bormann told the court her client wants to represent himself because he can't trust anyone associated with the commissions, and he wants to know the procedure for doing that. Bormann said she couldn't tell him.
In federal court, Bormann told the Guantanamo court Monday morning, a client who represents himself can access a law library, past cases, and confer with outside lawyers. "There's none of that in military commissions." The 9/11 defendants are held under extreme security measures in Guantanamo's Camp 7 and are not permitted to access the internet, call their lawyers or obtain or review the sorts of materials available to most federal court defendants.
"I can't possibly advise him of his rights because I don't know what they are," Bormann said. "This is like no other court. The government's taken the position that the Sixth Amendment to the US Constitution doesn't apply."
The commissions have never ruled which aspects of the Constitution do apply at Guantanamo, although the U.S. Supreme Court has said that at least some parts of it do.
After further discussion, it became clear that neither Judge Pohl nor the prosecutors knew how exactly bin Attash could defend himself in the military commissions, given the restrictions on him at the Guantanamo prison. However, the lead prosecutor, Brigadier General Mark Martins, insisted those restrictions do not pose a problem. The judge adjourned the hearing until Tuesday morning, telling the prosecutors to call up the procedures the commissions used in 2008 when several defendants asked to represent themselves. (They later changed their minds.)
Judge Pohl did not mention that the law governing military commissions has changed since President Obama signed the Military Commissions Act of 2009. That new law introduced procedural rules that may affect a detainee's rights to self-representation and confidential communications.
At this point, of course, these sorts of case disruptions have become routine. The last hearing held in the 9/11 case was in February, when bin Attash and bin al Shibh both claimed, within minutes of the judge calling the commission to order, that they recognized one of the defense team translators from their time in a CIA black site. He'd assisted their torturous interrogations there, they claimed.
The government did not deny that the same translator appointed to assist a defense legal team at Guantanamo had also been employed at a secret CIA prison. After defense lawyers claimed their clients were being re-traumatized by the translators' presence, the judge adjourned the hearing to figure out what to do next.
The previous year, the 9/11 pretrial hearings were adjourned after defense counsel learned that an FBI agent had questioned a member of at least one defense team and asked him to become a government informant.
Those of us following the 9/11 military commission case have seen years' worth of these sorts of nearly comical "mishaps." Whether due to incompetence or an actual government desire to spy on the defendants and intrude on what are supposed to be confidential attorney-client relationships, the result has been a sort of Keystone Cops version of a war crimes case over a mass murder that happened more than 14 years ago.
The September 11, 2001 attacks against the World Trade Center in New York and the Pentagon in Washington were the most serious terrorist attacks ever on U.S. soil, leaving nearly 3,000 civilians dead. But the U.S. government's attempt to bring those terrorists to justice has unfortunately become more of a joke than a real effort to hold its perpetrators accountable.
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