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Defense counsel for the alleged 9/11 conspirators at Guantanamo Bay claimed Wednesday that a move by Defense Secretary Lloyd Austin to revoke a previously-agreed-upon plea deal violated military regulations and exposed the system as “corrupt.”
“We have had an unprecedented act by a government official to pull back what was a valid agreement … For us, it raises very serious questions about continuing to engage in a system that seems so obviously corrupt and rigged,” Walter Ruiz, defense counsel for Mustafa Ahmed Adam al Hawsawi, said during a hearing at Guantanamo on Wednesday.
Wednesday’s pretrial hearing, which has been scheduled for months, followed a whiplash decision by Austin to revoke a plea deal that had been announced just two days prior last week. A press release from the Pentagon originally said that the convening authority for military commissions, Susan Escallier, had entered into pretrial agreements with Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash and Hawsawi.
The agreement was the result of more than two years of negotiations. Ruiz noted that parties, including the prosecution, had worked “for years … in good faith” to reach the pretrial agreement, “only to have that taken away.”
But the plea deal prompted a fierce backlash, including from both sides of the political aisle and some groups representing 9/11 victims who have pushed for the US government to pursue the death penalty. A short memo from Austin on Friday, which was quietly posted to the Pentagon’s website, said that he was withdrawing Escallier’s authority and reserving “such authority to myself.”
“Effective immediately, in the exercise of my authority, I hereby withdraw from the three pre-trial agreements that you signed on July 31, 2024 in the above-referenced case,” Austin said.
The defendants’ defense teams, as well as outside legal experts, argued this week that such a move was potentially unlawful and violated the military’s own military commission regulations.
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.”
In response, prosecutor Clayton Trivett said in court on Wednesday that the government had not yet had the chance to “work through the issues raised in these motions” and have their position “fully articulated.” Sowards responded forcefully, telling the judge he was “frankly gobstruck” that the government would not have had the opportunity to “formulate and opinion or position” on whether Austin’s decision abided by existing regulations.
“’We want to consult with people’ — that sounds like ‘we want to get our stories together,’” he said. “There is no story that says what happened on August 2 was authorized after what happened on July 31.”
At a news conference on Tuesday alongside Secretary of State Antony Blinken and their Australian counterparts, Austin defended his decision to revoke the agreement, saying 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. So this wasn’t a decision that I took lightly,” he said.
