A U.S. military court on Monday upheld a judge’s ruling that Defense Secretary Lloyd Austin acted improperly this year by invalidating plea agreements for three men accused of planning the Sept. 11 terrorist attacks. of 2001.
The Military Commission Review Court heard an appeal seeking to preserve Austin’s decision in August to undo plea agreements with Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash and Mustafa Ahmed Adam al Hawsawi. The agreements allow defendants to plead guilty to lesser charges that would prevent them from receiving the death penalty.
The three-judge panel concluded that Austin did not have the authority to retract the agreements put in place by Susan Escallier, the military commissions convening authority appointed by the defense secretary last year who worked to negotiate the agreements.
The court said the Secretary of Defense improperly terminated the agreements after pretrial agreements were already in place.
Chief Judge Lisa M. Schenck wrote in her opinion, with the other two judges concurring, that Austin’s intervention in existing pretrial agreements was “unprecedented.”
The Pentagon is weighing its options, including the possibility of appealing, a defense official said. On Tuesday, the Defense Department filed a request asking the Military Commission to suspend the matter, specifically any submission of allegations under the agreement, until Jan. 27 while it weighs its options, the official said.
The ruling upholds a lower court’s conclusion last month that the three defendants should be allowed to move forward with their plea deals. All three are accused of aiding, abetting and conspiring to carry out the 9/11 attacks on the World Trade Center and other sites.
The ruling noted that attorneys informed the court of the plea agreements on Aug. 1. The next day, Austin withdrew Escallier’s authority to make such an agreement.
“The responsibility for such a decision should rest with me,” Austin said at the time.
The court said it would be unfair and beyond the limits of its authority for Austin to retroactively dismantle such an agreement. He said the existence of a convening authority who can negotiate plea deals (in this case, Escallier) and a chief who can undo them is not supported by military justice.
Courtney Kube contributed.
