Austin’s surprise decision to overrule 9/11 plea deals muddies military hearing

Secretary of State Lloyd Austin’s surprise decision to overrule the plea deals with three 9/11 terror defendants, including the attack’s alleged architect Khalid Sheikh Mohammed, may muddy their ongoing military hearings.

Defense attorneys are arguing that the plea deals — which would have removed the threat of the death penalty for the three men — still stand, and prosecutors are suggesting that the pre-trial hearings might have to be frozen until the legalities of Austin’s order are clarified. Defense attorneys are questioning whether Austin exercised undue or unlawful command influence.

On Friday, Austin signed a memo to the Convening Authority for Military Commissions to reserve for himself the authority to enter into pre-trial agreements with the accused and the 9/11 Military Commission cases, and he withdrew from the agreements signed in the cases. His memo was addressed to retired Brigadier Gen. Susan Escallier, who oversaw the deal. Austin said that he was withdrawing her authority in the case and reserving “such authority to myself.”

A senior defense official told reporters in a background briefing Wednesday the department believes Austin acted lawfully because the secretary is the superior convening authority under the Military Commissions Act. Austin, the official said, knew he had to be very careful to avoid any suggestion or indication that he was influencing this case inappropriately.

The secretary traditionally delegates convening authority duties to other officials. Military commissions may be convened either by the secretary or by any official designated by the secretary for that purpose, the defense official said.

The senior defense official said that news of the signing of the plea deals came as a surprise to the department, including the secretary, who has long believed that the families of the victims and the American public deserve to see the defendants tried by a military commission. The official said the department was only informed of the deal shortly before the convening authorities’ press release was issued last Wednesday.

At this point, the parties in Guantanamo will continue with pre-trial proceedings before the military judge. The convening authority, Escallier, retains all the functions and authority for this case except for the authority to enter into pre-trial agreements, the official said. The death penalty has been restored as the maximum penalty, not just for the three defendants, but two other co-defendants who may also try to pursue a plea deal.