The Defense Secretary Revoked a Plea Deal in the 9/11 Case. Or Did He?

How the latest controversy in the long-running death-penalty case at Guantánamo Bay could play out.

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Khalid Shaikh Mohammed at Guantánamo Bay in June, in an image provided by his legal team. He is accused of masterminding the Sept. 11 attacks.

By Carol Rosenberg

Reporting from Guantánamo Bay, Cuba

Sept. 11, 2024, 5:02 a.m. ET

In rapid succession, two dramatic decisions jolted the Sept. 11 case this summer: a plea agreement that exchanged life sentences for guilty pleas, and its reversal.

What happens next in the case is up to the judge, who has to decide if Defense Secretary Lloyd J. Austin III had the authority to revoke the agreement days after the retired general he put in charge of the process signed it.

Mr. Austin declared that his only motivation was to make sure there would eventually be a trial for the man accused of masterminding of the attacks, Khalid Shaikh Mohammed, and his co-defendants.

But his decision left the military judge in the case with a series of questions to resolve. Do the rules allow Mr. Austin to revoke an agreement after it was signed, sealed and delivered to the court? Or did he act too late? Did the manner in which he did it create the appearance of unlawful influence?

The case has been in pretrial hearings since 2012. Four successive military judges have wrestled with the rules and evidence in the trial at Guantánamo Bay’s special tribunals, which the Bush administration created in response to the attacks that killed nearly 3,000 people in New York, at the Pentagon and in Pennsylvania on Sept. 11, 2001.

Five weeks of pretrial hearings are scheduled to begin on Monday, just after the 23rd anniversary of the attacks. But the question of the plea might not come up until October. Prosecutors have lined up two weeks of witnesses to testify on a challenge to the case by the lawyers for the one defendant who did not sign the agreement.

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