Attorneys say Austin violated military rules in halting deal for alleged 9/11 conspirators

By Haley Britzky, CNN

(CNN) — 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.

A senior defense official declined on Wednesday to provide specifics about any possible conversations Austin had with the White House on the plea agreement, saying only that he “exercised his own independent judgment,” and that the Pentagon is “in touch with the White House every day on a variety of issues.” The official also declined to comment about whether Austin was advised by the Pentagon’s general counsel ahead of his decision to revoke the agreement.

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.

“What he did was illegal,” Eugene Fidell, who teaches military justice at Yale University and co-founded the National Institute of Military Justice, told CNN.

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.

“We should not gratify the chaos that is resulting from this precipitous decision,” he said.

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.”

The senior defense official declined on Wednesday to comment on the claim that Austin violated military regulations, citing ongoing litigation, but said that the secretary “acted lawfully.” The official also said that Austin and the Pentagon were surprised by the announcement of the pretrial agreement, despite acknowledging that the negotiations had been underway “for years and years and years and years.”

When asked why the Pentagon would not have anticipated an eventual conclusion to those negotiations resulting in an agreement, the official said only that Austin “didn’t have a lot of insight” into the negotiations and “took the independence of the convening authority very seriously.“

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.

But Sowards argued Wednesday that by revoking the deal, Austin was actually doing more harm to the families.

While the terms of the pretrial agreement had not been released publicly, among them was the assurance that the detainees would answer questions by 9/11 victim family members. Sowards said family members had already “been submitting questions in good faith,” and expecting answers in return as part of the deal.

Austin’s actions, which threatened “total chaos,” reflect a “mistaken belief” that by settling the case there won’t be a trial, Sowards said, and is “tragically just the opposite of what he is trying to achieve.”

Legal experts also argued that Austin’s belief that the cases would go to trial, let alone sentencing, is not realistic. Wells Dixon, a senior staff attorney at the Center for Constitutional Rights, pointed to his experience representing Majid Khan at Guantanamo. Khan, a detainee who was convicted on terrorism offenses in 2012, was transferred to Belize last year after he fulfilled the terms of his plea agreement.

Dixon said Khan’s case showed if any military commission case goes to trial and ultimately sentencing, including the 9/11 case, the US government is “unwilling to allow evidence about the defendant’s torture and abuse to be aired in court,” making it highly unlikely for prosecutors to get the death penalty.

“If Secretary Austin says that a 9/11 case is going to proceed to trial, and a verdict, and possibly a sentencing,” Dixon said, “then he is either hopelessly ill-informed or is lying to victim family members.”

This story has been updated with additional developments.

CORRECTION: This story has been updated to correctly characterize Eugene Fidell’s role at Yale University.

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