When the Pentagon announced last month that military prosecutors had entered into a plea deal with three accused Sept. 11 terrorists that would spare them the death penalty, the political blowback was fast and furious.
"Unthinkable," said Speaker of House Mike Johnson about the deal in a posting on X. "A disgrace," thundered Sen. Ted Cruz. "We need a president who kills terrorists, not negotiates with them," proclaimed Ohio Sen. JD Vance, Donald Trump's vice presidential running mate.
It didn't take long for Secretary of Defense Lloyd Austin to respond as well. Two days after the deal became public, and in the aftermath of the fierce congressional criticism, Austin, in a surprise move, threw out the negotiated plea bargain with 9/11 mastermind Khaled Sheikh Mohammed and two co-defendants and removed the Pentagon official, retired Brig. Gen. Susan K. Escallier, who green lighted the deal, from authority over the matter.
The decision by Austin may well have headed off a potential political problem for the White House, and by extension Democratic presidential nominee Vice President Kamala Harris, defusing charges by the GOP -- and some 9/11 family members -- that the Biden administration was "soft" on murderous terrorists.
But now, the secretary's move--and the GOP attacks that preceded it--are the focus of a new court challenge that threatens to throw yet another legal monkey wrench into the seemingly endless 9/11 cases. According to a top legal expert, it could also force Austin himself to take the witness stand.
In still sealed court papers filed on Monday, the lawyer for one of the 9/11 defendants argues that Austin's extraordinary intervention in the case must be overturned because it was taken in response to political pressure from Congress and therefore constitutes "unlawful" command influence over a military proceeding.
"This is a clear example of political influence," said James Connell, the lawyer for Ammar al Baluchi, one of the accused 9/11 defendants who allegedly helped finance the attack and also happens to be KSM's nephew. (The motion is not yet public -- it first must be cleared by military authorities -- but Connell confirmed the filing to SpyTalk and said it includes a demand that Austin and the convening authority who the secretary removed, retired Brig. Gen. Escallier, testify about how and why key decisions about the plea bargain were made.)
The prohibition on "unlawful" command influence -- essentially barring military commanders from improperly influencing judicial proceedings -- is enshrined in the U.S. Uniform Code of Military Justice and was written into the law passed by Congress in 2009 creating the military commissions overseeing the 9/11 case in Guantánamo.
But establishing exactly what constitutes "unlawful" influence or the appearance of unlawful influence can be tricky and is currently at issue in the U.S. Court of Appeals for the District of Columbia Circuit in a case involving former U.S. Army soldier Bowe Bergdahl. (Bergdahl, who walked off his post in Afghanistan in 2009 and was held captive by the Taliban for five years, was prosecuted after Senator John McCain, who was chairman of the Senate Armed Services Committee at the time, said he was "clearly a deserter" and threatened to hold a committee hearing if he was not punished. )
Eugene R. Fidell, who teaches military law at Yale Law School and has represented Bergdahl since 2014, said the issue of whether unlawful influence occurred in the 9/11 military commission case is serious and could require live testimony from Austin and others, as well as the production of pertinent documents, to determine what influenced his decision to intervene.
"You can't tell whether there was unlawful influence without discovery," Fidell said in an interview. "Based on what is currently known, defense counsel certainly have strong reason to pursue the issue and get to the bottom of things."
Asked for comment on the motion alleging "unlawful" command influence by the secretary, and whether Austin or his staff had communications with members of Congress or the Biden White House about his decision, a Defense Department spokesperson emailed: "We are not going to respond to any potential court filing directly, as the 9/11 military commissions case is in active litigation and we will let that process play out. Nor are we going to get into the background of who said what, when. But, as we have said, the Secretary believes that a decision of this magnitude should rest with him, and he acted accordingly. He exercised his own independent judgment in making this decision."
The spokesperson continued: "Remember, the Secretary has long believed that the families of the victims, our service members, and the American public deserve the opportunity to see military commission trials carried out in this case. The White House and Department of Defense were of course in touch, as we are on a variety of issues every day, as appropriate."
But if Austin's goal is to see the military commission case against KSM and his co-defendants carried to trial it remains far from clear when, or even whether, that can take place. The case accusing them of committing the worst terror attack in U.S. history has dragged on for well over a decade, in large part because of endless complications arising from the fact that KSM and some of the other defendants were tortured at CIA black site prisons, making their subsequent confessions legally problematic at best.
Faced with multiple legal hurdles in bringing the case to trial, prosecutors at Guantánamoinitiated plea negotiations with lawyers for the 9/11 conspirators last year, finally agreeing last month to a deal under which KSM and two of his co-defendants, Walid bin Attach and Mustafa al-Hawsawi, would plead guilty to the murder of 2,976 people in exchange for the government's agreement not to pursue the death penalty.
But by revoking the agreement, Austin has now given the defense lawyers yet another avenue to further prolong the case given that any ruling by the military commission court in Guantánamo on unlawful command influence can later be appealed by either side to the federal courts in Washington.
More Delays
"You've tacked on another year or two" to legal challenges over the case, said Fidell. (In another potential sign of further delays, the judge overseeing the case, Col. Matthew McCall, asked the parties on Monday to file briefs on whether Austin, as the "superior convening authority" overseeing the casehad the authority to take the action he did.)
Austin's move to block the plea deal also cuts off one opportunity that had been opened up under the proposed agreement: a chance for the families of 9/11 victims to pose questions to the terrorist conspirators about why and how they pulled off their hijacking of commercial airplanes that crashed into the World Trade Towers, the Pentagon and a field in Pennsylvania.
That prospect has taken on new significance in recent weeks amid disclosures that lawyers for the 9/11 families have obtained new evidence -- unavailable to the federal commission that investigated the attacks two decades ago -- pointing to a possible Saudi support structure for two of the 9/11 hijackers in Southern California.
But Austin's intervention essentially removes "the best chance" the 9/11 families would have had to get answers from KSM and the other co-conspirators about what they might have known about such help from possible Saudi actors, said Connell, the defense lawyer who filed the motion this week on "unlawful" command influence. "It's a terrible irony" that now won't happen -- unless Austin's decision is reversed, he said.
This article first appeared on Spytalk.co.
