A case that had mostly drifted from public consciousness in 12 years of proceedings is back in the spotlight and no closer to trial.
In the space of three days last week, the 9/11 case was rocked by two decisions that stunned victims’ families and jolted a political debate.
First, a Pentagon official authorised a plea agreement meant to resolve the case with lifetime sentences. Then, Defence Secretary Lloyd Austin abruptly cancelled the deal, reviving the possibility that the man accused of planning the attacks, Khalid Sheikh Mohammed, and two accused accomplices could someday face a death penalty trial.
Suddenly, a case that had mostly drifted from public consciousness in 12 years of pretrial proceedings was back in the spotlight and no closer to the trial that some relatives of the nearly 3000 victims had been aching for at Guantánamo Bay.
This account of those fateful three days is based on interviews and conversations with Pentagon officials, 9/11 family members and parties to the case.
Wednesday, July 31
There was no hint of what would come on this day in the mostly forgotten case at Guantánamo Bay.
The court was in a closed hearing – no public, no defendants – as a retired Army officer testified about his time in charge of the secret prison where the defendants were held, beginning in 2006. It was the 51st round of pretrial hearings.
But at some point, in an office near the Pentagon, a senior Defence Department official who is responsible for military commissions approved a plea agreement with Mohammed and the two accused of being accomplices.
The official, Susan K. Escallier, a retired brigadier general, was a lawyer and had been in the civilian role for about a year.
The contents of the deal are secret, aside from the fundamental reason for a plea agreement in a capital case: The government says it will not seek the death penalty in exchange for the defendants giving up the right to appeal their conviction.
Soon after she signed it, people from the war crimes prosecutor’s office began calling family members of the 2976 people who were killed in the attacks in New York, at the Pentagon and in Pennsylvania on September 11, 2001. One family member was asked to keep the call confidential and told the agreement was “the best worst option”.
Prosecutors also sent a letter to the victims’ relatives, using a roster of names, email addresses and phone numbers of family members, survivors of the attacks and other victims. They had not reached the decision “lightly,” the prosecutors wrote. “It is our collective, reasoned and good-faith judgment that this resolution is the best path to finality and justice in this case.”
Grief counsellors were on standby for those seeking solace, the letter said.
At the time, Austin was flying home from the Philippines, wrapping up a weeklong trip to Asia. Toward the end of his 16-hour flight, at about 3pm Washington time, he learned that the agreement had just been signed – and that prosecutors had prepared a letter for family members.
In two hours, the Pentagon would release a two-paragraph statement announcing the deal. “The specific terms and conditions of the pretrial agreements are not available to the public at this time,” it said.
Austin had not seen the agreement itself and was surprised by the decision. He directed his staff to look into the Defence Department’s options.
By law, the military commissions are overseen by the convening authority, a role given to the defence secretary. But Austin, like all of his predecessors, had delegated that oversight role to an ostensibly independent lawyer. He appointed Escallier, who had served 32 years in the Army.
The convening authority approves cases for prosecution and has disapproved some, including charges against a man who was tortured in military custody. He or she decides which cases go forward with the possibility of the death penalty and negotiates or approves plea agreements.
On board his flight, Austin was dealing with the latest crisis in the Middle East: Israel’s assassination in Tehran, Iran’s capital, of a top leader of Hamas, escalating threats to US military personnel in the region and concerns about a wider war. He had a call with Israeli Defence Minister Yoav Gallant.
He also discussed the Middle East with Jake Sullivan, the president’s national security adviser, before word reached the plane that the deal had been signed.
“The issue did not come up,” said a senior Defence Department official, who, like others, spoke on the condition of anonymity because of the sensitivity of the subject. Defence officials were aware that Mohammed and the other two men had signed the agreements; they did not anticipate that Escallier would sign them so soon.
Around the time Austin’s flight landed, Senator Mitch McConnell, R-Ky., the Republican leader, condemned the deal as “a revolting abdication of the government’s responsibility to defend America and provide justice”.
“In the same week that Israel eliminated some of Iran’s most trusted terrorist proxies, the administration’s decision to spare these mass murderers from the death penalty is an especially bitter pill,” he said in a statement.
The White House said in a statement that it “had played no role in the process.” But it said it would start asking questions.
Thursday, August 1
Conflicting emotions rippled through the community of 9/11 families.
Kathleen Vigiano, whose New York Police detective husband, Joseph, and firefighter brother-in-law, John, were killed at the World Trade Centre, said she was “mostly angry” over what had happened.
Vigiano, a retired police officer, had received a call from prosecutors she had known through the years, explaining the deal. But still she wanted a trial and the death penalty to achieve justice.
Terry Rockefeller, whose sister Laura was killed in the towers, felt relieved. She believes that the case is forever tarnished by torture and, as a member of activist group September 11th Families for Peaceful Tomorrows, that a life sentence with guilty pleas and a public sentencing hearing are the only possible resolution.
At Guantánamo Bay, prosecutor Clayton G. Trivett III formally notified the judge in the case, Colonel Matthew N. McCall, that the agreement had been reached and that the sides were eager to move forward with entering pleas in court.
McCall had been edging closer to making decisions about whether crucial evidence was tainted by torture.
But, with plea deals signed by three of the four defendants in the case, the judge was eager to receive copies to review them, “with alacrity,” he said.
The agreements were delivered to the court and the judge agreed to seal them until a jury was empanelled, perhaps next year.
He also agreed to work through the weekend to prepare questions for the defendants about their understanding of the agreement, to determine whether each plea was voluntary. Both defence and prosecution attorneys were urging him to move soon and to take Mohammed’s first, possibly on August 14.
By early Thursday afternoon, the issue had begun to energise members of Congress.
“Joe Biden and Kamala Harris allowing 9/11 terrorists to escape the death penalty is a disgrace,” Senator Tom Cotton, R-Ark., said on social media. “The Biden-Harris administration will always choose the side of killers and criminals over law-abiding Americans.”
Within a day, he would introduce the Justice for 9/11 Act. The idea was to have Congress reinstate the death penalty in the case through legislation.
The House Oversight Committee was also preparing to open an investigation into whether, in a process that was supposed to be free of political influence, the White House had a role in Escallier’s decision. The next day, Representative James Comer, R-Ky., the Republican chair, wrote Biden seeking copies of the agreement and all communications between the White House and the Defence Department.
At the White House, Sullivan was on the defensive.
“We had no role in that process,” he told reporters. “The president had no role. The vice president had no role. I had no role. The White House had no role.”
The White House was consulting “officials and lawyers at the Department of Defence on this matter,” he said. “Those consultations are ongoing, and I have nothing more to add at this time.”
That night, however, the news shifted to a more immediate drama. Biden and Harris went to Joint Base Andrews in Maryland to greet three Americans freed from Russia in an exchange involving 24 prisoners from six different nations.
Friday, August 2
By Friday, a backlash was building, said Terry Strada of 9/11 Families United, who has led the charge for years on efforts to hold the Saudis accountable in the terrorist attacks.
In interview after interview, she was registering her opposition to the deal. Of particular concern, she said, was that the announcement of the plea agreement coincided with the prisoner swap. If Mohammed and his accused accomplices were sentenced to life, could they not be released someday in a deal?
“These defendants, they showed no mercy for our loved ones,” said Strada, whose husband, Tom, a bond broker, was killed at the twin towers. “They showed no mercy for my husband.” She wanted “the death penalty back on the table because it fits the crime”.
At the Pentagon, members of the defence secretary’s team came up with a solution. Austin cancelled the agreement in a two-paragraph memo with two steps.
Step 1: He stripped Escallier of the power in the 9/11 case to reach plea agreements and declared that he was the “superior convening authority”.
Step 2: He used that power to “hereby withdraw” the plea deals with Mohammed and the other two men.
Right after Austin signed the memo, Escallier was notified that she had been relieved of the authority to negotiate plea deals in the 9/11 case, according to a defence official.
She remains essentially a junior convening authority with the power to decide other matters in the running of the court – such as funding overtime for the lawyers who specialise in death-penalty cases and deciding what to do about a defendant in the case who has been deemed incompetent to stand trial.
Austin still had not seen the plea deal because it was under seal at the Guantánamo court, according to the senior defence official.
At Guantánamo, some prosecutors and defence lawyers learned of the decision in a news report that included a copy of the memo.
A social media post appeared on Vigiano’s phone as she was driving home from a birthday celebration for her mother-in-law, Jeanette.
“BREAKING: The US defence secretary revoked a plea deal with three men accused of plotting Sept. 11, effectively reinstating it as a death-penalty case.”
She declared it the best birthday present her mother-in-law could have received.
Saturday, August 3
Family members who supported the deal were shocked by the reversal.
“What happened this week to 9/11 families is emotional whiplash,” September 11th Families for Peaceful Tomorrows, which had supported the deal, said in a statement, adding: “Our larger concerns today are for this country, for the future of our children and grandchildren when legal principles are compromised.”
The American Civil Liberties Union, which funds civilian lawyers on Mohammed’s defence team, also weighed in.
“Secretary Austin is foolhardy in throwing away a bird in the hand to chase a death penalty case he will never achieve in this military commissions,” said Anthony D. Romero, the group’s executive director.
Joel Shapiro, whose wife, Sareve Dukat, was killed at the World Trade Centre, is suspicious. “I believe Lloyd Austin’s decision is strictly motivated by election-year politics,” he said. “The agreement would have resulted in a new flashpoint for contentious debate.”
At the Defence Department, officials pointed out that in 2022, Austin had declined to sign off on conditions sought by the 9/11 defendants during an earlier stage of the plea negotiations.
“He has said all along that he believes that the families of the victims, and the American public more generally, must have the opportunity to see these military commissions trials carried out in these cases,” the senior defence official said.
By the time Escallier took charge, in October 2023, the White House had also declined to endorse them.
Over the weekend, prosecution and defence lawyers were, as one put it, “pounding the law books” to determine their next steps.
This article originally appeared in The New York Times
Written by: Carol Rosenberg and Eric Schmitt
Photographs by: Schwartz Taylor, Elizabeth D. Herman and Kenny Holston
©2024 THE NEW YORK TIMES