Defense Secretary Lloyd Austin’s decision to revoke a plea deal for 9/11 defendants likely came too late, military law experts told the Daily Caller News Foundation.
The plea deal for alleged 9/11 mastermind Khalid Sheikh Mohammed and two alleged accomplices faced prompt backlash from families of victims and lawmakers when it was announced July 31. Days later, Austin revoked the deal in a memo, writing that the responsibility should rest with him in light of the “significance of the decision.”
Now, a judge is weighing whether Austin had the authority to reverse the deal, the New York Times reported. (RELATED: 9/11 Widow Slams Biden Admin’s ‘Outrageous’ Attempted Plea Deals For Gitmo Terrorists)
“He’s reaching in too late in the game, after the deal is already negotiated and approved,” Gary Barthel, founder of the Military Law Center, told the DCNF.
Last year, Austin designated retired Brigadier General Susan Escallie to serve as the Convening Authority for Military Commissions. In that position, she “is empowered to convene military commissions, refer charges to trial, negotiate pre-trial agreements, and review records of trial.”
Once the convening authority approves an agreement worked out by the parties, it is generally considered a “done deal,” Barthel explained. Austin could have withheld the case from her authority earlier and brought it to his level to handle issues himself, Barthel said, but instead he just “issued an edict that said these plea agreements are improper.”
NEW YORK, NEW YORK – SEPTEMBER 11: A memorial for NYPD victims of the 9/11 terror attack are seen during a the annual 9/11 Commemoration Ceremony at the National 9/11 Memorial and Museum on September 11, 2024 in New York City. U.S. President Joe Biden, Democratic presidential nominee, U.S. Vice President Kamala Harris, Republican presidential nominee, former U.S. President Donald Trump and Republican vice presidential nominee, U.S. Sen. J.D. Vance (R-OH) joined family and friends at Ground Zero honoring the lives of their loved ones on the 23rd anniversary of the terror attacks of September 11, 2001, at the World Trade Center. Biden and Harris will also attend ceremonies at the Flight 93 National Memorial in Shanksville, Pa, and the Pentagon in Arlington, Va., making visits to all three sites of the terror attacks that killed nearly 3,000 people. (Photo by Michael M. Santiago/Getty Images)
“Effective immediately, I hereby withdraw your authority in the above-referenced case to enter into a pre-trial agreement and reserve such authority to myself,” he wrote in his Aug. 2 memo.
In an order, the judge directed parties to consider multiple questions about whether Austin’s action was lawful.
The government in a Sept. 6 filing that Austin “had ample authority under the relevant statutes, rules, and regulations to withhold responsibility over pretrial agreements from Ms. Escallier and reserve that responsibility to himself.”
“The Secretary has principal statutory authority over this process from beginning to end,” the filing states.
Defense attorneys are urging the judge to find the plea deals are still valid, arguing Austin made his move too late, according to the NYT.
Barthel says it seems like Austin was “out of the loop.”
The plea deal did take Austin by surprise, as he only learned it had been signed after the fact, according to the NYT.
Imposing his authority after the plea agreements are signed would likely be considered “undue influence,” Barthel said, which could lead to the judge reinstating the deal.
9/11 Widow Slams Biden Admin’s Attempted Plea Deals For Gitmo Terrorists pic.twitter.com/ksoYbm27BH
— Daily Caller (@DailyCaller) September 11, 2024
Austin defended his decision at an event Aug. 6, stating he has “long believed that the families of the victims, our service members, and the American public deserve the opportunity to see military commissions, commission trials carried out,” according to the Associated Press.
Eugene R. Fidell, who teaches military law at Yale Law School, likewise told the DCNF that Austin’s decision was made too late.
“If he was this worked up about it, then he shouldn’t have designated somebody else to decide the cases,” Fidell said.
The plea deal itself remains sealed, though multiple media organizations motioned to make it public.
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