A military judge overseeing the cases against Khalid Sheikh Mohammed and two others accused of plotting the 9/11 attacks will decide if it was legal for Defense Secretary Lloyd Austin to rescind plea agreements that would have spared them the death penalty, a move that drew praise among victims’ families and blowback from critics of the Pentagon’s judicial proceedings at Guantánamo Bay, Cuba. The judge, Air Force Col. Matthew McCall, issued his order Monday, the Washington Post reports. It means the years-long effort to prosecute Mohammed and his alleged accomplices, Walid bin Attash and Mustafa al-Hawsawi, for the murders of nearly 3,000 people on Sept. 11, 2001, could face another extended delay as lawyers for the three men and the prosecution focus on the propriety of Austin’s 11th-hour maneuver.
The Guantánamo military commissions have been bogged down for years amid disputes over government secrecy, conflicts of interest and the documented U.S. torture of many defendants. Observers of the war court viewed the deals as a way of providing overdue resolution and some measure of justice for those killed in the deadliest attack on U.S. soil and the ensuing 20 years of war. Austin, a retired Army general who led troops in combat after 9/11, has said he believes that “the families of the victims, our service members and the American public deserve the opportunity” to see the cases go to trial. He intervened in the cases Aug. 2, 48 hours after the Defense Department announced that a senior official overseeing the Guantánamo proceedings had entered into pretrial agreements with the three men. McCall ordered both the prosecution and the defense to submit written briefs by Aug. 20 on whether it was within Austin’s authority under the laws governing the military commissions to revoke deals already agreed to by all parties. The Pentagon, citing the exercise of Austin’s “own independent judgment,” said in a statement that “we believe he acted lawfully.”
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