Two major decisions jolted the case against the alleged masterminds of the Sept. 11 attacks this summer: an agreement that exchanged life sentences for guilty pleas, and its reversal by Defense Secretary Lloyd J. Austin II.
Austin revoked the agreement days after the retired general he put in charge of the process signed it, saying that his only motivation for doing so was to make sure there would eventually be a trial for the man accused of masterminding the attacks, Khalid Shaikh Mohammed, and his co-defendants.
But what happens next in the case is up to the military judge, Col. Matthew N. McCall, who must resolve a number of questions, the New York Times reports. Do the rules allow Austin to revoke an agreement after it was signed, sealed and delivered to the court? Did the manner in which he did it create the appearance of unlawful influence?
Five weeks of pretrial hearings are scheduled to begin on Monday. But the question of the plea might not come up until October. Prosecutors have lined up two weeks of witnesses to testify on a challenge to the case by the lawyers for the one defendant who did not sign the agreement.
Defense lawyers for the three men who signed the agreement argue that Mr. Austin acted too late, and that the plea agreements are essentially still valid contracts. They want the judge to rule that Austin was wrong and to take the first steps toward a sentencing hearing that could happen next year. The judge could hear arguments on the question in the next hearings, rule on the spot or take his time before acting. His ruling ultimately could kick off appeals in higher courts.
The court could also examine whether Austin was unlawfully influenced by outside factors when he revoked the plea agreement two days after it was signed. Austin said he was acting out of a personal belief that there should be a trial. In the intervening days, however, two congressional committees opened an investigation into the plea deal and political leaders denounced it, as did some families of those killed on Sept. 11.
In this case and in military justice in general, a judge can dismiss a case or the death penalty as a possible punishment for even an appearance of “unlawful influence” to restore faith in the process and the independence of the judiciary. In this instance, the judge could also essentially reinstate the plea agreement through a finding that Mr. Austin did not have the authority to rescind it.
But the judge has also made clear he wants to continue hearing evidence and arguments to resolve issues that have delayed the start of the death-penalty case for a dozen years.
The case has been in pretrial hearings since 2012. Four successive military judges have wrestled with the rules and evidence in the trial at Guantánamo Bay’s special tribunals, which the Bush administration created in response to the attacks that killed nearly 3,000 people in New York, at the Pentagon and in Pennsylvania on Sept. 11, 2001.
One topic is whether national security restrictions on the defense lawyers’ ability to investigate and acquire evidence prevent the defendants from having a fair trial. Another is the confessions by the defendants that were obtained during interrogations at Guantánamo Bay in 2007, after the men had been tortured while they were in C.I.A. custody. The judge has spent years hearing evidence about what happened before those confessions to decide whether they were tainted by torture.
One defense team has argued that the case should be dismissed entirely using a rarely successful legal doctrine involving “outrageous government conduct.”
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