5 takeaways on the unraveling of a 9/11 deal

The abrupt turnaround of a plea deal in the Sept. 11 case last week has left victims’ families reeling while raising political questions for the Pentagon and Biden administration.

Defense Secretary Lloyd Austin’s Friday cancellation of the deal that would have taken the death penalty off the table for three prisoners accused of helping to plot the Sept. 11, 2001, terrorist attacks -- an agreement announced only two days prior -- was described as “emotional whiplash” for family members who supported the plan. 

The plea agreement was meant to resolve the case with lifetime sentences for the man accused of planning the attacks, Khalid Shaikh Mohammed, and two accused accomplices.

But blowback from Republicans and victims’ families, who bashed the plea deal as too lenient for the defendants, coupled with the administration's sudden reversal, has put the case back in the public spotlight.

Here are five key takeaways and questions that remain.

9/11 deal tried to settle long-delayed case

The agreement struck between the Office of Military Commissions between Mohammad, also known as KSM, and two of his accomplices involved life sentences, allowing them to avoid the death penalty.

The deals were an effort to put to rest long-running cases that some doubt will ever reach an end.

KSM is accused of being the chief mastermind behind the deadly 9/11 attacks that killed nearly 3,000 people. Two of his accomplices that struck the deal are also accused of helping to plot the attacks, while another two prisoners have been charged in the case but did not reach the plea deal last week.

All five defendants have been held since the early 2000s and are now detained at the Guantanamo Bay facility in Cuba. They were charged in 2008 and again in 2012 but have been stuck in pretrial proceedings.

Retired Brig. Gen. Susan Escallier, a lawyer and the Pentagon official responsible for military commissions, signed off on the plea agreement with the three men, with the contents mostly secret. It followed the 51st round of pretrial hearings, a closed court session involving no defendants.

Shortly after Escallier approved the deal, family members of the 9/11 victims were notified via phone calls, with one such individual told the agreement was “the best worst option,” The New York Times reported. 

And in a letter to the relatives, survivors of the attacks and other victims, such as New York City firefighters, prosecutors said they had not reached the decision “lightly.”

Austin was flying home from the Philippines after a weeklong trip to Asia, and learned of the deal towards the end of the flight. 

Austin’s order, released Friday night, nullified the earlier agreements.

Austin has the ultimate authority above Escallier, the head of the Convening Authority at the Pentagon, which oversees the Office of the Military Commissions established after 9/11 to prosecute foreign individuals related to terrorism charges.

Republican backlash

Just hours after the plea deal was announced late Wednesday, Republicans criticized the Biden administration and accused them of failing to stand up to terrorists. 

Speaker Mike Johnson (R-La.) and Senate Minority Leader Mitch McConell (R-Ky.) both released statements criticizing the deal and said it would embolden terrorists.

Rep. Mike Rogers (R-Ala), chairman of the House Armed Services Committee, sent a letter to Austin demanding answers about how the plea deal was reached. 

Rep. James Comer (R-Ky.), chair of the House Oversight Committee, opened a formal investigation of the plea deal and sent a letter to President Biden asking for relevant records, communications and information.

After Austin revoked the plea deal, Sen. Tom Cotton (R-Ark.) and McConnell released a joint statement saying they were “glad” the defense secretary “came to his senses,” but threatened to follow through with legislation if another deal is made.

“The President must know that we continue to watch this situation closely,” the lawmakers wrote in the statement. “The Justice for 9/11 Act is introduced, and if the Administration ever changes course, we stand ready to overturn any future cowardly plea deals with the murderous mastermind of that tragic day.”

Some Democrats, however, are upset over the Austin reversal.

“I urge Secretary Austin to reverse this deeply disappointing decision, which denies finality and justice to 9/11 families and exposes yet again the lack of independence that has haunted the military commissions from the outset,” wrote Sen. Dick Durbin (D-Ill.) on social media platform X.

Austin surprised by deal

Austin was “surprised” by the U.S. military commission’s decision, according to Pentagon deputy press secretary Sabrina Singh.

The Pentagon chief “was certainly surprised as we all were,” Singh told reporters Monday. She later added: “This is a case of such significance that the secretary felt it was appropriate for the authority to rest with him.”

Austin’s timing, after Republicans and victims’ families lambasted the administration and ahead of a contentious presidential election, raised questions about whether the move was largely politically motivated. 

The White House has dodged questions over what role it may have played in Austin’s decision to rescind the plea deal, with national security spokesperson John Kirby on Sunday saying that the move was not Biden’s to make. 

“This was a decision made by the secretary of Defense. It was an independent decision by him, certainly within his authorities, as in the chain of command at the Defense Department,” Kirby told Jacqui Heinrich on “Fox News Sunday.”

Singh also said that Austin reached the decision on his own and said she was not aware of any conversations with Biden. 

“This is not something that the secretary was consulted on,” Singh said. “We were not aware that the prosecution or defense would enter the terms of the plea agreement.”

Whiplash for families

While some family members of the 9/11 victims seemed pleased with the administration’s decision, those who supported the deal were stunned by the reversal.

“The men who perpetrated the death of thousands on September 11th; men who have never uttered a word of remorse, should be justly punished. But what happened this week to 9/11 families is emotional whiplash,” the group September 11th Families for Peaceful Tomorrows, which supported the plea deal, said in a statement. 

While the plea deal was not the outcome originally hoped for, it offered a path to finality. The group said it was upended in a move that both “betrays 9/11 family members” and “undermines the very government attorneys charged with prosecuting this case.”

“Our larger concerns today are for this country, for the future of our children and grandchildren when legal principles are compromised,” they wrote. 

Other families had earlier expressed anger with the deal, saying it circumvents their desire for a trial to show in detail what happened in the 9/11 attacks, which saw hijacked planes crash into the Twin Towers in New York City, a field in Shanksville, Pa., and the Pentagon. 

One group of family members, 9/11Justice, were troubled about not being able to obtain any information from KSM and the other two defendants to help their ongoing civil case that seeks to link Saudi Arabia to the Sept. 11, 2001, attacks.

Terry Strada, national chair of 9/11 Families United, said the Austin revocation was “a relief for many families like mine, who have tirelessly fought for justice and to have our voices heard.”

“Khalid Sheikh Mohammed and his associates should be shown the same mercy they showed my husband and the thousands of others they brutally murdered on 9/11—none,” she said in a statement. “We are grateful to Secretary Austin for doing the right thing and listening to the voices of the 9/11 community.”

Strada’s organization also seeks justice against Saudi Arabia and supports a bill that would allow plaintiffs to more easily sue any person or entity, including another country, for aiding and abetting terrorism.

The American Civil Liberties Union (ACLU) is also against Austin revoking the plea deal, saying he “prevented a guilty verdict.”

“This rash act also violates the law, and we will challenge it in court,” the ACLU said in a statement, saying politics had “dishonored an agreement reached after years of hard work and painstaking consultation by all the parties involved.”

Case likely to be mired in pretrial proceedings

It’s not clear how the case will play out now, but the military commission has for years struggled to bring the defendants to a trial and the case may get pushed back into lengthy legal proceedings.

The military commission has also generally struggled to secure convictions. Just eight people have been convicted of terrorism-related cases in the post-9/11 commission, and four of those have been overturned. 

Only one person has ever been convicted related to the 9/11 cases, Zacarias Moussaoui, known as the 20th hijacker, who was detained in August 2001 before the plane attacks.

In KSM’s case, the U.S. has been accused of torturing him at Guantanamo Bay, including with waterboarding. Any evidence from interrogations may not be admissible in court.

While the Pentagon has acknowledged the years of delays in this case, Austin wants a trial, Singh said Monday.

“He believes that the families and the American public deserves the opportunity to see military commission trials carried out in this case,” she said. “If we can move to the trials - and that has been ongoing and has been many, many years - but that is what he believes is the best course of action.”