After months of wrangling over the legitimacy of a plea deal in the Sept. 11 case, Defense Secretary Lloyd J. Austin III has stripped a senior official running the war crimes court of her authority to reach settlements in any cases at Guantánamo Bay.
Mr. Austin’s decision comes as government lawyers are trying to nullify a plea agreement in the Sept. 11, 2001, case.
On July 31, Mr. Austin’s appointee in charge of the court, Susan K. Escallier, approved a settlement that was reached by prosecutors across years of negotiations. But Mr. Austin said he was surprised by it and moved to rescind the deal, saying he strongly believed that the men accused of plotting the attacks that killed nearly 3,000 people should face a trial.
Now, in a memo dated Monday and obtained by The New York Times, Mr. Austin stripped Ms. Escallier of the authority to approve deals in the U.S.S. Cole and Bali bombing cases, “effective immediately.” In doing so, he has given himself the sole power to approve plea deals in the terrorism cases in the final months of the Biden administration.
Mr. Austin wanted to make sure “we aren’t surprised by anything for the remainder of the term,” said a senior Defense Department official, who spoke on the condition of anonymity to discuss a sensitive legal issue.
The move comes at an uncertain time for the 30 remaining detainees at Guantánamo Bay, a third of whom have been convicted or charged by military commission. Sixteen men at the prison, who have never been charged with crimes, have been approved for transfer to the custody of other nations if security arrangements can be made.
The Sept. 11 case is mostly in legal limbo as a higher court decides whether Mr. Austin had the authority to retroactively cancel the July 31 agreement with the man accused of being the mastermind of the plot, Khalid Shaikh Mohammed, and two co-defendants. Each man agreed to plead guilty to his role in the crime and waive appeals in exchange for life sentences rather than face a death penalty trial.
The case has been in pretrial proceedings since 2012 to resolve questions about the men’s torture in C.I.A. custody and other legal questions related to national security.
It is unclear why Mr. Austin decided to claw back authority in the Cole or Bali bombing cases. Neither was believed to be nearing deals. The prisoners in both cases had recently obtained new lead defense lawyers and, if talks were underway, it was unlikely that they had reached very far.
Ms. Escallier, a retired career Army lawyer and brigadier general, has not spoken publicly about her decision this summer to approve the plea agreements in Sept. 11 case. Her predecessor, a Trump administration appointee, authorized prosecutors to start those negotiations in March 2022. The talks stalled for a time over the Biden administration’s unwillingness to endorse certain conditions of confinement, forcing the two sides to return to talks late last year.
The U.S.S. Cole case has been in capital proceedings since 2011. It charges Abd al-Rahim al Nashiri, a Saudi citizen, with orchestrating the plot that killed 17 U.S. sailors. Col. Matthew S. Fitzgerald, the fourth military judge to preside in the case, has set a goal of starting the trial on Oct. 6, 2025, a week before the 25th anniversary of the attack.
Prosecutors in the Bali bombing case seek a life sentence for Encep Nurjaman, an Indonesian who is known as Hambali and the former leader of Southeast Asia’s Jemaah Islamiyah movement. His case is still in preliminary proceedings.
Earlier this year, two of his co-defendants pleaded guilty to terrorism related charges in exchange for repatriation to Malaysian custody. Under their deal, they agreed to cooperate with prosecutors and have already been deposed in case they have been transferred from Guantánamo by the time the trial begins.
As of Thursday, the Defense Department had not publicly disclosed Mr. Austin’s memo. It has been circulated among prosecution and defense lawyers in the Office of Military Commissions.
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