FORT MEADE, Md. – A lawyer for news organizations urged the U.S. military commission at Guantanamo Bay to unseal the plea deal struck with accused 9/11 mastermind Khalid Sheikh Mohammed and two others, saying the public has a constitutional right and compelling need to follow one of the “most-disputed, debated, argued-about prosecutions that have happened in this country."
The plea agreement was reached in August by the three accused, their U.S. government prosecutors and the Guantanamo commission's top official, but it was abruptly revoked by Defense Secretary Lloyd Austin days after it became public. It has become one of the most fiercely debated chapters in more than a decade of military hearings related to the Sept. 11, 2001, attacks, which killed nearly 3,000 people and triggered long-running U.S. military invasions abroad.
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The plea agreement would have spared Mohammed and two co-defendants the risk of the death penalty, in exchange for their guilty pleas in the al-Qaida attacks.
After news of the deal broke, however, top Republican lawmakers denounced it and the White House expressed concerns. Families of the victims variously expressed shock and approval of the plea deal, which was aimed at resolving more than a decade of pre-trial hearings in a legally troubled case for the government.
Austin said in revoking the military commission's approval of the plea bargain that he had decided responsibility for any such grave decision should rest with him as secretary of defense. Mohammed and the two co-defendants have filed challenges, saying Austin's action was illegal and that the actions by the Biden administration, lawmakers and others amounted to undue outside influence in the case.
Seven news organizations — Fox News, NBC, NPR, The Associated Press, The New York Times, The Washington Post and Univision — challenged the sealing of the plea deal.
Friday's hearing highlighted the ad hoc nature of the military commission, which U.S. leaders created to try accused violent extremists in the wake of the 2001 attacks. The lawyers and judge pivoted Friday between civilian and military legal precedents in arguing for and against making terms of the plea agreement public.
The hearing also highlighted the obstacles facing the public, including news organizations, in obtaining information about proceedings against the 9/11 defendants and the few dozen other remaining detainees at Guantanamo Bay, Cuba. In civilian courts, a plea agreement is traditionally a matter of public record.
Both defense and prosecution lawyers in the case asked the commission judge, Air Force Col. Matthew McCall, to deny the news organizations' request to make the plea deal public.
They argued that allowing the public to know all the terms of the deal that the government struck with defendants Mohammed, Walid bin Attash and Mustafa al-Hawsawi could wait. Prosecutors and defense lawyers offered different proposals for how long to wait — until after any rulings on challenges to Austin's overturning of the plea deal, or until after any military sentencing panel is ever seated in the case, or forever.
Prosecutors were concerned about an “oversaturation of information” about the men's willingness to plead guilty tainting any future sentencing panel, lead prosecutor Clay Trivett told McCall.
Defense lawyer Walter Ruiz, representing Hawsawi, said “press gluttony and greed” for profits was driving the news media request to make the terms public. Ruiz criticized news organizations for making the existence of the plea bargain public, and said they were seeking to add to “the very debate they helped to create that impacted this process.”
Lawyer David Schulz, representing the seven news outlets, argued that the Guantanamo court had failed to show any level of threat to the conduct of the 9/11 hearings that warranted hamstringing the public's legal rights to know what courts and the government at large are doing.
“It's just inappropriate to have a knee-jerk reaction and say, ‘Well, we have to keep all this from the press,’ Schulz told McCall. ”Particularly in this context ... of one of the most disputed, debated, argued-about prosecutions that have happened in this country involving ... the most horrendous crime that ever happened on American soil."
“People have a right to know what’s happening here, and they have a right to know now, not two or three years from now, or whatever," Schulz said.
McCall indicated a decision on the motion to unseal could come as soon as November.