Col. Matthew N. McCall overturned a decision by Defense Secretary Lloyd Austin reversing three pretrial agreements signed by a senior retired general he put in charge of military commissions at Guantanamo Bay, saying Austin did not have the power to do so and that he had acted too late.
McCall said he would advance plans to have Mohammed and co-defendants Walid bin Attash and Mustafa al-Hawsawi, all detained at the U.S. Naval Station at Guantanamo Bay on the southeastern coast of Cuba, brought before his court individually to enter their pleas in the long-running case.
Prosecutors who negotiated the deals with the three defendants said the intention was to deliver a measure of "finality and justice" in a case that has dragged on for 12 years since Mohammed and four others were charged with conspiring in the attacks in which almost 3,000 people were killed on Sept. 11, 2001.
McCall ruled Austin was not empowered to reverse a decision of the general to whom he had delegated authority just because he disagreed with "how that discretion was utilized" and that his appointee "possessed the legal authority" to sign what McCall said were "enforceable contracts with the classic elements of offer, acceptance and consideration."
Pentagon spokesman Maj. Gen. Pat Ryder said Wednesday that "the Secretary determined that the decision on whether to enter into a pretrial agreement in the 9/11 military commission cases is one of such significance that it was appropriate for responsibility to rest with him as the superior convening authority."
"We are reviewing the decision and don't have anything further at this time," he said in a statement.
The deals, which were revealed in the summer, sparked an angry backlash from Republicans and Democrats, as well 9/11 victims' groups that have sought for those responsible for the loss of their loved ones to face the death penalty.
McCall, who made his decision after arriving at Guantánamo Bay to resume pretrial hearings involving a fourth defendant, Ammar al-Baluchi, who did not reach a plea deal, also warned that clauses in Mohammed and Hawsawi's agreements permitted for their trials to proceed in the event the government reneged on its side of the deal -- but with the death penalty off the table.
The case of a fifth defendant, Ramzi bin al-Shibh, remains in limbo, as he has been assessed as incompetent to stand trial or negotiate a plea agreement.
On Thursday, a forensic psychiatrist was due to testify on the highly consequential issue of whether confessions of the defendants made in 2007, were made freely or obtained by torture during years of detention in clandestine CIA prisons.
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