U.S. can revoke plea deal for accused 9/11 plotter, appeals court rules

A divided federal appeals court ruled Friday that the U.S. government can throw out plea deals with Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11, 2001, terrorist attacks, and two others who agreed last July to plead guilty in exchange for life sentences, upholding a Biden administration request and leaving next steps to the Trump administration.

In a 2-1 decision, a U.S. Court of Appeals for the District of Columbia Circuit panel ruled that then-Defense Secretary Lloyd Austin “had full legal authority” to cancel the Aug. 2 agreement, two days after it was reached. The deal had removed the possibility of the death penalty. The panel reversed lower military courts and gave 21 days for the defendants – Mohammad, Walid bin Attash and Mustafa al-Hawsawi – to appeal.

“The Secretary acted within the bounds of his legal authority, and we decline to second-guess his judgment,” U.S. Appeals Court Judges Patricia A. Millett and Neomi Rao wrote in a 50-page opinion, over a dissent from Judge Robert L. Wilkins. The ruling cited the “unique and important national security interests at stake, as well as the significant public interest in the resolution of these proceedings.”

The opinion marks the latest setback for the trouble-plagued military commission system set up to secure justice for the 9/11 attacks and to try suspects at the military prison at Guantánamo Bay, Cuba. Mohammed’s case remains mired in bureaucratic and legal battles that include questions about the admissibility of evidence obtained through torture after he was captured in 2003 and before he was moved to the prison in 2006, charged in its special war court in 2008 and again in 2011.

The deal for lifetime sentences last year angered some victims’ families, Republican lawmakers and New York City’s firefighters union. Other relatives of victims supported the agreement, which would have provided some finality in cases that legal critics say probably never will reach trial.

Mohammed is the accused al-Qaeda mastermind of the plot that crashed hijacked airliners into the World Trade Center towers in New York City and the Pentagon. A fourth plane crashed in Pennsylvania after passengers learned of the other attacks. Under the terms of the plea deal, the men would have been obligated to answer questions about the attacks.

Government attorneys argued that the defense secretary has ultimate authority over the tribunals and allowed the plea talk process to run its course, rather than risk being accused of prejudicing defendants by wielding “unlawful influence” over their cases. Austin said in his Aug. 2 order that responsibility for such a significant decision should rest with the defense secretary.

The case marked the first time that the U.S. government sought a writ of mandamus – an extraordinary judicial order outside the normal course of litigation from the appeals court in D.C. – over roughly 24 years of litigation involving detainees brought before military tribunals since the terrorist attacks that killed nearly 3,000 people. Detainees have sought such relief 31 times, government attorneys said in arguments in January.

In a 75-page dissent, Wilkins criticized the majority ruling as “stunning,” saying it broke with precedent and substituted “its own read of contract principles (divorced from the criminal and military justice context) for the weight of authority” of prior military and federal court rulings.

“The government has not come within a country mile of proving clearly and indisputably that the Military Judge erred, much less committed clear error when he applied the withdrawal regulation,” Wilkins wrote.

“Settled law requires that courts like ours defer to the decisions of military courts, particularly when (like here) those courts interpret military rules,” he continued. “Yet such deference is conspicuously absent from the majority’s opinion. No matter how high the national interest, both the governing military rule and our precedent require more.”

Wilkins cited the determination in November by the judge in the Guantánamo case, Col. Matthew N. McCall, that Austin’s attempt to rescind the plea deals had come too late because defendants had begun performing the deals’ requirements, a ruling upheld in December by a Pentagon appeals panel. For example, the defense refrained from questioning a government witness at a pre-trial suppression hearing.

J. Wells Dixon, a veteran Guantánamo defense attorney at the Center for Constitutional Rights, called the Biden administration’s invalidation of the plea deals a “betrayal” of victims’ families. In a statement, Dixon said the appeals court decision “will ensure nothing but a continued lack of justice and accountability for everyone involved in the 9/11 military trial at Guantánamo,” adding, “The only way to resolve this case is for the Trump administration to succeed where every prior administration has failed and negotiate new deals with the 9/11 defendants that will finally close the ‘War on Terror’ prison at Guantánamo.”

At its peak, the prison housed more than 700 men, of whom 15 remain. Last month, the Trump administration reportedly was preparing to begin transferring potentially thousands of foreigners who are in the United States illegally to the U.S. military base as part of its migrant crackdown.

Trump Defense Secretary Pete Hegseth in February looked in on Mohammed at the prison, saying that he agreed with Austin that Mohammed deserved the death penalty, “and I hope he finds it soon, through that system,” Fox News reported.