DC Circuit allows feds to withdraw from plea deal with accused 9/11 plotters

WASHINGTON (CN) — A D.C. Circuit panel ruled Friday that the United States can back out of a plea deal with the accused mastermind of the 9/11 attacks and his two co-defendants, setting back the already long-running case and opening the door for potential death sentences.

The three-judge panel ruled 2-1 to reverse findings by a military commission judge and the United States Court of Military Commission Review that former Secretary of Defense Lloyd Austin could not withdraw the deals as they were already in progress.

“The secretary of defense indisputably had legal authority to withdraw from the agreements; the plain and unambiguous text of the pretrial agreements shows that no performance of promises had begun; the government has no adequate alternative remedy to vindicate its interests; and the equities make issuance of the writs appropriate,” the panel wrote.

U.S. Circuit judges Patricia Millett and Neomi Rao — a Barack Obama and Donald Trump appointee, respectively — collectively wrote the panel’s 50-page opinion.

The government, through a Defense Department official known as a convening authority, appointed by then-Secretary Austin, entered into a plea deal with Khalid Sheikh Mohammed and co-defendants Walid bin Attash and Mustafa al Hawsawi, on July 31, 2024.

As part of the agreement, the defendants would accept sentences of life in prison and agree to an extended sentencing hearing where they would admit their roles in the attacks and be questioned directly by victims’ families.

In August 2023, Austin appointed Susan Escallier, a retired brigadier general and former Army lawyer, to negotiate the plea deal on the government’s behalf as the convening authority.

In exchange for taking the death penalty off the table, the defendants would have to agree to a stipulated set of facts about their involvement in the 9/11 attacks and drop their effort to suppress statements made in the aftermath of torture.

The parties signed the plea deal on July 31, 2024, to widespread scrutiny among the public and members of Congress — Republican senators Ted Cruz and Tom Cotton demanded the death penalty and called the plea deal an “insult” to victims — leading Austin to renounce the deal on Aug. 2, 2024.

In November, Military Commission Judge Matthew McCall ruled that the pretrial agreement was binding, finding it likely that Austin was aware of the negotiations’ progress before the plea agreement was signed. The Pentagon’s Court of Military Commission Review affirmed McCall’s ruling and found that performance of the agreement had already begun, making it binding.

Millett and Rao found McCall erred both in finding that Austin couldn’t claw back Escallier’s authority and in ruling that regardless, the secretary’s withdrawal from the pretrial agreements came too late.

“The prosecutions of Mohammad, bin ‘Atash and Hawsawi implicate a national interest of the highest degree,” Millett and Rao wrote. “In particular, the judgment about whether respondents should face the death penalty is a grave one that requires political accountability. Because this case implicates the interests of the entire nation, the military judge’s legal error must be corrected so the prosecutions may proceed according to the secretary’s best judgment.”

As part of their decision, McCall is barred from conducting plea hearings or any other action surrounding the now-withdrawn pretrial agreements.

The ruling places the three defendants’ fate in the hands of Defense Secretary Pete Hegseth. The Department of Defense did not respond to a request for comment regarding Hegseth’s potential plans.

U.S. Circuit Judge Robert Wilkins, an Obama appointee, filed an opinion concurring in part and dissenting in part, noting that the government failed to clearly and indisputably prove McCall had erred.

“We have every reason to believe the opposite,” Wilkins wrote. He found that the three defendants had “clearly and indisputably” begun performing at least three promises they agreed to, by entering into factual stipulations, waiving a pending motion to suppress and moving to withdraw pending motions.

“Against that backdrop, the court’s holding is stunning,” Wilkins wrote. “Not only does the majority believe that respondents did not begin performance, but it holds that the government established a clear and indisputable right to a writ of mandamus or prohibition.”

He added that the majority’s decision does not cite a single case, statute or authority that requires issuing such extraordinary relief.

“Settled law requires that courts like ours defer to the decisions of military courts, particularly when (like here) those courts interpret military rules,” Wilkins said. “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.”

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