DC Circuit skeptical feds can back out of plea deal with 9/11 plotters

WASHINGTON (CN) — A D.C. Circuit panel on Tuesday threw cold water on the federal government’s effort to back out of a plea deal with the alleged mastermind of the 9/11 attacks and his two co-defendants, suggesting a long-delayed hearing could be on the horizon.

The government, through a Defense Department official known as a convening authority, appointed by former Secretary of Defense Lloyd Austin, entered into a plea deal with Khalid Sheikh Mohammed and co-defendants Wallid 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 to an extended sentencing hearing where they would admit to their roles in the attacks and be questioned directly by the victims’ families.

Justice Department attorney Melissa Patterson argued that Austin, who tried to pull out of the deal just two days after it was signed, only intervened at the end of the process to avoid any appearance of undue influence over the proceedings and face legal challenges before a military judge.

The three-judge panel expressed doubt over those concerns, considering how lengthy the negotiations were and given the powers of the executive branch.

U.S. Circuit Judge Neomi Rao, a Donald Trump appointee, said the government’s request that the appellate court intervene in this case and issue a writ of mandamus to throw out the plea deal was an “extraordinary" remedy.

“The executive branch could have controlled the convening authority, could have supervised the convening authority, could have previously stepped into the shoes of the convening authority and having not done any of that for several years while these agreements were entered into, and now the government seeks from us the extraordinary writ,” Rao said.

U.S. Circuit Judge Patricia Millett, a Barack Obama appointee, also seemed unconvinced.

“The fact that someone’s going to argue something doesn’t mean that the executive branch shouldn’t do its own job,” she said.

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 and “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.

Tuesday’s panel, rounded out by U.S. Circuit Judge Robert Wilkins, an Obama appointee, spent much of the 4-hour hearing reviewing what counted as a performance of the agreement, and whether Austin had a window to reverse course on the plea agreement after it was signed.

Millett posed a hypothetical: A parent buys Taylor Swift tickets outside a concert venue, creating a contract with the scalper for the tickets. When the parent pays and the scalper hands them over, that counts as the contract being made simultaneously, as either party performs the agreement, without any window to reverse.

In the plea agreement case, Millett said, the defendants signing the deal is also a simultaneous creation and performance of the contract — meaning Austin could not back out two days later.

Michel Paradis, an attorney from the Office of the Chief Defense Counsel representing Mohammed and al Hawsawi, argued that Escallier, and therefore Austin, were warned by members of Congress during the plea negotiations that there would be backlash if the deal struck lacked a death sentence.

Austin had ample opportunity to intervene earlier, Paradis said, and the government had a high burden to show why the appellate panel should rule the plea agreement non-binding.

“But that’s not this court’s problem, it’s the government’s problem,” Paradis said. “And this is an inter-branch dispute where the government has come to the federal courts because of, essentially, the secretary’s failure to either intervene earlier, or to oversee a subordinate that this court has held repeatedly he had the ability to oversee.”

Patterson urged the court to order in the coming days that its Jan. 9 stay freezing the plea agreement remained in place, as Judge McCall had indicated to the parties that he was prepared to accept the plea deal on Thursday.

“We worry that the military court is ready to spring into action,” Patterson said.

The panel did not indicate how it would rule on the stay, but is likely to issue a judgment before the deadline.

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