Court throws out plea deal for 9/11 mastermind Khalid Sheikh Mohammed, two other terrorists

A divided federal appeals court in Washington, D.C., on Friday tossed out an agreement that would have allowed 9/11 terror mastermind Khalid Sheikh Mohammed to plead guilty in another failed effort to end a years-long legal saga surrounding the military prosecution of men held at Guantánamo Bay.

The 2-1 D.C. Circuit appeals court decision upheld then-Defense Secretary Lloyd Austin’s decision to undo the plea deal approved by military lawyers and senior Pentagon staff.

The deal would have carried life without parole sentences for Mohammed and two co-defendants, potentially taking capital punishment off the table.

Mohammed, a Pakistani national, is accused of spearheading the 9/11 attacks on the World Trade Center, Pentagon and another commercial jetliner that crashed in Pennsylvania.

Austin said a decision on whether to take the death penalty off the table could only be made by the Secretary of Defense.

However, legal concerns stemmed from whether the original plea deal was legally binding and whether Austin waited too long to get it dismissed.

The court found Austin indisputably had legal authority to withdraw from the agreements because the promises made in the deal had not yet been fulfilled, and the government had no adequate alternative remedies.

Since the appeals court put the agreement on hold, the defendants were not sentenced Friday as previously scheduled, marking a temporary victory for the Biden administration.

Judges Patricia Millett and Neomi Rao, of the majority opinion, noted the government “adequately explained that Secretary Austin delayed action to avoid an unlawful influence challenge, waiting to see what type of agreement, if any, would result from the negotiations and only then deciding whether intervention was necessary.”

Citing previous unlawful influence allegations against various government officials, including the secretary of defense, Millett and Rao found Austin was “reasonable” to withdraw from the agreements to avoid additional litigation.

“Having properly assumed the convening authority, the Secretary determined that the families and the American public deserve the opportunity to see military commission trials carried out,” the judges wrote. “The Secretary acted within the bounds of his legal authority, and we decline to second-guess his judgment.”

Judge Robert L. Wilkins, in dissent, argued that siding with the government would be an overreach.

“The Court’s holding is stunning,” Wilkins wrote. “Not only does the majority believe that Respondents [prosecutors who negotiated the plea deal] did not begin performance, but it holds that the government established a clear and indisputable right to a writ of mandamus or prohibition.

“It is impossible for me to conclude that the government has shown it is clearly and indisputably entitled to relief,” he continued. “That demanding mandamus standard is even further out of the government’s reach where the government cannot cite binding on-point precedent in support of its claims and we are constrained to reviewing for clear error both the Military Judge’s finding that the PTAs encompassed the relevant promises and his application of the withdrawal regulation. But even on de novo review of those findings, the government has not met its burden.”