We have good news and bad news in a story that has stretched out for far too long already. The good news: The plea deal that took the death penalty off the table for terrorists who murdered 3,000 Americans got tossed out today by the DC Circuit Court.
The bad news? We'll get to that in a moment, but the Associated Press reported quickly on the appellate court's decision, which held that then-Defense Secretary Lloyd Austin had the authority to reject the plea deal:
A divided federal appeals court on Friday threw out an agreement that would have allowed accused Sept. 11 mastermind Khalid Sheikh Mohammed to plead guilty in a deal sparing him the risk of execution for al-Qaida’s 2001 attacks.
The decision by a panel of the federal appeals court in Washington, D.C., undoes an attempt to wrap up more than two decades of military prosecution beset by legal and logistical troubles. It signals there will be no quick end to the long struggle by the U.S. military and successive administrations to bring to justice the man charged with planning one of the deadliest attacks ever on the United States.
The deal, negotiated over two years and approved by military prosecutors and the Pentagon’s senior official for Guantanamo Bay, Cuba, a year ago, stipulated life sentences without parole for Mohammed and two co-defendants.
This began last summer, when the Office of Military Commissions (OMC) announced the deal with Mohammed and his two co-defendants to end nearly a quarter-century of legal wrangling over their case. The previous year, Joe Biden had quashed plea negotiations, not over the death penalty -- which Biden didn't want to pursue anyway -- but over other demands that KSM and his co-defendants made in the negotiations.
The mid-summer announcement of a deal came right in the middle of the campaign transition between Biden and Kamala Harris, and apparently surprised Austin ... or at least the backlash did. Within a couple of days, Austin relieved the commander of the OMC and revoked the plea deal. The defense took the matter to federal court, claiming that the defendants relied on legitimate authority within the OMC and that Austin had no authority to revoke the deal. A military judge ruled in their favor just days after the election in November, reinstating the deal. The government appealed the decision, but it looked like a long shot.
Sometimes those pay off, however. In a split 2-1 decision, Judges Naomi Rao and Patricia Millett ruled that the military court erred in limiting Austin's authority over the military commission and his ability to "superintend the disposition of charges" therein:
This is a rare case in which that exacting standard has been met. First, the government has demonstrated a clear and indisputable right to relief in this case. As the CMCR determined, the military judge’s conclusion that the Secretary of Defense lacked the authority to withdraw the Convening Authority’s delegated power and to step into her shoes to manage the pretrial agreements fails as a matter of law. Such a reading would be inconsistent with the Secretary’s power to superintend the disposition of charges in these cases.
The military judge also clearly erred in his determination that Respondents had begun performance of promises contained in the pretrial agreements, including by not questioning a witness. No such promise appears anywhere in the text of the pretrial agreements, and the judge did not claim to be interpreting any ambiguity in the agreements. Nor did any Respondent withdraw a pending motion or refrain from filing additional motions prior to the Secretary’s withdrawal. Likewise, Respondents’ submission of signed stipulations of fact and Letterhead Memoranda occurred as part of their offers of pretrial agreements to the Convening Authority. They were not the performance of a promise contained in the later-executed agreements. ...
The government has demonstrated a clear and indisputable right to relief in this case. The Secretary of Defense had full legal authority to withdraw the Convening Authority’s delegated power over the pretrial agreements. Similarly, under the plain text of the pretrial agreements and the record in this case, no prior performance of promises contained in those agreements prevented the Secretary’s withdrawal.
In other words, despite nearly a quarter-century of tinkering with military commissions to remake them into civilian courts for the purposes of trying 9/11 defendants, it's still a military operation. The OMC commander is an inferior officer to the Defense Secretary, and her authority at that time was an extended grant of Austin's authority. Austin had the authority to countermand her decisions if he deemed it in the interest of national security -- and that's clearly the case when it comes to the disposition of terrorists.
This decision will get appealed to the Supreme Court, of course, but the odds have now swung against the 9/11 defendants. Rao and Millett's argument about "inferior officers" in this context will resonate with the SCOTUS justices who are presently making the same point about Donald Trump's authority over so-called "independent" agencies that exercise executive authority.
So what's the bad news? This leaves us, once again, at Square One with the 9/11 masterminds. The government won't try them in civilian federal court because of the waterboarding and other "enhanced interrogation techniques" -- ie, torture -- that produced their initial confessions. Congress won't allow the DoD to conduct normal military tribunals that would have settled these matters two decades ago. At some point, Congress either needs to allow the military to hold traditional tribunals, or we're going to have to come back to a plea deal of some sort. We've made an absolute hash of something that should have been easy, thanks to an absurd level of scruplusity in attempting to use a civil-prosecutorial model for war crimes by terrorists.
Of course, we have a new administration in place now. One has to wonder what Pete Hegseth will have in mind here -- and Donald Trump as well. Will Congress rethink their earlier interference if Trump and Hegseth force them to address this conundrum? They may wait until the Supreme Court weighs in, but at some point, Congress will have to fix what they broke years ago.
Editor's Note: Thanks to President Trump and Defense Secretary Pete Hegseth's leadership, the warrior ethos is coming back to America's military.
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