DC Circuit blocks accused 9/11 plotter's plea after US balks
Khalid Sheikh Mohammed, seen here shortly after his 2003 capture in Pakistan, was labeled the "principal architect of the 9/11 attacks" by the 9/11 Commission. (AP Photo/File)
A federal court has blocked Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11, 2001, terrorist attacks, from entering a plea deal Friday, granting an 11th-hour Biden administration request and ensuring the case continues into the incoming Trump administration.
The decision marks the latest twist in the 22-year saga since Mohammed was captured in 2003, moved to the military prison at Guantánamo Bay, Cuba, in 2006, and charged in its special war court in 2008 and again in 2011. But the case has yet to go to trial, mired in bureaucratic and legal battles that include questions about the admissibility of evidence procured through torture.
Instead, the beleaguered case, like the notorious prison that houses him, has become a symbol—to frustrated victims’ families, human rights attorneys, and U.S. officials alike—of the botched pursuit of justice since the terrorist attacks that killed nearly 3,000 people.
On July 31, U.S. military prosecutors reached a deal with Mohammed and two other defendants in the case that would secure a guilty plea in exchange for lifetime sentences, removing the possibility of the death penalty.
The news angered victims’ families, Republican lawmakers and New York City’s firefighters union. Two days later, Defense Secretary Lloyd Austin canceled the agreement, setting off a new series of court deliberations over whether the plea hearings can proceed and who has the authority to stop them.
The judge in the Guantánamo case, Col. Matthew N. McCall, determined in November that Austin’s attempt to rescind the plea deals had come too late and was thus invalid; a ruling upheld last month by a Pentagon appeals panel. The administration, pushing for Austin’s decision to override the others, asked for more time.
In a two-page order after 6 p.m. on Thursday, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit stayed Mohammed’s plea until further notice while it weighs an emergency appeal by the Justice Department and the solicitor general’s office. The court gave both sides until Jan. 22 to file written arguments.
“Further ordered that proceedings before the Military Commission concerning pretrial agreements entered into by Khalid Shaikh Mohammad, Walid bin Attash, and Mustafa al Hawsawi be administratively stayed pending further order of the court,” wrote Judges Patricia Millett, Robert Wilkins and Neomi Rao—two Obama appointees and a Trump appointee, respectively.
The panel said the delay “should not be construed in any way as a ruling on the merits,” but was intended to allow it time to receive full briefing and hear oral arguments “on an expedited basis.” No hearing date was immediately set, and it will have to wait until Donald Trump succeeds Joe Biden in the White House on Jan. 20.
The ruling postpones once again a reckoning in U.S. courts for Mohammed, who along with two co-defendants signed an agreement with the retired Pentagon general overseeing the cases.
Ian Moss, a former defense attorney and State Department official for Guantánamo matters who is now at Jenner & Block, said the situation “lays bare, yet again, what a mess the entire military commissions system continues to be.”
“The reality is, whether the case ever goes to trial or is resolved through pleas, the 9/11 defendants will effectively serve life sentences,” Moss said, because the death penalty was taken off the table when the U.S. government “decided to torture the defendants after they were captured.” The alternative to plea deals is endless litigation with slim possibility of closure, he said.
The Biden administration’s Justice Department appealed Tuesday to stop the plea by Mohammed from going forward, seeking an extraordinary judicial order outside the normal course of litigation from the D.C. Circuit, often regarded as the nation’s second-most-powerful appeals court.
In a 30-page motion, Matthew G. Olsen, assistant attorney general for national security, and Brian H. Fletcher, a deputy solicitor general, wrote that the defense secretary had “a clear and indisputable right” to cancel the plea agreements as convening authority of the military war courts.
“Here it is undisputed that the Rules provide that the ‘convening authority may withdraw from a pretrial agreement at any time before the accused begins performance of promises contained in the agreement,’” Olsen and Fletcher argued.
They said the rulings by McCall and the military commission review board were invalid, maintaining that the Pentagon had not begun to implement the agreement.
“Did the respondents begin performance of the promises in the agreements before the Secretary withdrew from them on August 2, 2024?” Fletcher and Olsen wrote. “The answer … is a clear ‘no.’”
Responding before a midnight Thursday deadline, attorneys for Mohammed and two other 9/11 defendants who agreed to enter plea deals at the same time, Walid bin Attash and Mustafa al-Hawsawi, argued that far from being “indisputable,” Austin’s claim had been rejected by four of five military judges to review it, making it impossible for the government to clear the high legal standard for emergency action.
“An eleventh-hour stay will accomplish nothing but more delay and it will reward the government for its—at best—negligent handling of what it now pleads with this Court to view as ‘handling of a case of unique national importance,’” Mohammed attorney Michael Paradis wrote for his client’s and Hawsawi’s defense teams. They criticized the government for waiting until just three days before Mohammed’s plea to file its appeal, adding, “The victims, the defendants, and American people deserve finality in a case that has hung open for a quarter century.”
A fourth defendant in the case, Ali Abdul Aziz Ali, opted not to be part of the plea deal. McCall in 2023 removed a fifth defendant, Ramzi Binalshibh, from the case, ruling that he suffered from such significant “mental impairment” that he “lacks the capacity to stand trial,” according to court documents. Binalshibh’s lawyers say his mental issues are the result of years of torture.
Ali, accused of helping his uncle Mohammed by making travel arrangements and payments to hijackers, asked the court late Thursday to make clear that pretrial litigation and scheduled oral argument in his case not be delayed. He has sought treatment for torture he said he suffered in C.I.A. custody, including a traumatic brain injury. The court specified its order applied only to the three defendants, and not to Ali.
J. Wells Dixon, a veteran Guantánamo defense attorney at the Center for Constitutional Rights, said that Austin was “placing his finger on the scales of justice” in his challenges to the pleas and that the result would not be death sentences for the accused.
“All that dies in a military commission trial at Guantanamo is the rule of law and our nation’s moral standing in the world,” he said.
