Supreme Court Weighs 9/11 Plea Deals Blocked by Defense Secretary Austin

The Supreme Court has been asked to reinstate plea agreements for alleged 9/11 mastermind KSM and a co-conspirator, deals voided by former Defense Secretary Lloyd Austin.

Supreme Court asked to revive plea deals in stalled 9/11 death penalty case

Khalid Shaikh Mohammad, the alleged mastermind of the September 11 attacks, and his co-conspirator Mustafa al-Hawsawi have petitioned the Supreme Court to reinstate plea agreements that would spare them the death penalty — agreements that two military courts upheld but that the D.C. Circuit Court of Appeals ultimately struck down, Courthouse News Service reports.

The petition arrives as the United States approaches the 25th anniversary of the attacks that killed nearly 3,000 people. Pretrial proceedings in the military commission case began in 2008, and a full trial is not currently scheduled until June 2028.

Two decades in Guantanamo, still no resolution

Mohammad, widely known as KSM, was identified as the principal architect of the September 11 attacks in the 9/11 Commission's 2004 report. He and al-Hawsawi were detained in 2003 and held in secret CIA prisons, where they were subjected to torture — including 183 rounds of waterboarding applied to Mohammad alone — before being transferred to Guantanamo Bay in 2006.

Because of that torture, prosecutors cannot use confessions obtained during CIA interrogations at trial. Last week, a military judge delivered a further blow to the government's case, ruling that Mohammad's 2007 confessions at Guantanamo — previously considered crucial evidence — also cannot be used against him. That ruling threatens to push back further a trial already delayed by nearly two decades.

Against that backdrop, Mohammad and al-Hawsawi had sought to enter guilty pleas under agreements that would remove the death penalty as a possible sentence. Prosecutors, defendants, and victims' groups alike viewed the deals as a pragmatic path to closure after years of legal impasse rooted in the government's torture program.

Austin's withdrawal, and the courts' split response

Former Secretary of Defense Lloyd Austin moved to withdraw the plea agreements after they had been struck. Two military courts found Austin's withdrawal unlawful. The D.C. Circuit, however, reversed those decisions, siding with the government after it filed a petition for a writ of mandamus — an extraordinary legal remedy allowing federal courts to intervene in lower-court proceedings.

Lawyers for Mohammad and al-Hawsawi argue that the D.C. Circuit exceeded its authority under the Military Commissions Act, the statute governing prosecutions of this kind. Congress updated that law in 2009, and it imposes strict limits on the government's ability to appeal military commission orders. The defense contends the D.C. Circuit used the All Writs Act's mandamus provision to circumvent those limits.

"The temptation to intervene is understandably strong where a trial court has ruled against the government in a high-profile criminal case," the lawyers wrote in their petition. "But treating the writ of mandamus as a catch-all opportunity to fill perceived gaps in the government's appellate rights confers upon the executive branch the power to utilize the federal courts for purposes that Congress has not prescribed."

Legal scholars back Supreme Court review

Georgetown University law professor Stephen Vladeck filed an amicus brief urging the justices to take up the case, arguing the D.C. Circuit applies the mandamus standard unevenly and that this case exemplifies a "recurring institutional failure." Vladeck called on the Court to confine mandamus to a narrow exception to established rules on interlocutory review.

Claire Finkelstein, a law professor at the University of Pennsylvania, argued the case raises fundamental rule-of-law questions that warrant Supreme Court intervention. She wrote that legitimacy in capital cases depends on protecting defendants' rights throughout proceedings — particularly where defendants have been held for over 20 years and tortured during interrogations.

"In all criminal trials, but particularly in capital cases, the perceived legitimacy of the conviction depends crucially on protecting the rights of the defendants along the road to conviction," Finkelstein wrote.

The government, for its part, opposed Supreme Court review. It argued the D.C. Circuit's ruling appropriately ensures that political appointees — rather than military judges — retain authority over whether Mohammad and al-Hawsawi face the death penalty.

Victim groups: plea deals offered the only realistic closure

Several September 11 victim groups filed an amicus brief in support of the defendants' appeal — not to excuse their alleged conduct, but to urge reinstatement of the plea agreements as the most realistic path to accountability.

"The practical result of that decision is to impose on the American public and the family members of the murder victims indefinite further delay in seeing this long and painful prosecution brought to a close," the groups wrote. They warned that if the D.C. Circuit's ruling stands, "the prosecution of those responsible for the mass murder of thousands of people on U.S. soil will never be concluded."

Mohammad and al-Hawsawi's attorneys echoed the urgency in their filing. "Our country is now approaching the 25th anniversary of Sept. 11, 2001," they wrote. "Pretrial proceedings in this case began in 2008 and the panel's decision leaves no end in sight."

The justices are expected to review the petition in the coming months and decide whether to hear the appeal.

Source: Courthouse News Service