Appeals court skeptical of feds’ bid to back out of 9/11 plea deals

A federal appeals court appeared reluctant Tuesday to allow the Pentagon to back out of plea deals that ruled out the death penalty for three alleged plotters of the Sept. 11, 2001 attacks.

The arguments before the D.C. Circuit Court of Appeals featured one of the first high-profile instances where President Donald Trump’s Justice Department backed the Biden administration’s legal claims.

Both administrations have argued that former Defense Secretary Lloyd Austin had the authority to cancel plea deals the self-described mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and two co-defendants reached with a subordinate Pentagon official. However, a military commission judge ruled that the agreements were binding on the government and a military appeals court declined to disturb that ruling.

Judges Robert Wilkins and Patricia Millett, both appointees of President Barack Obama, sounded most skeptical Tuesday of the government’s arguments. Judge Neomi Rao seemed less skeptical, but still aired doubts about whether the D.C. Circuit should step in.

All three judges questioned Austin’s handling of the matter, suggesting that he could — and perhaps should — have acted far earlier than August, when he moved to scuttle pretrial agreements that were signed by both sides. Details of those deals remain under seal, but they are known to have ruled out the death penalty.

“The executive branch … could have fixed this itself quite easily. This wasn’t a surprise. It wasn’t that they didn’t see this coming or know what’s going on,” Millett said. “This is a control-within-the-executive-branch problem. I don’t know why it’s a judicial branch problem.”

Rao added: “If the administration and the secretary were never going to want an agreement that took the death penalty off the table, that could have been made clear at the outset.”

Michel Paradis, a defense attorney for Mohammed and another defendant, said the Biden administration appeared to have made a strategic decision to let the negotiations play out.

“It’s not this court’s responsibility,” Paradis said. “They made political decisions, and I don’t mean in a partisan sense — and they’re unhappy with the consequences of those decisions.”

“It’s not the job of this court to delay a case that’s already been delayed arguably by 20 years for reasons entirely of the government’s making,” he added.

A Justice Department attorney representing the Defense Department, Melissa Patterson, suggested Austin decided to steer clear of the plea negotiations because of concerns that any role he took could prompt defense arguments that he was exerting “unlawful command influence” over the process.

“A prudent secretary might have wanted to let this process play out independently,” Patterson said.

But Wilkins said waiting until the deals were signed was exceedingly imprudent, because the defendants might well argue they are binding at that point — as they are now doing.

“It seems like that’s really rolling the dice,” Wilkins said. ”Then, the secretary’s hands would be tied. That doesn’t seem to be the way to run a railroad.”

Patterson warned the court that the military commission judge has indicated he could proceed with a hearing to accept at least one defendant’s guilty pleas as soon as Thursday if the appeals court allows it. She asked that even if the judges rule against the government, they prevent the hearing from going forward while the Justice Department mulls whether to ask the Supreme Court for relief.

Mohammed and his alleged accomplices who agreed to plead guilty, Walid bin Attash and Mustafa al-Hawsawi, have been in U.S. custody since 2003 and were moved to Guantanamo in 2006. The U.S. has claimed legal authority to detain them under the laws of war, regardless of whether they’re convicted and sentenced by the military commission.

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