A divided US 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-Qaeda’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 US military and successive administrations to bring to justice the man charged with planning one of the deadliest attacks ever on the United States.
Mohammed is accused of masterminding the plot to fly hijacked commercial passenger aircraft into the World Trade Center in New York City and the Pentagon. The 9/11 attacks killed nearly 3,000 people.
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.
But then-Defense Secretary Lloyd Austin repudiated the deal, saying a decision on the death penalty in an attack as grave as Sept. 11 should only be made by the US defense secretary.
Attorneys for the defendants had argued that the agreement was already legally in effect and that Austin, who served under US President Joe Biden, acted too late to try to throw it out. A military judge at Guantanamo and a military appeals panel agreed with the defense lawyers.
But, by a 2-1 vote, the US Court of Appeals for the District of Columbia Circuit found Austin acted within his authority and faulted the military judge’s ruling.
The panel had previously put the agreement on hold while it considered the appeal, first filed by the Biden administration and then continued under US President Donald Trump.
US Circuit Judges Patricia Millett and Neomi Rao, writing for the majority in Friday’s ruling, said Austin “indisputably had legal authority to withdraw from the agreements.”
“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 Secretary acted within the bounds of his legal authority, and we decline to second-guess his judgment,” judges Patricia Millett and Neomi Rao wrote.
Millett was appointed by Democratic President Barack Obama, while Rao is a Trump appointee.
US Circuit Judge Robert Wilkins, an Obama appointee, dissented from what he called a “stunning” ruling, saying his colleagues should have deferred to the decisions of military courts interpreting military rules, and that “The government has not come within a country mile of proving clearly and indisputably that the Military Judge erred.”
Relatives of the Sept. 11 victims were split on the plea deal. Some objected to it, saying a trial was the best path to justice and to gaining more information about the attacks, while others saw it as the best hope for bringing the painful case to a conclusion and getting some answers from the defendants.
The plea deal would have obligated the men to answer any lingering questions that families of the victims have about the attacks.
Brett Eagleson, who was among the family members who objected to the deal, called Friday’s appellate ruling “a good win, for now.”
“A plea deal allows this to be tucked away into a nice, pretty package, wrapped into a bow and put on a shelf and forgotten about,” said Eagleson, who was 15 when his father, shopping center executive John Bruce Eagleson, was killed in the attacks.
Brett Eagleson was unmoved by the deal’s provisions for the defendants to answer Sept. 11 families’ questions; he wonders how truthful the men would be. In his view, “the only valid way to get answers and seek the truth is through a trial” and pretrial fact-finding.
Elizabeth Miller, who was 6 when the attacks killed her father, firefighter Douglas Miller, was among those who supported the deal.
“Of course, growing up, a trial would have been great initially,” she said. But “we’re in 2025, and we’re still at the pretrial stage.”
“I just really don’t think a trial is possible,” said Miller, who also favored the deal because of her opposition to the death penalty in general.
A lawyer for Mohammed and one of his co-defendants, Mustafa Ahmed Adam al Hawsawi, did not respond to requests for comment, nor did the Pentagon.
Matthew Engle, an attorney for the third defendant, Walid Muhammad Salih Mubarak bin ‘Atash, said he was considering a potential further appeal, including to the US Supreme Court.
Mohammed is the most well-known inmate at the detention facility in Guantanamo Bay, which was set up in 2002 by then-US President George W. Bush to house foreign militant suspects following the September 11, 2001, attacks.