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.
Mohammed is accused of developing and directing the plot to crash hijacked airliners into the World Trade Center and the Pentagon. Another of the hijacked planes flew into a field in Pennsylvania.
The men also would have been obligated to answer any lingering questions that families of the victims have about the attacks.
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 defense secretary.
Attorneys for the defendants had argued that the agreement was already legally in effect and that Austin, who served under 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 U.S. 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 President Donald Trump.
“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 an appointee of President Barack Obama while Rao was appointed by Trump.
In a dissent, Judge Robert Wilkins, an Obama appointee, wrote, “The government has not come within a country mile of proving clearly and indisputably that the Military Judge erred.”
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