Washington — Justice Department lawyers and defense attorneys for the three men accused of planning the Sept. 11, 2001, terror attacks squared off before a federal appeals court Tuesday in a court fight over whether plea agreements reached with the defendants last summer can go forward.
A three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit is considering whether former Defense Secretary Lloyd Austin exceeded his authority when he revoked the pretrial agreements that military prosecutors reached with the defendants, including alleged Sept. 11 mastermind Khalid Sheikh Mohammed.
The deals with Mohammed and two alleged accomplices, Walid Muhammad Salih Mubarak bin ‘Attash and Mustafa Ahmed Adam al Hawsawi, were agreed to in late July following more than two years of negotiations. The agreements were approved by a senior Pentagon official who oversees the military court at Guantanamo Bay, Cuba, Brigadier General Susan Escallier, who Austin designated as convening authority for military commissions in 2023.
Under the terms that have been released publicly, the men would plead guilty to eight charges arising from their alleged roles in the 9/11 terror attacks and in exchange, avoid the death penalty. The full parameters of the deals remain under seal.
But shortly after the agreement was announced, Austin said he was rescinding them, writing in a memo that “in light of the significance” of the pretrial deals, “responsibility for such a decision should rest with me.”
The case arrived before the D.C. Circuit after a military commission judge in Guantanamo Bay, who has been overseeing the case, ruled in November that Austin’s nullification was unlawful, rendering the agreements valid and enforceable.
A military appeals court last month declined to let Austin rescind the pretrial agreements because the defendants had begun performing a promise contained in them.
The U.S. government then asked the D.C. Circuit to step in and sought to stop the military tribunal in Guantanamo Bay from accepting the agreements, as well as pause proceedings. The appeals court earlier this month agreed to put the plea hearing on hold and set arguments in the case on an expedited basis.
The Justice Department is asking the D.C. Circuit to find that Austin validly withdrew from the pretrial agreements and bar the military commission from conducting plea hearings, during which the defendants would enter guilty pleas.
“We think this is the circumstance to issue the writ and effectuate and allow the secretary of defense’s determinations to govern the course of the prosecutions of the alleged mastermind of 9/11 and the two alleged co-conspirators,” Melissa Patterson, a Justice Department lawyer, told the three-judge panel.
Judges Patricia Millett, Robert Wilkins and Neomi Rao heard nearly four hours of arguments over Austin’s decision to unwind the deals.
Patterson revealed to the judges that as proceedings were getting underway, the military judge in Guantanamo Bay said he would begin taking the pleas from the three defendants Thursday morning if the D.C. Circuit denied relief to the government.
She asked the court to leave its earlier order pausing proceedings in place if it sides with the 9/11 defendants to allow the Justice Department time to evaluate whether it should seek further review.
Across the arguments, the judges peppered Patterson with questions as to why Austin waited until two days after the plea deals were reached to withdraw Escallier’s authority to enter into the agreements and assume that power for himself.
Austin could have placed limits on Escallier’s ability to enter the pleas from the beginning, Rao, appointed by President Trump during his first term, said. She later acknowledged that the circumstances of the case and the government’s interest are “extraordinary.”
The judge said the executive branch had “every opportunity” and the power to take actions to exercise control over Escallier, the convening authority, before the agreements were reached.
Millett, named to the D.C. Circuit by former President Barack Obama, said Austin’s revocation of the deals two days after the offers were signed put “all these courts into knots” trying to figure out the next steps.
The judges also weighed whether Austin missed his window to rescind the agreements altogether, as the rules governing military commissions allow the convening authority — defined as the secretary of defense or an official designed by the secretary — to withdraw from a deal at any time before a defendant begins performance of promises contained in them.
“It undermines the force and plausibility of your argument that the secretary was being prudent by waiting,” Wilkins said, noting that there are events that could take place that would take away his authority to withdraw the deals.
Michel Paradis, who is representing Mohammed in the case, said it is “not appropriate” for the government to ask the D.C. Circuit to “save itself” from a pretrial agreement that it entered into, and the defendants began to perform.
The defense secretary, he said, had plenty of opportunities over a span of several years to know about and prevent the deals, but chose not to exercise his authority over the convening authority until two days after the offers were signed.
It’s unclear how soon the D.C. Circuit will issue its decision.
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