A federal appeals court has ruled that the Secretary of Defense has the authority to revoke plea agreements that shield three key figures from the September 11 attacks from facing the death penalty. The decision by the U.S. Court of Appeals for the D.C. Circuit on October 6, 2023, paves the way for potential capital punishment for Khalid Sheikh Mohammed, Walid Bin Attash, and Mustafa al-Hawsawi, who had previously accepted deals to plead guilty to war crimes in exchange for avoiding execution.
The court determined that the plea agreements, made in July 2024 during the administration of President Joe Biden, could be rescinded at the discretion of the Pentagon. Shortly after the agreements were finalized, then-Defense Secretary Lloyd Austin attempted to void them. A lower court initially ruled in December 2022 that Austin’s actions came too late to invalidate the deals.
Judges Patricia Millett and Neomi Rao, who authored the majority opinion, described the case as a “rare instance” justifying a reversal of the lower court’s decision. They asserted, “The government has demonstrated a clear and indisputable right to relief in this case,” emphasizing the Secretary of Defense’s full legal authority to withdraw the previously granted power over the pretrial agreements.
In dissent, Judge Robert Wilkins argued that it was not “clear and indisputable” that the lower court erred in blocking Austin’s efforts.
The ruling has ignited a backlash, with critics contending that only the death penalty would serve justice for the victims of the September 11 attacks. U.S. Representative Mike Lawler (R-NY) condemned the original plea agreements as a “shameful plea deal,” introducing the Justice for 9/11 Act, which aims to prohibit such arrangements in the future. Lawler’s bill has been read twice and referred to the House Armed Services Committee, where it has yet to progress.
Judges Millett and Wilkins were both appointed by former President Barack Obama, while Rao was nominated by President Donald Trump in 2019. The ruling highlights ongoing debates about justice and accountability for the perpetrators of the September 11 attacks, a tragedy that resulted in nearly 3,000 deaths and profound changes in U.S. national security policy.
As the case moves forward, it remains to be seen how the Pentagon will act on this ruling and what the implications will be for the ongoing legal proceedings concerning the three men.