Biden administration seeks stay of plea deal for alleged 9/11 mastermind

The Biden administration has petitioned a federal civilian court of appeals to stay the plea agreement for Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attack who is scheduled to plead guilty on Friday in return for the death penalty being removed from his case.

The bid to stay the plea agreement follows a ruling last week by a military appeals court that Defense Secretary Lloyd Austin was not authorized to withdraw the plea agreement worked out by military prosecutors.

"The United States seeks a writ of mandamus and prohibition recognizing that, on August 2, 2024, the Secretary of Defense validly withdrew from the pretrial agreements signed by his subordinate on July 31, 2024, and prohibiting the military commission from conducting hearings in which the respondents would enter guilty pleas pursuant to the withdrawn pretrial agreements," the petition filed Tuesday with the U.S. Court of Appeals for the District of Columbia Circuit said.

Under the plea deal, Mohammed, Walid Muhammad Salih Mubarak bin 'Attash and Mustafa Ahmed Adam al Hawsawi would enter guilty pleas in return for the removal of the death penalty.

Austin had previously authorized military prosecutors to enter into discussions for a plea deal in the long-stalled case of the alleged 9/11 plotters, but in August, Austin ordered that the plea agreement be withdrawn just days after it was announced.

However, the military judge overseeing the case ruled that Austin did not have that authority, a ruling that was upheld last week by the U.S. Court of Military Commission Review.

Both of the military courts rejected the Defense Department's argument that Austin had the right to withdraw from the plea agreement, in part because Mohammed and the other plotters began "performing promises" in the agreement by signing stipulations of their guilt prior to Austin signing his memo.

In its filings with the federal court, the administration argued that is a misstatement of what actually happened.

"The text of the agreements makes clear that signing the factual stipulations was part of the process through which the agreements were formed, not performance of a promise under the agreements once they were signed," the Justice Department's filing said.

The Justice Department argued that moving forward with the plea hearings "will deprive the government and the American people of a public trial as to the respondents' guilt and the possibility of capital punishment" for what the government called "the most egregious criminal act on American soil in modern history."

The administration's filing called the 9/11 attack "a heinous act of mass murder that caused the death of thousands of people and shocked the nation and the world."

The Military Commissions Act says that only the accused can appeal a commission's decision to the D.C. Circuit. Nevertheless, the Biden administration is asking the appeals court for extraordinary relief -- a directive from the civilian judges to the commission recognizing Austin's action as legitimate.

"The text of the agreements makes clear that signing the factual stipulations was part of the process through which the agreements were formed, not performance of a promise under the agreements once they were signed," the petition filed by Matthew Olsen, assistant attorney general for national security, and Brian Fletcher, the principal deputy solicitor general, said.

The government's filing noted that Mohammed's plea hearing is scheduled to begin on Friday at 9 a.m.