Nearly 25 years after the attacks, Supreme Court asked to bring closure to 9/11 case

As prosecutors continue to face setbacks in the long-running Sept. 11 death penalty case, the justices were asked to revive plea agreements derailed by the former defense secretary.WASHINGTON (CN) — As the country prepares to commemorate the 25th anniversary of the Sept. 11 attacks, the Supreme Court has been asked to weigh in on the disposal of controversial plea agreements that could provide closure to the long-delayed death penalty trial.Khalid Shaikh Mohammad, the man accused of plotting the attacks, and one of his coconspirators, Mustafa al-Hawsawi, sought to enter guilty pleas under a deal that would have spared them the death penalty.Almost two decades into their prosecution and captivity in Guantanamo Bay, the plea agreements were viewed by victims, the defendants and prosecutors as a way to bring closure to the case after it was derailed by the government’s now-infamous torture program.But former Secretary of Defense Lloyd Austin tried to withdraw the agreements. Two military courts found the withdrawal unlawful, but the D.C. Circuit overturned the decisions.Seeking to reinstate the agreements, Mohammad and al-Hawsawi asked the Supreme Court to review whether the D.C. Circuit overstepped its authority.“Our country is now approaching the 25th anniversary of Sept. 11, 2001,” attorneys for Mohammad and al-Hawsawi wrote. “Pretrial proceedings in this case began in 2008 and the panel’s decision leaves no end in sight.”Proceedings against the perpetrators of the Sept. 11 attacks are governed by the Military Commissions Act, which was updated by lawmakers in 2009 for the prosecutions. Under the statute, the government has limited ability to appeal orders of the military commission. After any appeals in the military courts, the accused have the right to petition the D.C. Circuit for review from a final judgment.However, despite the statutory limits in the Military Commissions Act, the government filed a petition for a writ of mandamus in the D.C. Circuit after the military commission refused to withdraw the plea agreements at Austin’s request.Under the All Writs Act, federal courts can use mandamus to take extraordinary action in aid of their respective jurisdictions. Lawyers for Mohammad and al-Hawsawi say the D.C. Circuit expanded this authority to grant the government’s request against the statutory commands of Congress.“The temptation to intervene is understandably strong where a trial court has ruled against the government in a high-profile criminal case,” the lawyers wrote. “But treating the writ of mandamus as a catch-all opportunity to fill perceived gaps in the government’s appellate rights confers upon the executive branch the power to utilize the federal courts for purposes that Congress has not prescribed.”Georgetown University law professor Stephen Vladeck said the D.C. Circuit has a habit of unevenly applying the mandamus standard. And he said Mohammad and al-Hawsawi’s case exemplified the “recurring institutional failure.”In an amicus brief, Vladeck urged the justices to review Mohammad and al-Hawsawi’s appeal to constrain mandamus to a narrow exception to the long-established presumption of interlocutory review.Claire Finkelstein, a law professor at the University of Pennsylvania, said the case presented extraordinary rule of law issues that warranted the Supreme Court’s review. She argued that departing from the established legal norms, especially in the Guantanamo cases, was damaging to the public’s confidence in the military justice system.“In all criminal trials, but particularly in capital cases, the perceived legitimacy of the conviction depends crucially on protecting the rights of the defendants along the road to conviction,” Finkelstein wrote. “It is all the more critical to adhere to the rule of law in capital cases where the defendants have been in captivity for over 20 years, and where the defendants have been tortured in interrogations.”The government opposed the Supreme Court’s review, arguing the decision below ensured that political appointees get to decide whether Mohammad and al-Hawsawi should face the death penalty.Mohammad, also known as KSM, was named the principal architect of the Sept. 11 attacks in a report by the 9/11 Commission in 2004. He and al-Hawsawi were detained in 2003 and held incommunicado in secret CIA prisons, where they were tortured until being transferred to Guantanamo Bay in 2006.Prosecutors aren’t able to use confessions obtained during the CIA interrogations because the government used torture — including 183 rounds of waterboarding — to obtain them. During subsequent interrogations in 2007 at Guantanamo, Mohammad also confessed to his role in the attacks.But last week, a military judge also ruled that the 2007 confessions — described as crucial evidence in the government’s case — couldn’t be used against Mohammad at trial. The blow to prosecutors’ case could further delay a potential trial for Mohammad and his coconspirators, which is scheduled for June 2028.Several Sept. 11 victim groups filed an amicus brief in support of Mohammad and al-Hawsawi’s appeal. While imperfect, the victims argued the plea agreements were a crucial step in holding the men responsible for their involvement in the attacks. They argued the D.C. Circuit’s ruling deprived them of closure.“The practical result of that decision is to impose on the American public and the family members of the murder victims indefinite further delay in seeing this long and painful prosecution brought to a close,” the groups wrote. “If left to stand, the decision raises the possibility that the prosecution of those responsible for the mass murder of thousands of people on U.S. soil will never be concluded.”The justices will review Mohammad and al-Hawsawi’s petition in the coming months to decide whether to hear their appeal.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads