By attempting to renege on the deals, the administration may have taken the death penalty off the table for some of the plotters.
By attempting to renege on the deals, the administration may have taken the death penalty off the table for some of the plotters.
T he botched plea deal with Khalid Sheikh Mohammed and other 9/11 terrorists is a signature Biden-Harris administration moment: a scheme, apparently double-wrapped in incompetence, to spare the Democrats’ presidential candidate — first the senescent one, then the vacuous one — from an unpopular political decision.
I say double-wrapped because it appears the deal that the administration made, and since then has desperately tried to renege on, contains an anti-renege clause — one that officials calculated would frustrate Donald Trump but on which, instead, the administration has tripped itself up.
Back in August, I outlined how the Biden-Harris administration traded a political problem for a legal problem. The political problem is that the 9/11 case, which has lingered for over two decades, probably cannot be ended unless the administration permits the Defense Department to take the death penalty off the table in order to induce a guilty plea from the terrorists; yet, because the terrorists killed nearly 3,000 Americans, removing capital punishment would be extremely unpopular — and thus the administration does not wish to do it, or at least be seen doing it, much less try to explain it.
As we have seen, the progressive Democrats who run the administration love to make the base swoon by brandishing their anti-death-penalty credentials in the abstract. When it gets down to real cases, though, they hide under their desks: Not only is capital punishment patently constitutional; the majority of Americans approve of it in heinous cases, particularly jihadist mass-murder cases. So, Biden and Harris play a game. They airily proclaim philosophical opposition to capital punishment. In concrete cases — such as that of Boston Marathon bomber Dzhokhar Tsarnaev — they tell the country they are defending the death-penalty sentence ordered by a jury; but in so doing, they quietly assure Democrats not to worry because they have imposed a moratorium on executions, ensuring that no death sentences will actually be carried out.
Might be amusing to hear Queen Kamala of Word Salad explain that one. But then someone would have to ask her about it, right? Dream on . . .
But I digress. This summer, the Biden-Harris Defense Department surreptitiously negotiated a plea bargain with KSM and his al-Qaeda confederates who planned the 9/11 suicide-hijackings. In exchange for withdrawing the death penalty, the terrorists would plead guilty, fully admit their roles in the attacks, and be sentenced by the commission sometime next year, probably to life-imprisonment, though that is not guaranteed.
Military commission prosecutors are over a barrel because the jihadists are challenging evidence derived from confessions made after U.S. intelligence agents applied extraordinarily harsh interrogation methods. (As I did this summer — see, e.g., here, here, here, and here — I will refrain from reentering the fray over whether these methods amounted to torture; if a person’s will was overborne, a confession and its fruits are inadmissible, even if the force used did not rise to the level of torture under the strict legal definition of that term.) Defense lawyers are pressing this issue in pretrial motions; the issue has added urgency because the lawyers assess that a second Trump administration, if there is one, would not waive the death penalty even if that position risked the suppression of evidence, more years of delay, and potential defeat for the government in the eventual trial.
A brief recap. The plea deal was offered by the prosecutors after being formally approved by retired brigadier general Susan K. Escallier, the appointee hand-picked by Biden-Harris defense secretary Lloyd Austin to oversee the commission proceedings. The terrorists and their counsel then accepted and signed the offers — meaning each contract (which is what a plea deal is) became an enforceable agreement.
Nevertheless, realizing how unpopular the agreement was, Secretary Austin purported to relieve Escallier of her oversight duties and unilaterally withdraw the plea deals. Austin elaborated that he believed the cases should go to trial — meaning, as a practical matter, that the commission would go on for at least another two or three years, as opposed to ending in an unpopular plea agreement in the stretch-run of the 2024 presidential campaign.
Austin’s implication that he was in the dark about the terms of the deals doesn’t pass the smell test. But regardless, defense counsel argue that Escallier was fully authorized to extend the plea offers — which seems incontestable. Moreover, they contend that improper command influence over the outcome of the commission has been exercised by Austin, and derivatively, by Commander in Chief Biden (presumably egged on by Harris, said to be the highly experienced former prosecutor and the last person in the room with Biden on all the big national-security calls).
Now, a new wrinkle has emerged.
The New York Times reports that the plea deal executed by KSM and at least one other 9/11 plotter (Mustafa al-Hawsawi) contains a so-called bail-out term. It expressly provides that if (a) the government in the future attempts to withdraw from the plea deals, and (b) the terrorist-defendants have complied with the terms, then (c) the death penalty is nullified in any future trial. That is to say, assuming the plea deals are enforceable, the death penalty is off the table — at least for KSM and Hawsawi — because the parties specifically contemplated the possibility of a government attempt to renege.
According to Carol Rosenberg, the Times’s veteran Gitmo reporter, the relevant defense lawyers insisted on the bail-out term due to concerns that, if Trump wins the November election, his administration would reject the plea agreements — even though, as I’ve argued, they’d face the same dilemma (namely, the possibility that the trial could be lost) that induced the Biden-Harris administration to negotiate the pleas.
The defendants did not anticipate that the Biden-Harris administration itself would reject the plea agreements it had negotiated. Of course, they would have precisely anticipated this development had they taken into account the trajectory of the 2024 campaign — i.e., the extremes to which Democrats and their media allies have gone to shield Harris from what heretofore has been the customary requirement that a presidential candidate address tough questions (to say nothing of questions about the policies of an administration in which such a candidate has been the No. 2 official for nearly four years).
There are five terrorists charged in the 9/11 commission case. In addition to KSM and Hawsawi, Walid bin-Attash has agreed to plead guilty; for reasons not yet clear, however, his plea deal reportedly does not include the bail-out provision. Another accused terrorist, Ammar al-Baluchi, has not agreed to plead guilty; this raises the question of why the Biden-Harris Defense Department would offer non-capital plea deals unless all terrorists were agreeing to plead guilty — i.e., if the case will have to be tried anyway, then why make concessions certain to be unpopular? (Remember, even if the 9/11 jihadists were acquitted in a commission trial, it is highly unlikely that our government would ever release them — I’d say it is inconceivable, except that a lot of things I used to think were inconceivable have happened in recent years. So unless all defendants agree to plead guilty, why offer a non-capital plea to any of them?) The fifth terrorist charged, Ramzi bin al-Shibh, is said to have developed mental issues that resulted in his being ruled incompetent to stand trial; ergo, he’s not fit to execute a plea agreement.
The plea agreements — including that of 9/11 mastermind KSM, which is said to be 20 pages long — are under seal with the commission. Before the military judge, Colonel Matthew N. McCall, rules on the fate of the plea deals, he plans to hear arguments on October 11 from seven news organizations (led by the Times) that seek the unsealing of the agreements so they can be reported to the public.
Such an unsealing could solve a lingering question: What is the potential sentence?
To recap again, in a commission trial, the sentence is imposed by the panel of military officers (the commission) that functions as the jury, not by the court. That’s in contrast to a civilian prosecution, in which the judge imposes sentence after approving any plea agreement. It is thus harder in a commission case to agree in a plea deal to a potential sentencing range — the judge approves the deal, but there are significant limits on the judge’s control over the sentence. That is why I’ve noted that, while it might be easier to sell the public on the prudence of the plea deals if it was certain that the terrorists would get mandatory life sentences, that may not be possible here (especially since, in some of the relatively few cases they’ve handled, military commissions have been lenient sentencers, especially when the scandal of harsh interrogation was an issue).
Yet, the Times reports that the now-disputed plea deals do make an effort to impose a sentencing range beneath which the commission would not be permitted to go. KSM’s deal is said to start that range at 2,976 years (one for each victim killed in the attacks) and from there extend it beyond 4,000 years. Obviously, if that is true, and if such a term is legally enforceable, KSM would effectively face a life sentence.
Another key issue is the terrorists’ demand to serve their time at the Guantanamo Bay detention facility rather than be incarcerated at a supermax civilian penitentiary in the United States. The Biden-Harris administration has aspired to the unfulfilled Obama-Biden administration goal of shuttering Gitmo; clearly, that would be unachievable by the end of Biden’s presidency if the terrorists’ demand is accommodated.
Again, we can’t know how that dispute has been resolved absent seeing the plea deals, which the Biden-Harris administration seeks to keep under wraps even as it tries to void them. It sure would be interesting if someone asked Vice President Harris about that.