Electoral politics and fraught history fueled Republican opposition to the plea deal — and the Biden-Harris administration’s rescission of it.
We had an editorial on Monday on the Biden-Harris administration’s retraction of the plea deal that it had offered to Khalid Sheikh Mohammed and other 9/11 jihadists. I wrote about this reversal on Saturday, after posting on the plea deal when it was initially announced a few days earlier.
There are a number of additional things to be said about the matter. I’ll do that in this post and a few others to follow in the coming days.
First, let’s look at the politics. The Republican reaction to the announcement of the plea deal and the Biden-Harris administration’s consequent rescission of the deal were flagrantly political.
From a legal standpoint, the plea deal was the least bad option. Without guilty pleas — even if the doubtful possibility of death sentences had to be forfeited to get the guilty pleas — the situation is likely to get worse for the government. In the coming weeks and months, for example, there could be court decisions that harpoon the prosecution’s case by dismissing charges and/or suppressing evidence because of the CIA’s harsh treatment of the terrorists during their captivity and interrogations; or, perhaps more likely, there could be more legal wrangling that takes another few years (in addition to what’s gone on over the last dozen years or so), at the end of which the military commission ends up not imposing the death penalty anyway, followed by more years of appeals.
That’s why I’ve reluctantly contended that taking the death penalty off the table in exchange for having the jihadists plead guilty to nearly 3,000 murders with a probability of life sentences (more on that in a separate post) is the best outcome we can hope for at this point. It would end this 23-year saga in the near term on as favorable terms as the nation and the 9/11 families can reasonably expect. And among former prosecutors who’ve dealt with terrorists and grasp the need to confront them aggressively, I am not alone in this view. As I observed well over a year ago, Ted Olson — the former Bush-administration solicitor general whose wife, Barbara, was killed in the 9/11 atrocities — has publicly favored a plea deal along the lines the Biden-Harris administration offered but has now rescinded. (As I said in that column, I disagree with Olson’s current assessment that it was an error not to rely on the civilian courts. I’ll revisit that in a later post.)
The plea bargain was more than two years in the making, and the White House was in the loop despite its nonsensical post facto efforts to claim otherwise. Commissions are military proceedings that are controlled by statute but take place under the authority of the commander in chief. As I detailed in March 2022, moreover, the Biden-Harris administration guardedly green-lighted the push by military lawyers (for the defense and prosecution) to ramp up plea-bargain discussions — taking pains to avoid a paper trail. Note: This was within a few months of the debacle that was Biden’s withdrawal from Afghanistan; the White House was hell-bent on bringing down the “War on Terror” curtain, as if the jihadists who started it and continue fighting it did not get a vote. Hence, the plea bargain was not only legally sound (though understandably unpopular); it was consonant with Biden-Harris administration policy.
The reversal, then, is sheerly political. Once the plea bargain was announced, President Biden and the Harris presidential campaign were on the receiving end of a barrage from congressional Republicans, the intensity of which they failed to anticipate. The volte-face is meant to stop the bleeding.
To be fair to Biden and Harris, the GOP outrage is disingenuous: Again, the administration tried to plead out the case because there are no better options, not because it didn’t want death sentences. (When it’s politically expedient, Biden and Harris are fine with the imposition of death sentences; it is the execution of death sentences that they oppose.) Again, to my knowledge, none of the Republican leaders who expressed outrage over the plea bargain have explained how they would handle the case differently.
On Tuesday morning, I scrolled through Donald Trump’s social-media posts, which are nothing if not opportunistically demagogic, and I saw no condemnation of the plea bargain. The Trump campaign has been mostly mum on this, and that’s the right posture. Remember, unlike the incumbent Democratic administration, President Trump — to put it mildly — is not philosophically opposed to capital punishment. If it were an easy matter to get convictions and death sentences in the 9/11 case, Trump’s Defense Department would have ramped up efforts to push the matter to conclusion. Indeed, such an outcome, if attainable, would have helped Trump’s 2020 reelection bid immensely. The case was not favorably resolved under Trump, just as it hasn’t been favorably resolved under Biden, because the challenges are legal in nature; they do not change based on who the president is.
I have sympathy for the Republican urge to lash out at Biden and Harris. Wholly apart from electoral politics, there is history here. Following 9/11, congressional Republicans tried hard to fortify the Bush counterterrorism paradigm that, in general, favored the application of the laws of war (e.g., combat operations against, and indefinite detention of, alien enemy combatants) and, in particular, sought to make military commissions work.
At every step, they were bitterly opposed by the Lawyer Left — progressive attorneys who championed the Clinton paradigm of treating foreign jihadist organizations as a law-enforcement problem to be addressed by civilian criminal-justice protocols, who joined the chorus limning President Bush and Vice President Cheney as war criminals. As private lawyers during the Bush years, Eric Holder and many other Democrats volunteered their services to detained enemy combatants even as the jihadist war against the United States ensued. Many of them later worked in commission-hostile Democratic administrations.
In 2008, it might have been possible to convict, sentence to death, and execute KSM et al. They said they wanted to be “martyred” and offered to plead guilty. But the commission judge wouldn’t take yes for an answer. In the interim, Barack Obama had won the presidential election after campaigning against Bush’s counterterrorism paradigm — with soon-to-be attorney general Eric Holder as his surrogate. The Obama-Biden administration dropped the military-commission prosecution, vowing to close the Guantanamo Bay terrorist-detention facility and bring the terrorists to trial in Manhattan federal court. This was sufficiently unpopular, even among Democrats, that the administration backed down, with Obama in 2011 signing legislation that blocked the transfer of Gitmo inmates to the United States. The military commission was reinstated. Thirteen years (and counting) of litigation have followed, with the abusive treatment of the terrorists taking center stage in media coverage while their mass murder of Americans recedes from memory.
If you want to know why our politics are so spiteful today, it has a lot to do with the long memories of that chapter along with the predictable fallout: Democrats now openly align with Islamists, including pro-Hamas rabble-rousers, while simultaneously portraying many Republicans — particularly Trump supporters — as white-supremacist domestic terrorists.
This creates a powerful temptation for Republicans to portray a plea deal for 9/11 terrorists engineered by the Biden-Harris administration as yet another mollification of our enemies at the expense of national security. But that doesn’t make it true. Yes, Biden and Harris do mollify our enemies. Yes, their administration is a national-security nightmare. And yes, Republicans should continue trumpeting that indictment when the facts support it (as they frequently do). But unless it is settled with guilty pleas and a probability of life sentences, the 9/11 case has the potential of either becoming a profound national embarrassment or, at best, ending with what is available right now — convictions without death sentences — but only after many more years of frustration for the nation and anguish for the 9/11 families.
That is not a political narrative. That is harsh reality.