Potential Fallout From the Government's Challenge to the 9/11 Accused's Plea Deals

If the government has agreed to a plea deal in which the possibility of the death penalty has been dropped, may a higher-ranking official lawfully renege on that deal? Even if law permits the rescission, should the government do it?

On the former, my gut response is “What? Of course not!” But indeed the question can be more complex. However, as to the latter, I suggest that the answer is: “No, for the government’s own sake.” Making and then breaking deals hurts the government’s own credibility in future negotiations. That’s especially true if the government breaks promises in high-profile, widely-known cases.

Recently, the government did exactly that in the highest profile criminal cases of recent memory—the cases against the 9/11 Accused. Now those cases are before the D.C. Circuit. Specifically at issue are the status of plea agreements with three individuals accused of orchestrating the 9/11 attacks: Khalid Shaikh Mohammad, Walid Bin ‘Attash, and Mustafa al Hawsawi. The plea negotiations between the government and the Accused have been going on for years, and this lengthy process culminated in what appeared to be a plea agreement in July 2024. Though the details are not public, what we do know is that the parties reached an agreement for these three Accused to plead guilty to all the charges, in exchange for the removal of the possibility of the death penalty. All three plea agreements were signed by Brigadier General Susan Escallier—who was the “Convening Authority” of the military commission trying these cases. But shortly after the announcement, Secretary of Defense Lloyd Austin sent a memorandum to Brigadier General Escallier stating that he was withdrawing her authority as Convening Authority, and exercising his own authority as the “superior convening authority” to withdraw the plea agreements.

The three Accused opposed the Secretary’s action, arguing that he lacked the authority to withdraw the pleas and that they had already started performance of the plea, thereby blocking any attempt by the government to withdraw. The Military Commission Judge agreed and found that the government’s attempted withdrawal to be unlawful. Thereafter, the government sought a writ of mandamus and prohibition before the United States Court of Military Commission Review (USCMR) to stay the plea proceedings before the military commission. The USCMR declined to issue the writ, and the government appealed to the D.C. Circuit—where the case remains now.

As mentioned above, the cases present several complex legal issues, principally about the hierarchies and conditions of authority over the military commissions and when and how a defendant’s performance of a plea agreement begins. The briefing before the D.C. Circuit comprehensively raises these arguments.

But I think there is an important systemic observation. It relates to the fact that even if the questions about negotiation authority and plea performance are technical and potentially unique or idiosyncratic, reneging on a plea agreement has potentially vast impact. This is because of the importance of plea bargaining to the function of the criminal system. The Supreme Court, time and again, has stressed this fact about our system. And some studies suggest that around 95% of all criminal convictions are obtained through plea agreements.

Notably, one area where defendants raising criminal procedure challenges have had (surprising) success is with respect to plea bargaining—for example, Santobello v. New York and Blackledge v. Allison. In these cases—and indeed other plea bargaining cases where defendants have lost—the Court was focused on ensuring that defendants can trust the plea bargaining process and incentivizing both defendants and the prosecution into entering plea agreements.

The briefing before the various tribunals suggests that the government sees this case as exceptional. That’s understandable—it’s 9/11, it deals with military commissions, and it has an intervention by the Secretary of Defense. Nevertheless, I think that’s potentially wrong as an empirical matter. The case is maximally high-profile, but it is ultimately not unique. At the end of the day, an individual with at least apparent authority signed agreements with criminal defendants, who then acted on those agreements by inter alia entering into confessional stipulations. In reneging on such a plea process, the government—in these maximally high-profile cases—may very well undercut its general credibility in plea negotiations with other defendants. I could very plausibly envision a defendant querying whether their prosecutor is reliably negotiating a plea: “Do you really have the power here, or could someone above your pay-grade overturn all of this? Am I wasting my time with you? How can I trust that you’ll fulfill your side of this agreement? Didn’t I hear that the government got a confession and then tried to wriggle out of the deal in those 9/11 cases?” (It’s important to note that, on my understanding, the government’s withdrawal from the pretrial agreements would seek to return the case to the status quo ante, and the government would not be able to use the confessional stipulations against the accused. The government contends this results in no prejudice. I’m inclined to disagree, but I leave that issue for another day.)

Now, it’s perhaps far-fetched that most or even many run-of-the-mill defendants will be so jaded by the government’s conduct in the 9/11 case. But critically it doesn’t take much to cause severe shockwaves to the criminal system. There are a lot of criminal cases and relatively few are going to trial. Even now there are concerning backlogs. High-profile cases loom large in our public psyche. And a decision that allowed a superior authority to scuttle a consummated plea deal would be turbulent. If even a small percentage of would-be plea agreements were consequently disrupted, resulting in trials, courts could face substantial resource shortages and delays.