“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Trump D.C. Circuit judge Neomi Rao cast the deciding vote that allowed withdrawl of the government’s consent to a guilty plea by key 9/11 plotters, including Khalid Sheikh Mohammed (KSM), that had eliminated the possibility of sentencing them to death. Rao voted with Judge Patricia Millett, who had been nominated by President Obama, in the July 2025 ruling in In re United States, to which Obama nominee Judge Robert Wilkins dissented.
What happened in this case?
After years of extensive pre-trial proceedings at Guantanamo, 9/11 mastermind KSM and several co-conspirators entered into a guilty plea agreement with the government in July, 2024. The agreement took the death sentence off the table, but required that the plotters remain confined in prison for life and be questioned directly by victims’ families.
After political turmoil about the plea deal, however, Secretary of Defense Lloyd Austin sought to withdraw from it and have the case go forward. A military judge and the Court of Military Commission Review, however, concluded that the deal was binding and Austin did not have the authority to withdraw from it. The issue then went to a panel of the DC Circuit.
How did Trump judge Rao rule and why is the result harmful?
Judges Rao and Millett wrote a 2-1 opinion that reversed the decision below and allowed the government to withdraw from the plea agreement. They maintained that the prosecution “implicates a national interest of the highest degree,” that the decision about whether the plotters should be sentenced to death “is a grave one that requires political accountability,” and that the decision about whether to seek the death penalty should proceed “according to the secretary’s best judgment.”
Judge Robert Wilkins, however, strongly dissented. He found that the record “clearly and indisputably” shows that the plotters had already begun performing several of the promises they had made as part of the agreement, such as by entering into factual stipulations and waiving a pending motion to suppress. On the other hand, he wrote, the majority failed to cite a single case or authority to justify the relief they ordered, and that “settled law requires” that courts defer to the judgment of military courts in cases like this “[no] matter how high the national interest.”
The ruling places the prosecution of the case in the hands of current Defense Secretary Hegseth. The presumption is that the prosecution will go forward, with the death penalty on the table, and will continue to take a long time before final resolution is reached.
This case illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.