Accused 911 Mastermind Gets Deal to Avoid Death Penalty

on US soil that's dragged on for decades. The Pentagon announced that Khalid Sheik Mohammed and two of his accomplices will plead guilty to the murder of two nine hundred and seventy six people in exchange for a life sentence. Terry Strata, the head of the nine to eleven Families United group, told DW News that the vast majority of the families are angry and feel that justice was denied.

plea deal. When detainees were captured, whether on the battlefield or elsewhere, those agencies that picked them up were not preparing a case for trial. They weren't collecting evidence as you would in order to prosecute a criminal trial. There have been issues of evidence or confessions that have been obtained allegedly by torture. There are legal challenges that have been made some of which have gone all the way up to the Supreme Court that have slowed down the process.

And whenever you set up an entirely new court system, you have to basically develop all kinds of rules and processes from scratch.

They've been charged, among other things, with murdering three thousand people in the September eleventh attacks, and the basic terms of the plea deal are that they will plead guilty to murder and other charges in return for a life sentence rather than the possibility of a death penalty.

have been a disaster. I do feel for families of the September eleventh victims who have had to endure the pain, especially of watching this unfold, and I know that they want finality, and many of them are very supportive of the death penalty. But even if it were carried out, and I'm very skeptical that the government would actually have been able to impose the death penalty, I think in this case it would make a martyr of these detainees.

account all of these various factors. As I said, I don't think the death penalty ever would have been carried out in this case, and I think carrying out would have carried immense damage to the United States interests, especially abroad.

That's been one of the problems plaguing military commissions from the beginning, is that this is an untested process.

to eleven attack plot. I don't know why we're now talking about a deal involving only three, but over the course of the last few years, we've heard that this deal is sort of on again, off again, and so there are any number of possible reasons why.

for example, in their home countries. Of those who remain at Guantanamo, about half have also been approved for some sort of transfer, but we don't know whether that will happen anytime soon. A few, though, will never be charged. They're going to be held indefinitely without any sort of prosecution.

I think Guantanamo has been a failed policy. It was originally opened to be a place that would hold only the very worst of the worst, and it turned out that many detainees who were brought there should never have been either they were is like mistaken identity, or they

were low level Al Qaeda or Caliban figures. It was also supposed to be an interrogation and intelligence center where the government would be able to obtain a vast amount of information about future Al Qaeda plots and networks, and I think it failed in both its detention mission and its intelligence mission. That doesn't mean that it was not valuable in some important ways. It kept many very, very very dangerous people off the battlefield and prevented them from

conducting further attacks. It also did provide some important intelligence information, never as much as I think was expected, but it did provide some very very important information. But from the beginning, there was never really a good plan for what was going to happen to the detainee's long term. There were insufficient processes put in place for figuring out which detainees

should be detained there and which ones shouldn't. It is indelibly associated with this idea of a legal black hole and with torture, and I think many of those costs continue to accrue over time.

I'm June Grosso and you're listening to Bloomberg. The ultra conservative Rogue Fifth Circuit has done it again, plotting a novel legal path in another attempt to limit federal agency power, this time by limiting Congress's ability to delegate decision making

to regulators. In a nine to seven on Bank decision, the Appellate Court ruled against an eight billion dollar a year FCC program intended to boost phone and broadband service for poor and rural communities, finding that it's an unconstitutional delegation of Congress's taxing authority. The decision is contrary to decisions by three other circuits, making the fifth circuit once again an outlier. Joining me is John Bergmeier, legal director at Public Knowledge. So at the center of this case

is the FCC's Universal Service Fund. Tell us about that.

charge that they have to pay. They do tend to sort of put it on consumers' bills and kind of make people think it's like a tax on consumers directly, but it's not. If there's a charge that is on the telecommunications companies themselves, and then the money that they pay goes into a fund, and then the fund is used to subsidize broadband and telephone service to areas where it might not be economical, so rural areas where it's hard to make a business case to invest might help

out there. It also helps low income people so there's something called the Lifeline and link up programs that make communications services more affordable, and it's also used to help

provide broadband to anchor institutions like schools and libraries. So it's really part of making sure that the country as a whole and everyone in it kind of regardless of where you live, has access to telecommunication because it's one of the things that ties the country together, something that is really seen as benefiting not just the people who you know are getting access to communication services that they otherwise might have access to, but it really helps the

nation as a whole. I mean, just like it's good that you can send mail to rural Alaska with a stamp and you can communicate with them. That's like a benefit to people, even who live in cities. It's seen as sort of like a benefit for everyone.

won out. And as to why now, I would expect because they see that with the shift in the makeup of the judiciary and increasingly, you know, a lot of Trump appointed judges, increasingly conservative judges who are willing to just all of a sudden find programs and policies that have been in place and supported on a bipartisan basis, as well as by both industry and consumer groups like my own. They felt like they'd have a chance of success, and at least this Fifth Circuit ruling shows that they

were right. They did succeed. However, I do expect its going to go to the Supreme Court because so many other appellate courts have ruled otherwise.

argument that they're making is a delegation challenge. Then the law of the land, which has been in place for a long time, is that, you know, Congress can't delegate this like actual core legislative functions. You know, Congress can't just say we're going to create an agency and the agency is going to pass all of the laws. But Congress can delegate functions to agencies as long as they

give them what it's called an intelligible principle. And here the intelligible principle is it's like, okay, SCC, you can't just do whatever you want. You just have to do things that are, in your judgment, designed to ensure universal access to communication services. And the reason you want an agency to do this instead of Congress is because it's a very fast moving landscape in our country. We've gone

from telegraph the telephone to broadbands. We have you know, wireline phones and wireless phones, and it's like a very shifting landscape, and we see the speed at which Congress operates and the general level of technological expertise that your cytical Congress might have. It's just not practical to have them just decide exactly how.

the first argument they made. And then the second argument they made is that this entity that the SEC works with to decide exactly how much telecommunications companies have to pay into the fund. It's called USAC, the Universal Service Administrative Company, and it sort of does the accounting for the SCC, like it keeps track of revenues and it figures out how much has to be paid by who. This company, by the way, the nonprofit, it's a federally

chartered nonprofit. It doesn't have any real legal power. All it can do is like accounting, what we'd call ministerial work. And then it just proposes things to the FCC and it's up to the SBC to look at the proposals and then smount of public comments, just like it does with other any FCC rulemaking, and if it agrees, then that becomes the law. So it's still the SEC that

ultimately is in charge of the regulations. Now, the plaintiffs in this case, Consumer Research and the Fifth Circuit, they make a lot They say, oh, this is just like a formality because the SEC never rejects the USAC proposals. Well, there's a really good reason why the SEC doesn't reject the USAC proposals. It's that the SEC basically controls USAC to begin with. The board members of this nonprofit corporation

are appointed by the chair of the SCC. So you wouldn't really expect that a nonprofit company whose board members are appointed by the SCC, who have to follow SEC rules and all they do is basically accounting. They don't make policy choices, they don't interpret the law, they don't advocate for changes in the law. They just do accounting. So why would you expect their accounting work to be

somehow rejected by the SCC. But this was used as a pretext by the plaintiffs, and I would argue the Fifth Circuit to say, oh, you know, the SCC, so this is a second argument that's in the case has delegated a government function to a private entity. So, in addition to the principle that Congress can't delegate its basic legislative functions to agencies, governments themselves can't outsource core government

functions to private entities. However, governments always work with private companies for these sorts of ministerial type, non policy making, no legal authority kinds of work. So what the Fifth Circuit held was, even though the Universal Service has been found to be not an unconstitutional delegation of legislative authority in the past, they basically said, when you take these

two things together combined, they become unconstitutional. And as the defense from the case point out, this is completely breaking new ground. It is ignoring Supreme Court President, it's ignoring what other circuits have said, and it really gives the federal government and agencies effectively zero guidance as to what they can do going forward.

that is still unconstitutional. I think the problem is with the Fifth Circuit in particular, and this is not just my opinion. You see it in how many times the Fifth Circuit has been reversed by a very conservative Supreme Court. So, I mean, when the Fifth Circuit is constantly being reversed by what is known as the most conservative Supreme Court in recent history, you know, they're kind of like going out on a limb and I think that they would

just move the goalpost no matter what is done. I would suppose that they might try to find a way to find it unconstitutional, but they're sort of taking the document at its word. Then yeah, maybe you could fix one or two of the problems and have it proceed. And the short term, what they did was they just sort of remanded the issue back to the FCC. So the FCC is going to have to consider how to proceed bull skin terms of how can they possibly comply

with the so called guidance of the Fifth Circuit. But what's really going to happen is the SEC is certainly going to appeal this to the Supreme Court. And like I said, the fact that other circuit courts have very recently ruled the exact opposite means that very likely the Supreme Court is going to resolve this, and I would imagine that universal Service, Well, there might be like some sort of ruling that puts the Fifth Circuit ruling on hold temporarily while the appeal continues.

ability to delegate decision making to regulators. The appellate court found that the FCC's Universal Service Fund is an unconstitutional delegation of Congress's taxing authority. The ruling is novel and is contrary to the decisions of other circuits, establishing a circuit split with the six and eleven Circuits, which could catch the attention of the Supreme Court. I've been talking

to John Bergmeier, legal director at Public Knowledge. Judge Ohman, who wrote the majority opinions, described the fee, which is collected from the telecommunication companies but is often passed on to consumer's phone bills, according to the court, as a multi billion dollar tax. Nobody voted for what's your response to.

has to pay no matter what. Well, a fee is something you know, maybe you pay to enter a national park. That's a fee. And the Universal Service Assessment against telecommunications companies has long been seen as a fee because it's not something that like all companies have to pay into. Rather, it's like a cost of doing business if you want to be part of the telecommunications network, and you get benefits from it too, because the communications network is regulated.

The telephone network, for example, has been regulated by the SPC. That's why you can be on a Verizon cell phone and call someone who's an AT and T customer. You know, it's not just a private proprietary network. But we have like policies and laws that talk about how these different

networks interconnect with each other. And it's long been seen if you want to participate in the in the communications network and get the benefits of SEC regulation phone numbers, you know, phone numbers are administered by the government, and really even to look at the broadband space, you know, the system of it, addresses and things like that, that's fundamentally you know, that comes from federal policy. So it's

been long seen as a fee. It's like, if you want to be a telecommunications network, you pay into this. It's a cost of doing business, but not necessarily a tax. And the Fifth Circuit has precedent which says exactly that, as does the Supreme Court, you know, and whether or not you would agree with that, the Fifth Circuit is supposed to follow with the Supreme Court, not just sort of chart its own path. But they decided in this

case that they get to call it a tax. In part, this is because the SPC long ago allowed communications companies to sort of present it as though it were a kind of sales tax on consumers bills, which I think has always been a little bit misleading because it's not the same as a sales tax. It's assessed on users. It's more like a regulatory cost of doing business. That's like, if you're a restaurant, you have to, you know, pay to comply with health department codes, and those costs will

get passed along to the consumer. So, you know, I think in part, the sort of semi misleading way that universal service fees have been presented to consumers, you know, gives some rhetorical weight to this notion that it somehow attacks on the American people. But when you dig into the details, you see that's not even true.

true outlier. So, for example, there was a case, the Mercy case, that went up to the Supreme Court about whether or not the Biden administration was able to sort of communicate with the social media companies at all, and the Fifth Circuit, you know, basically had a broad ruling forbidding any contact between the administration and tech companies about content moderation issues, and that was reversed by the Supreme Court.

And really unusually, there's a footnote in the opinion that basically just takes note of the fact that some of the so called facts of the case that the Fifth Circuit accepted, it's like, are not remotely true. So it's not just so they got the law wrong. They deliberately distorted or accepted obvious, blatant distortions of the factual records. And also the Fifth Circuit upheld Texas's social media censorship law, which would have taken away the content moderation rights of

private companies. Well, the Supreme Court recently said no Facebook and Twitter when it comes to moderating content and deciding what people see and what users are allowed to use these private platforms have the same First Amendment rights as

other private companies like newspapers. So I think those are two recent areas where I know they've been reversed, But there's been a ton in areas that I don't necessarily work on, with access to medications and just trying to overrule the sec or constrain the administration in terms of

immigration policy. So it's been I would just have to characterize it as a conservative activist court that is attempting to impose their political views on the American people by just ignoring decades of a Supreme Court president.

rid of Chevron. A lot of people in the conservative legal movement, the federal society types, have long wanted to get rid of Chevron. So the Fifth Circuit, you know, in terms of you know, hostility to doctrines like that, was maybe not as far ahead of the Supreme Court as they are here. But here this is a program that has been supported by industry, by the broadband industry, at and T, you know, the major cable companies, comcasts.

They all think that everyone has ideas of how the program should be fixed, of course, and there's disagreements about the exact details of how the program works, but the basic idea that there should be a universal service program that we should try to connect all Americans to the communications network. That is a policy that is supported by

consumer advocates, industry, left and right. And the only outliers are these radical anti tax, anti government activists who unfortunately have found a willing year in some of the more extreme members of the Fifth Circuit who unfortunately seem to make up a majority of it these days.

various iterations of this case. Says that have been brought repeatedly by this organizational kind of explain like the history and purpose of universal Service and one of the things that we fight for is ensuring that all Americans have access to affordable and reliable communication services, no matter who they are and no matter where they live.