Another shocker. That’s our reaction to the decision of a military appeals court rejecting Secretary of Defense Austin’s attempt to toss out a plea deal for Khalid Sheik Mohammad and two others being held at Guantanamo for orchestrating the attacks of 9/11. Mr. Austin, who comprehended the miscarriage of justice that the plea deal represented, had gamely tried to block the agreement after it was struck. The latest ruling against him is an outrage.

To us it recalls the first words we wrote after 9/11 — warning against treating the attacks of that doleful day as a criminal matter for the courts. Rather than treating it as an outbreak of war, as it should have been dealt with. Yet here we are, some 23 years later, tangled up in pettifogging over what to do about the mastermind of the whole attack. The whole thing has become a disgraceful performance. 

What a contrast with, just to pick one example, the landing of German saboteurs on Long Island and Florida during World War II. In the nighttime of June 13, 1942, four men came ashore near Amagansett. Another group made shore near Jacksonville, Florida. Their purpose was to bring the war to American soil. Yet, the FBI’s website reminds us, by June 27 — some two weeks later — all eight saboteurs were arrested. 

A decision was quickly made to try them before a military commission. They were found guilty. One drew life, another 30 years, and six received the death penalty. They were sent to their doom within a matter of days. And Americans were spared the insult and humiliation of having their enemies leer at them from the confines of an American prison. A signal of resolution and determination was sent to our enemies around the world.

During World War II, the federal government understood the illogic of applying niceties of Constitutional due process to foreign belligerents — those who seek to wage war against America. The result has been some two decades of legal wrangling over how to hold the 9/11 terrorists accountable, an evasion of justice. The decision by the military appeals court to let stand the terror plotters’ plea deals is but the latest episode in what has become a legal farce.

The root of the problem is the Supreme Court’s decision in a 2006 case, Hamdan v. Rumsfeld. The Nine then allowed the 9/11 planners to be tried under military tribunals, but gave the defendants extra protections. The court decided that the “law of war” dictates that “the same procedural safeguards afforded in U.S. courts-martial” must “be afforded to enemy combatants,” one former military lawyer, Scott Silliman explained. 

An earlier Supreme Court, though, in Ex Parte Quirin, had approved a military trial for those World War II saboteurs. The Nine then discerned a distinction between “lawful and unlawful combatants.” The unlawful combatants were not owed due process. It’s a marker of how much wiser FDR was than President Biden, who, ironically, gave pride of place among the portraits in the Oval Office to the president who insisted that a  military commission try the saboteurs.

Hamdan was a complex case (he was ultimately acquitted). The error of that approach, though, is coming into ever-clearer focus as our government now finds itself unable to pursue the death penalty against the 9/11 mastermind. Americans can still work toward revisiting this question at the Pentagon — and a reappraisal before a high court whose composition has changed since 2006. Justice could yet be done in the case of the 9/11 plotters.