Secretary of Defense Lloyd Austin put his thumb on the scale in United States v. Khalid Shaikh Mohammad on Aug. 2 when he revoked plea agreements that the government and three defendants on trial in the Guantanamo military commissions had signed just 48 hours prior. The pleas would have brought the 9/11 case to a close for three of the four remaining defendants after 12 years of interminable pretrial litigation (the presiding judge found the fifth defendant, Ramzi bin al-Shibh, incompetent to stand trial in September 2023). The defendants would plead guilty in exchange for life imprisonment, without guarantees for certain conditions of confinement that they had sought throughout nearly two years of plea negotiations. For those familiar with the 9/11 case’s myriad and, at times spectacular, defects, it was remarkable that the government was able to get such a good deal.
Austin’s decision to intervene in the litigation at the 11th hour, to scuttle the pleas, fatally compromised the case’s independence, and may have squandered the only remaining chance at judicial finality and some measure of justice. But then, on Nov. 6, military judge Colonel Matthew McCall ruled that Austin did not have authority to withdraw from the pleas and, accordingly, he reinstated them.
The ruling offered the Biden administration, whose stated policy position has been to close Guantanamo (which requires ending the military commissions), a lifeline. It was an opportunity for Austin to acknowledge that while he reasonably believed he acted within his authority when he revoked the pleas, he would respect the court’s decision — and the judicial process more broadly — by allowing the case to move forward free from any further inappropriate interference. Instead, he doubled down by instructing prosecutors to appeal.
Austin has now set President Joe Biden up to be the one whose administration snatched defeat from the jaws of improbable victory in the most important terrorism prosecution in U.S. history. But it is not yet too late to reverse course.
Judge McCall’s Ruling
McCall’s ruling centered on the Aug. 2 memorandum that Austin sent to the convening authority (CA) for the Military Commissions, Brigadier General (Ret.) Susan Escallier. It reads as follows:
I have determined that, in light of the significance of the decision to enter into pre-trial agreements with the accused in the above-referenced case, responsibility for such a decision should rest with me as the superior convening authority under the Military Commissions Act of 2009. Effective immediately, I hereby withdraw your authority in the above-referenced case to enter into a pre-trial agreement and reserve such authority to myself.
Effective immediately, in the exercise of my authority, I hereby withdraw from the three pre-trial agreements that you signed on July 31, 2024, in the above-referenced case.
In an unambiguous and concise opinion, McCall ruled that Austin did not have the power to do what he purported to do.
Austin had signed a memorandum on Aug. 21, 2023, appointing Escallier as the CA for the Guantanamo military commissions. His memorandum required her to “exercise her independent legal judgment” with regard to judicial acts and other duties of the CA. Prior to Aug. 2, 2024, Austin did not curtail any of her authority. None of the applicable rules and regulations that provide for or govern her authority changed either. Acting pursuant to her authority, Escallier authorized prosecutors to engage in plea negotiations, approved the agreements the parties reached, and signed them.
Austin knew for at least a year that plea negotiations in the 9/11 case and other commissions cases were underway. According to McCall, “Collectively, these circumstances indicate that everyone — including the Prosecution, all Defense teams, the Secretary of Defense, and Ms. Escallier herself — understood Ms. Escallier possessed the legal authority to sign the Offers for Pretrial Agreement submitted to her and the agreements became binding upon her signature. It was appropriate and correct for each entity to understand that agreement as the status quo.” The defendants then began performance of the agreements by refraining from filing motions, requesting discovery, examining witnesses, or arguing motions. The defendants even signed stipulations of fact related to the crimes for which they are accused.
The crux of McCall’s opinion goes to timing. While some military commission rules and instructive military law jurisprudence would allow Austin, as a “superior convening authority,” to withhold from Escallier her right to take certain actions prospectively, the governing rules provide no basis to withdraw retroactively a subordinate’s authority to act after that authority was duly delegated. Were Austin permitted to “delegate authority to Ms. Escallier, recognize her independent discretion, then reverse that discretion upon disagreeing with how that discretion was utilized,” it would give him an “absolute veto over any discretionary act of the Convening Authority with which he disagrees.” That prospect, McCall continued, “is wholly inconsistent with the delegation of independence in the performance of her duties — a delegation that the Secretary of Defense personally gave Ms. Escallier concurrent with her appointment as the Convening Authority — and the notion that a superior is not permitted ‘in a specific case and after-the-fact, to influence directly the action of a subordinate convening authority with respect to the latter’s judicial acts already properly taken in that case…’” McCall further noted that while he was not resolving the defendants’ motions on unlawful influence grounds, “the idea that each of the Convening Authority’s actions and decisions are immediately reversible if the Secretary of Defense disagrees raises the specter of unlawful influence.”
McCall also rejected the government’s ancillary “bundle of sticks” argument; that Austin could reserve to himself a particular authority — i.e., pull any one stick from the overall authorities bundle — in a manner that would require the case to have two CAs. If the Aug. 2 memorandum was enforceable, that would be the result here because, by its terms, Austin only reserved authority to enter into plea agreements, not withdraw from them (an authority that, by rule, is not subject to the limitation Austin seeks). Not only would multiple CAs create process issues and forum-shopping concerns, but also, and more importantly, McCall found it “difficult to foresee the functionality of a system of co-convening authorities over different aspects of the same case where one is the boss of the other, yet remain faithful to statutory, regulatory, and case law prohibitions against unlawful influence.”
Finally, McCall determined that even if Austin’s action was lawful, he still could not withdraw from the defendants’ plea agreements. In other words, regardless of who was vested with the CA’s authority to withdraw, the CA loses the right to do so once the defendants begin performance of the terms of their agreements. As explained above, they clearly did so here by refraining from filing motions, requesting discovery, examining witnesses, arguing motions, and, importantly, by signing stipulations of fact.
For all of the opinion’s straightforward and persuasive reasoning, McCall best characterized the whole of Austin’s actions and prosecutors’ defense of them in three damning sentences: “The Prosecution’s argument presents a vision of a judicial system where the Secretary of Defense enjoys plenary authority to act in any ongoing cases referred by a duly appointed convening authority. This, of course, is antithetical to the military justice system as it has historically functioned. The 2009 [Military Commissions Act] is not so sufficiently distinct from the Uniform Code of Military Justice to adopt such an expansive and unrestrained interpretation of the Secretary of Defense’s authority.”
What is Austin Hoping to Accomplish?
The sum total of Austin’s public explanation for revoking the pleas is that he has “long believed that the families of the victims, our service members, and the American public deserve the opportunity to see military … commission trials carried out.” He has offered no further explanation for his decision to appeal Judge McCall’s ruling.
Giving Austin the benefit of the doubt that these are not purely political decisions in response to some lawmakers’ pushback when the pleas were first announced, he must be after something more than the remote prospect of a trial alone. Two plausible explanations are that he thinks a trial would result in a penalty more severe than life imprisonment — so, death — or that a trial would disclose more of the information that some victim family members want (more on that below) than would the plea process. He would be wrong on both counts.
With respect to the death penalty, the decision by the administration of then-President George W. Bush to torture the defendants, then try them in a novel war court system, almost certainly took that punishment off the table from the outset. It was, in effect, the first nail in the coffin for the death penalty in the 9/11 prosecution. In the only military commission case to date where a military jury has heard in-depth about a defendant’s torture at the hands of U.S. personnel — U.S. v. Majid Khan — the senior military officers comprising the jury recommended nearly the lowest possible sentence and urged the convening authority to grant clemency. Even were the 9/11 defendants to receive a death sentence, fundamental fairness concerns would likely doom any such sentence upon federal court review, especially because the case is built largely on evidence tainted by torture.
And now, perhaps ironically, Austin’s own actions seem to have specifically foreclosed the death penalty by triggering a specific provision in the plea agreements. In the final footnote of Judge McCall’s ruling, he explains, referring to Mohammad and co-defendant Mustafa al-Hawsawi, that “paragraph 40 of Mr. Mohammad’s PTA and paragraph 39 of Mr. Hawsawi’s PTA appear to have the effect of precluding capital litigation if the Convening Authority withdraws from the PTA for a purpose other than those specifically agreed to within their PTAs. None of those agreed-to bases for withdrawal apply.” The third defendant, Walid bin Attash, apparently has a similar, though not identical, provision in his agreement.
With respect to transparency, military commissions trials are not designed to surface all truth. Prosecutors introduce evidence, call witnesses, and pursue lines of questioning that they think will secure a conviction. Defense counsel do the same in service of challenging the government’s case. It is possible that lawyers’ strategic decisions could overlap with victim families’ interests, but there is no guarantee.
By contrast, if the goal is to learn as much information as possible from the defendants themselves, their plea agreements are the best vehicle. In addition to the stipulations of fact each defendant signed, each agreement requires the defendants to submit to “a process to respond to questions submitted by [victim family members] regarding their roles and reasons for conducting the September 11 attacks.” There is no limit on the number of questions or their substance.
Some victim family members have long sought and continue to pursue, including through litigation, specific information about Saudi Arabia’s role in the September 11 attacks. For a trial in the 9/11 case to produce any such information beyond what the defendants may know and what the Biden administration has already disclosed, the case would first have to reach that phase; then one of the parties would need to seek the information; the information would need to exist; the government would need to turn the information over; and the government would need to declassify that information so that it could be released publicly. It is not impossible that all of those conditions could be met, but it is awfully close.
During a hearing earlier this year, prosecutors told McCall they were concerned the case “may never go to trial,” and that was before the protracted litigation that will now ensue over enforceability of the pleas. If the case ever makes it to trial, it would be defense counsel who would need to make discovery requests for information about Saudi Arabia’s role in 9/11 (because if the government had more information than the Biden administration has already released, and prosecutors thought the information was relevant, both the prosecution and the defense should already have it). More importantly, to the extent additional information does exist, based on disclosures thus far it is difficult to fathom that the executive branch will declassify it in the foreseeable future, regardless of who is in office.
Leading up to the 20th anniversary of the 9/11 attacks, almost 1,800 victim family members sent a letter to Biden opposing his participation in memorial events unless the government declassified evidence that they believed would show a link between Saudi Arabia and the attacks. In response, Biden issued an executive order directing the Department of Justice and other relevant agencies to conduct a declassification review of information related to the FBI’s September 11th investigations. The process led to the disclosure of a host of documents, some heavily redacted. It is far more information than the George W. Bush, Barack Obama, and Donald Trump administrations were willing to release, and all of those administrations cited national security concerns as the reason for why responsive information could not be disclosed to the public.
Even in a world where the 9/11 case could make it to trial, three defendants pleading guilty now does not meaningfully affect that remote prospect, if at all. Nor does it make any more likely the remote possibility that defense counsel would request all of the information that different victim family members seek, including — if it exists — any additional information related to Saudi Arabia’s role in 9/11, and that the government would declassify and turn over all such information. Why? Because there is a fourth remaining defendant in the 9/11 case who did not plead guilty: Ammar al-Baluchi, who continues to litigate. In fact, if the pleas were to go forward, it would give those most interested in information disclosure potentially two bites at the apple: the first, at the sentencing and mitigation phase for the defendants who pled, where defense counsel could request all of the same information, and the second opportunity if/when al-Baluchi reached trial.
In sum, if Austin has been persuaded to use the 9/11 case — specifically is it relates to defendants Mohammad, Hawsawi, and bin Attash — to try to pry loose more information about Saudi Arabia’s role in 9/11, it is a vanishingly thin reed on which to gamble the judicial finality and measure of justice that many victim family members have demanded desperately for years.
A Path Forward
As of this writing, although the government has said it will appeal to the Court of Military Commission Review, it has not yet filed the petition itself. Even if it does, all it would take to stand down is for the government to request voluntary dismissal. In the meantime, the plea process could move forward without delay.
In December last year, Austin gave remarks at the Reagan National Defense Forum in Simi Valley, California, titled “A Time for American Leadership.” He said:
As the old saying goes, if you think education is expensive, try ignorance. And if you think American leadership is expensive, consider the price of American retreat.
Over the long sweep of American history, the cost of courage has always been dwarfed by the cost of cowardice.
And the cost of abdication has always far outweighed the cost of leadership.
President Biden and Secretary Austin still have an opportunity to demonstrate such leadership in the 9/11 case by simply allowing the outcome that prosecutors, the CA, and the defendants all want. Should they fail to do so, many 9/11 victim family members will continue to pay what has been an increasingly devastating price.