Last week’s on-again, off-again plea bargains involving alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM) and two other men facing military commission trials at Guantánamo Bay are a legal train wreck and a serious embarrassment for the government.
Military commissions (like courts-martial and unlike normal federal and state courts) are not standing courts. They come into being when convened by a senior official who is authorized to refer charges for trial. Congress has vested the power to convene commissions and dispose of charges in the Secretary of Defense. By statute, the Secretary may delegate those powers, as he did last year to retired Army JAG Brigadier General Susan K. Escallier. Under the rules for military commissions, he can also withhold her “authority to dispose of charges in individual cases, types of case, or generally.” Importantly, the convening authority’s powers include the acceptance of pretrial agreements (plea bargains in civilian parlance).
On July 31, General Escallier reportedly signed pretrial agreements with the three defendants. The agreements were negotiated over a protracted period (years not months). Their approval was recommended by the military commission prosecutors. General Escallier is a lawyer and former Chief Judge of the Army’s highest court. As with capital cases that end in plea deals in the civilian context, the centerpiece of these agreements was a provision that precluded death sentences. The agreements provided for guilty pleas – a provision that is strongly in the government’s interest because contested trials would inevitably shine a light on the torture of the accused committed by CIA personnel, and might not survive on appeal. Indeed, another provision would have waived the defendants’ right to appellate review, thus finally bringing these cases to an end. This is no small matter, given the 13-year history in these cases already, with no trial having commenced.
Two days after the agreements were reached, Secretary of Defense Lloyd J. Austin III, facing a firestorm of pressure, hurriedly withdrew General Escallier’s authority to enter into pretrial agreements in the three cases and reserved that authority to himself. His memorandum concluded: “Effective immediately, in the exercise of my authority, I hereby withdraw from the three pre-trial agreements,” the ones that she had signed and submitted. While a properly lawyered memorandum might have explained the rationale for such an extraordinary action, the only reason the Secretary furnished was “the significance of the decision to enter into a pre-trial agreement” in these cases. This explains nothing and his action, though discretionary, will be subject to attack as an abuse of discretion.
The sequence of events is deeply disturbing. Secretary Austin was fully aware of the lengthy plea negotiations – was their recent culmination really a surprise? The flow of information – or the lack of flow – will certainly be examined. And the buck surely stops at his desk for such an incredibly mismanaged process, regardless of what he knew at the time the plea deals were signed and submitted. Whether this episode will spell the end of his service remains to be seen, and is perhaps unlikely given the current explosive situations in the Middle East and Ukraine as well as the fast-approaching election.
Pretrial agreements are contracts—one set of promises exchanged for another. They became binding when they were approved by General Escallier. The Manual for Military Commissions permits the convening authority to withdraw at any time before the accused begins performance, but Secretary Austin could only do so if he was properly exercising the functions of the convening authority. He wasn’t because his withdrawal of power from General Escallier was defective. Specifically, under his memorandum, she remained the convening authority not only for other military commission cases, but even for these three cases. In these three, she can no longer enter into pretrial agreements. But nothing in the Military Commissions Act or implementing regulations permitted him to withdraw part of her power over particular cases, while leaving her the dregs, such as the resolution of routine administrative matters. Nor does the law permit him to withdraw only the power to enter plea agreements –perhaps the most important power the convening authority possesses–but retain other powers to dispose of the charges. Severing the pretrial agreement power from the rest was beyond his authority.
Could he cure this defect by withdrawing all of her power over these cases? Perhaps, but then he would have to assume responsibility for exercising all of the convening authority’s powers. He does have a day job, and it is not attending to these kinds of matters. A total withdrawal of her power over these cases would only add to what is already a highly embarrassing sequence of events.
Even if Secretary Austin was within his rights to withdraw General Escallier’s pretrial agreement power, there would remain the question of whether his doing so solely in order to veto the no-death-penalty provision was the result of either an “inelastic” view on his part or improper influence by others. Such questions are familiar in the world of military justice, and it seems fair to predict that these issues will be litigated energetically. If his views on the death penalty were inelastic, it could be argued that he was disqualified from serving as convening authority. And if there was improper influence, his action could be unraveled and the pretrial agreements reinstated.
At the very least, we can look forward to litigation over whether, as required by regulation, Secretary Austin “avoid[ed] the appearance or actuality of unlawful influence and otherwise ensure[d] that the military commission system is free of unlawful influence.” His failure to cite anything other than “the significance of the decision to enter into pre-trial agreements” in these cases—a factor that was present from Day 1 of his time in office—will make it that much easier to argue that in fact it was outside pressure that caused him to pull the plug on both the heart of General Escallier’s power and the pretrial agreements she approved.
Based on the publicly known facts, General Escallier has every reason to resign. Secretary Austin, a nonlawyer, failed to protect her exercise of independent professional judgment in approving the pretrial agreements and has now shown a lack of faith in her judgment. If she does resign, who would accept appointment as her successor under these circumstances?
Only recently, Congress shifted the power to decide who gets court-martialed from nonlawyer commanders to “special trial counsels” — trial lawyers who are independent of the chain of command. That legislation was spearheaded by Sen. Kirsten E. Gillibrand of New York, and represented a sea change in American military justice. Pretrial agreements in courts-martial now must be agreed to by these selected JAGs in many kinds of major cases, including murder. The legislation was driven by concern over sexual assault in the armed forces, but reflected the broader principle that charging decisions are quintessentially legal and should be made by lawyers. Unfortunately, when Congress changed the Uniform Code of Military Justice, it did not make a corresponding change in the Military Commissions Act. It should do so now in order to salvage what little is left of the credibility of the military commissions.
Speaking of Congress, the very day Secretary Austin reneged on the agreements General Escallier had accepted, Sen. Tom Cotton of Arkansas introduced a bill titled, “The Justice for 9/11 Act.” It refers by name to KSM and the two other defendants whose plea bargains Secretary Austin attempted in vain to cancel, and provides that notwithstanding any other provision of law, in the trial of these three individuals “a sentence of death shall be available.” The bill also provides that no plea agreement they enter into may preclude their trial under the Military Commissions Act or any other provision of law for the 9/11 attack. Section 949b(a)(2)(B) of the Military Commissions Act forbids any person from attempting to coerce or, by any unauthorized means, to influence the action of any convening authority with respect to their judicial acts. Whether that prohibition extends to federal legislators, it is shocking that a member of the United States Senate would submit a bill as transparently unconstitutional as Sen. Cotton’s (who presumably knows better having served in the U.S. Army and graduated from Harvard Law School). “The Justice for 9/11 Act” was surely intended to get Secretary Austin to kill the 9/11 pretrial agreements. If so, it worked like a charm.
Or did it? Instead of a day of reckoning and closure, we can look forward to further years of litigation. Whether based on backlash in some quarters (others welcomed the long-overdue resolution of the 9/11 case) or Secretary Austin’s own views, he has made it that much harder for the government to prevail, and has handed these defendants multiple avenues for appeal should there ever be a trial. The outcome is deeply ironic, since one of the things these three defendants reportedly agreed to give up was their right to appellate review.