Legal Black Hole Redux: The 9/11 Military Commission Plea Withdrawal
When a military commander makes a bad call, or a series of them, they are typically relieved of the duty pursuant to which the call was made. President Lincoln took this route with General George McClellan’s strategic dithering during the Civil War, as did President Polk with General Winfield Scott after he arrested subordinates for reporting out military errors during the Mexican American War. And President Truman famously relieved General Douglas MacArthur as the latter refused to abandon his audacious plan to invade China during the Korean War.
Quality control over decision-making authority looks quite a bit different in the Pentagon, from a human resources perspective, than in corporate America or other parts of the federal government. Secretary of Defense Lloyd Austin followed this model by effectively relieving retired Brigadier General (BG (ret.)) Susan Escallier of her duty less than a year after her appointment as convening authority for military commissions after she signed off on plea deals for three of Guantanamo Bay’s (GTMO) accused 9/11 terrorists last week. The Secretary noted in a memo to her that he now reserves to himself superior convening authority and, as such, rescinds those plea deals.
The Plea Deal
Days earlier, defense attorneys for Khalid Sheikh Mohammed, mastermind of the 9/11 attacks, and two accomplices, Walid Bin Attash and Mustafa al-Hawsawi, had reached agreements with prosecutors to avoid the death penalty in exchange for guilty pleas leading to life sentences. The judge, Colonel Matthew McCall, was amenable to accepting the pleas and, while calling for further briefings, the matter was forwarded to BG (ret.) Escallier as convening authority for approval, which was forthcoming. Legal “i”s were dotted, and “t”s were crossed.
Political ones were not. Secretary Austin learned of both the plea deals and Escallier’s approval after the fact on a flight back to Washington from the Philippines while dealing with new Middle East tensions arising out of Israel’s assassination of a top Hamas leader in Iran. Families of the nearly 3,000 victims killed in the 9/11 terrorist attacks were being contacted by Pentagon staff, even before the Secretary knew about it.
Letters from the chief prosecutor, Rear Admiral Arron Rugh, read,
We recognize that the status of the case in general, and this news in particular, will understandably and appropriately elicit intense emotion, and we also realize that the decision to enter into a pre-trial agreement will be met with mixed reactions amongst the thousands of family members who lost loved ones. The decision to enter into a pre-trial agreement after 12 years of pre-trial litigation was not reached lightly; however, it is our collective, reasoned, and good-faith judgment that this resolution is the best path to finality and justice in this case.
That, in turn, triggered a 45-day clock within which families could send questions to the co-conspirators which would be answered by the end of the year with sentencing set to be decided in 2025 and another opportunity for family members to make statements to the court.
Backlash
Reaction from the families, the public, and Congress was swift, negative, and public. Concerns ranged from foreclosure of access to the co-conspirators as families continued to press their case in federal court to hold Saudi Arabia accountable for its complicity in the 9/11 attacks, removal of the death penalty as punishment for the murder of their loved ones, and the potential for the defendants, once incarcerated for life, to go free in a prisoner-swap much like the one struck by Washington and Moscow that very week.
The White House claimed to be as surprised as everyone else, maintaining they had “no role” in the decisions. The intensity of the backlash no doubt fed into Secretary Austin’s decision to rescind the plea deals, strip BG (ret.) Escallier of approval authority, and attempt to reset the legal process for these men back onto a track leading to full trials and the potential imposition of the death penalty. To be fair, he was already primed in favor of trials prior to learning of the approved deals. Nevertheless, this very public spectacle of whipsawing decisions concerning what do to about and within GTMO is nothing new and occurs within a larger context of the rule of law struggling and failing to take hold.
A “Legal Black Hole”
Guantanamo Bay’s detention facility, Camp Delta, was conceived in illegality. The opening of GTMO as a “legal black hole” into which the American government could throw foreigners scooped up in its so-called Global War on Terror was part of a long string of illegal actions undertaken by the Bush Administration in the wake of 9/11, including refusal to extend prisoner of war status to those captured on the battlefield in Afghanistan in violation of the Geneva Conventions, operating torture centers in Eastern Europe, Iraq, and GTMO in violation of the Convention Against Torture, and invading Iraq in violation of the UN Charter.
Into GTMO’s legal black hole has also been fed an array of laws to deal with it. Over the past two decades, disagreement among the three branches of government has extended across eleven Congresses, three different administrations, and multiple compositions of the Supreme Court, resulting in adopted and struck down legislation, ephemeral executive orders, and progressively obtuse judicial decisions.
Bringing the rule of law to GTMO is a fool’s errand. Easily three platoons’ worth of JAG officers, judges, and attorneys have tried to do so. Despite worthy efforts, these have failed. GTMO is still a legal black hole. Although 780 people from 48 countries have enjoyed “extended stays” in our Cuban resort, only sixteen have ever been charged with criminal offenses. 740 have been transferred elsewhere through cooperation agreements with States willing to take them and 9 have died in custody. Only 30 remain. Their cases have lingered across the years to the point that they can be considered indefinitely detained without trial. This is one reason why Judge McCall and BG (ret.) Escallier were likely eager to accept guilty pleas, close the files on three detainees, and move forward to ending the legal mess begun 22 years ago. President Obama ordered the facility closed but was overruled by Congress. President Trump ordered it kept open. President Biden vowed to close it by the end of his term. It will not be.
Yet what observers call the “least bad option” that the Pentagon’s attorneys sought to achieve through these plea deals may still be within reach. In the wake of Secretary Austin’s cancellation of the approved agreements, Judge McCall, noting that “everybody must follow the rules, including the secretary of defense,” ordered both sides to produce briefs on the legality of the Secretary’s revocation.
Arguments by defense counsel are likely to center on Secretary Austin’s actions overruling those of BG (ret.) Escallier. The law generally does not embrace assertions of authority ex post facto to overturn legal processes which have previously been approved because to do so raises a troubling presumption that legal decisions can be overturned simply because those in power don’t like them. Undue influence and political interference with the independence of the commission will likely also be raised, as well as whether Secretary Austin effectively breached a contract with the defendants.
Concluding Thoughts
Civilian control over the military is one thing and it is to be lauded. But civilian political interference in military legal process is quite another. This sad chapter fits squarely into that broader context of illegality that has dogged GTMO’s detention facility since its inception. One of the reasons an earlier version of GTMO’s military commissions were held unconstitutional by the U.S. Supreme Court in Hamdan v. Rumsfeld was because President Bush himself was designated the sole appellate decisionmaker with authority to overrule commission decisions he didn’t like. Despite history and context to the contrary, it will now be up to Judge McCall to rescue some scrap of the rule of law in GTMO as his commission moves forward.
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Michael Kelly holds the Sen. Allen A. Sekt Endowed Chair in Law at Creighton University School of Law.
Photo credit: Tech. Sgt. Michael Holzworth
