Military Judge at Guantánamo Restores 9/11 Plea Deals, Rules Lloyd Austin Had No Right to Withdraw Them Three Months Ago

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On July 31 this year, a truly historic event took place at Guantánamo — in the military commissions, the trial system established to prosecute prisoners charged with acts of terrorism.

After two and a half years of negotiations between three of the men charged in connection with the terrorist attacks of September 11, 2001, their prosecutors and their defense teams, the Convening Authority for the Commissions, retired US Army Brigadier General Susan K. Escallier (who was previously the Chief Judge in the US Army Court of Criminal Appeals), entered into three separate pretrial agreements (PTAs) with Khalid Shaykh Mohammad (KSM), the alleged architect of the 9/11 attacks, and two of his alleged accomplices, Walid bin Attash, and Mustafa Al-Hawsawi. Of the five men originally charged in connection with the 9/11 attacks, one other man, Ammar al-Baluchi, is still involved in negotiations regarding his case, while the fifth, Ramzi bin al-Shibh, was ruled “unfit to stand trial” by a DoD Sanity Board last year.

Two days after the plea deals were announced, however, they were rescinded by the defense secretary, Lloyd Austin, in a decision that, shamefully, demonstrated a commitment to undying vengeance in defiance of reality on the government’s part, coupled with fear of even greater reality-defying vengefulness from Republicans.

Last week, however, the military judge in the 9/11 case, Air Force Col. Matthew N. McCall, reinstated the plea deals, issuing a ruling that exposed Austin’s ignorance when it came to understanding the delegation of responsibility to a Convening Authority in the military justice system from which the military commissions were derived, and which, to be strictly accurate, refuted the defense secretary’s ability to rescind the plea deals at all.

The origin of the plea deals

The plea deals were supposed to bring to an end 16 and a half years of failed efforts by the US government to successfully prosecute Mohammad and his alleged accomplices, which began when they were first charged in February 2008. That iteration of the military commissions, its second — after the first was struck down by the Supreme Court as unconstitutional in June 2006 — only survived until the end of George W. Bush’s presidency, when President Obama shut it down, pending a review.

Unwisely, the Obama administration decided, in November 2009, to revive the commissions once more, while, at the same time, announcing its intention to prosecute KSM and his alleged accomplices in federal court in New York.

Cowed by hysterical, scaremongering criticism, Obama eventually abandoned the proposed federal court prosecution, returning the men to the military commission system, where they were once more charged in June 2011, and arraigned in May 2012.

Since then, 53 pretrial proceedings have taken place in the 9/11 case at Guantánamo, as the defense teams have worked assiduously to expose evidence of their clients’ torture in CIA “black sites” for many years before their arrival at Guantánamo in September 2006, and to present expert testimony about why it was so damaging, and why “clean team” interrogations undertaken after the men’s arrival at Guantánamo remained tainted by their prior torture, while prosecutors have, essentially, tried to hide that information, or to downplay its significance.

As the Obama administration gave way to Donald Trump and then Joe Biden, and as judges came and went, as did those assigned the role of the Convening Authority, the endlessly deadlocked proceedings — a kind of “Groundhog Day” for justice, as I have frequently described it — finally hit a wall in October 2021.

The trigger was the testimony of Majid Khan, a hapless courier for Al-Qaeda, who had been remorseful about his involvement with the terrorist group, and who had willingly cooperated with the authorities, but had nevertheless, been tortured abominably.

When Khan was finally allowed to make a public statement about his ordeal, at the sentencing phase of a plea deal that he had agreed to ten years before, his testimony was so harrowing that seven of his eight military jury members submitted a handwritten note calling for clemency, berating the government for having subjected him to torture so severe that it resembled the “torture performed by the most abusive regimes in modern history.”

Recognizing the damage that the exposure of the US’s post-9/11 torture program caused, prosecutors seemed finally to realize that, even if they were able to eventually secure a successful prosecution in the 9/11 case, it might end up being overturned on appeal, as evidence of the unconscionable torture of KSM and his alleged accomplices surfaced.

The plea deals that were agreed on July 31 were, therefore, the only realistic way of bringing the 9/11 trial to any kind of viable conclusion. The full details of the plea deals were not made publicly available at the time, but prosecutors who spoke about them confirmed that the three men had “agreed to plead guilty to conspiracy and murder charges in exchange for a life sentence rather than a death penalty trial,” and it was evident to anyone paying close attention that the men’s confessions, as part of their plea deals, would be the only realistic way for any kind of closure to take place for the families of the victims of the 9/11 attacks.

Lloyd Austin rescinds the plea deals — and Judge McCall’s response

Nevertheless, on August 2, defense secretary Lloyd Austin issued a memorandum to Susan Escallier in which he stated that, “in light of” what he described as “the significance of the decision to enter into pre-trial agreements,” he had reached the conclusion that “responsibility for such a decision should rest with me as the superior convening authority under the Military Commissions Act of 2009,” adding, “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”, and also adding, “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.”

At the time, I explained how Austin’s intervention “does nothing but hurl the 9/11 case back into a legal abyss, as well as committing the government to continue haemorrhaging billions of dollars in prosecuting a case that is fundamentally unwinnable, however much its supporters pretend otherwise,” joining numerous other critics, some of whom suggested that his decision involved “undue command influence.”

On November 6, Judge McCall delivered his ruling about Lloyd Austin’s interference, eloquently explaining, in 29 pages, how fundamentally wrong and disturbing it was that the defense secretary believed that he had any right to withdraw the plea deals.

At the core of his ruling was an insistence that the Convening Authority was “the United States Government official empowered by the Secretary of Defense with authority to, among other things, enter into pre-trial agreements on behalf of the United States government,” as prosecutors had explained after the DoD had sent a letter to the 9/11 victims’ family members on July 31, announcing that plea deals had been reached.

Following extensive analysis of the structure of the military commissions and the role of the Convening Authority, as established in the Military Commissions Act of 2009, Judge McCall forensically dissected Lloyd Austin’s memorandum, after noting “the differing interpretations regarding what the SECDEF Memo actually accomplished,” with the defense team arguing that it “had no legal effect because the Secretary of Defense did not have the authority to do what he did,” and that therefore “the PTAs signed by the Convening Authority are still intact and enforceable as if the SECDEF Memo never occurred,” while the prosecution “takes the opposite approach, arguing the Secretary of Defense acted within his lawful powers,” which “resulted in the PTAs being properly rescinded.”

Judge McCall’s forensic dissection of Lloyd’s Austin’s legal errors in his memo

Analyzing the “three discrete actions” in Austin’s memo, in which he “purported to ‘withdraw’ Ms. Escallier’s authority as the Convening Authority in United States v. Mohammad et. al. to enter into PTAs,” also “purported to ‘reserve’ the authority to enter into PTAs to himself,” and “announced he was ‘withdraw[ing]’ from the three PTAs in ‘exercise of [his own] authority,’” Judge McCall found “legal, factual, and/or temporal defects with each.”

On the first point, Judge McCall essentially mocked Austin’s failure to distinguish the limits of his power regarding “withdrawing” or “withholding” Susan Escallier’s authority.

As he stated:

The Secretary of Defense purported to “withdraw” Ms. Escallier’s authority to enter into PTAs. He likely intended to “withhold” her authority do so. Each verb has a distinct legal meaning. Charges can be withdrawn. Authority can be withheld. Word choice matters because the Secretary of Defense’s actions must be tethered to a legal authority. The Prosecution did not cite, and the Commission did not find, any source of law authorizing the Secretary of Defense to “withdraw” Ms. Escallier’s authority to enter into a PTA. Though some rules permit a superior competent authority to “withhold” the right to take certain actions from a convening authority, the governing rules are devoid of any entitlement of a superior competent authority to “withdraw” a subordinate’s authority to act. Moreover, the use of the term “withdraw” authority instead of “withhold” authority may also be the Secretary’s recognition that his actions came after he had already delegated Ms. Escallier the authority to act and after she, in fact, acted in accordance with that authority.

After noting that “[n]one of the Parties dispute that Ms. Escallier had the authority to enter into the PTAs on 31 July 2024 when she did so,” based on the rules establishing the military commissions, Judge McCall then delivered a withering criticism of Austin’s memo, stating, “The timing of the SECDEF Memo is fatal to its enforceability,” and noting that, even if Austin “had the authority to withhold Ms. Escallier’s authority to enter into PTAs as a matter of law” (which he didn’t), this “new power would only be effective prospectively, not retroactively.”

As he added, crucially, “The fact that the Secretary of Defense gave himself exclusive authority to enter into PTAs on 2 August 2024, does not invalidate or somehow render the PTAs Ms. Escallier signed on 31 July 2024 void. The PTAs are enforceable contracts with the classic elements of offer, acceptance, and consideration.”

Adding that “consider[ing] the SECDEF Memo retroactively applicable” would be “to give the Secretary an absolute veto over any discretionary act of the Convening Authority with which he disagrees,” Judge McCall also pointed out that “the idea that each of the Convening Authority’s actions and decisions are immediately reversible if the Secretary of Defense disagrees potentially raises the specter of unlawful influence.”

After explaining how Austin, as the “superior competent authority,” was entitled to undertake certain actions, including the right to “remove Ms. Escallier and make himself the Convening Authority in this case,” Judge McCall emphasized that none of this could be applied retroactively. As he explained in a particularly damning passage, “What the Secretary of Defense could not do, however, was delegate authority to Ms. Escallier, recognize her independent discretion, then reverse that discretion upon disagreeing with how that discretion was utilized.”

On Austin’s purported right to “reserve authority” to himself, Judge McCall was equally blunt, dismissing the prosecutors’ efforts to suggest that the defense secretary can “reserve certain convening authority duties and/or responsibilities to himself” by noting that “the term ‘convening authority’ is used fifty-four times in the 2009 M.C.A., always referring to a singular entity and never multiple convening authorities,” which “indicates Congress’s intent that the convening authority of a particular military commission be a single individual,” and adding, “It is 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.”

In a passage that was particularly critical of Lloyd Austin’s seeming failure to understand the commissions as part of wider military justice, Judge McCall also stated:

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 M.C.A. is not sufficiently distinct from the Uniform Code of Military Justice to adopt such an expansive and unrestrained interpretation of the Secretary of Defense’s authority.”

Finally, dealing with Austin’s claim regarding his right to “withdraw” from the PTAs, Judge McCall not only reiterated his point that, even in his memo, Austin “did not reserve to himself the authority to withdraw from a PTA that had already been entered into by someone with authority to do so,” but also pointed out the significance that, according to a previous relevant case, United States v. Dean (2009), the Court of Appeals for the Armed Forces (CAAF) ruled that “the convening authority was not permitted to withdraw … when the accused began performance.”

Legally, “performance” means the enactment of crucial elements of the plea deals, which, in the case of KSM and his co-accused, was, as Judge McCall explained, already underway. “Performance began in a number of ways,” he stated, adding that perhaps the most crucial of these, in this particular case, was that “[a]ll three Accused signed lengthy confessional stipulations of fact, which could be used to establish their guilt and for the Panel Members to determine an appropriate sentence.”

In conclusion, granting the defense motions, Judge McCall stated that, “Pursuant to the terms of three valid and enforceable PTAs, the Commission will schedule a hearing for the entry of pleas for Mr. Mohammad, Mr. bin Attash, and Mr. Hawsawi at a date to be determined by the Commission.”

So what now?

On Wednesday this week (November 13), Judge McCall followed up on his ruling by scheduling hearings in early January for KSM and his co-accused to enter their guilty pleas, pushing ahead despite opposition from the Department of Defense, which, as the Associated Press explained, notified 9/11 victims’ families on November 8 that it “would keep fighting the plea deals,” and that officials “would challenge the agreements and McCall’s ruling before a US court of military commission review, and seek a delay in the three men entering their pleas for now.”

An official, who spoke anonymously to the AP, said that the government “had not yet filed papers asking the military commission review court to review” Judge McCall’s ruling, and also suggested that the White House was not involved in the decision to challenge the ruling, although that seems unlikely, given Biden’s openly-stated opposition to plea deals in 2023.

Ironically, even if an appeal proceeds, Khalid Shaykh Mohammad and Mustafa Al-Hawsawi have already taken steps to keep the death penalty permanently off the table. As the AP explained, “McCall’s ruling also confirmed that the government and Guantánamo’s top authority agreed to clauses in the plea deals for Mohammad and one other defendant that bar authorities from seeking possible death penalties again even if the plea deals were later discarded for some reason. The clauses appeared written in advance to try to address the kind of battle now taking place.”

Those of us concerned with justice after more than two decades of its opposite must hope that Lloyd Austin and his advisors recognize that appealing may well only bring them further humiliation, because, unlike the circumstances in which the “general population” of Guantánamo have been held — and still are, in the cases of 19 of the 30 men still held, who have never been charged with crimes — the military commissions are not a law-free zone, where all kinds of subterfuge can be indulged in to keep men held indefinitely without any fundamental rights whatsoever.

What struck me particularly about Judge McCall’s ruling is that it was grounded so definitively in the established mechanisms of US military justice, with precedents and rules that, ironically, cannot be waved aside as easily as the rules have been for prisoners regarded as fundamentally insignificant. For KSM and his alleged accomplices, this ought to be a bulwark against the kind of indefinite injustice that Lloyd Austin seeks. The plea deals bring an unresolvable legal quagmire to an end, and must be accepted. Infinite vengeance via a broken judicial system is fundamentally unjustifiable, as is the endless deferral of closure for those most deeply scarred by the 9/11 attacks.

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Andy Worthington is a freelance investigative journalist, activist, author, photographer (of an ongoing photo-journalism project, ‘The State of London’), film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (see the ongoing photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or you can watch it online here, via the production company Spectacle, for £2.50).

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and, in 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to try to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody.

Since 2019, Andy has become increasingly involved in environmental activism, recognizing that climate change poses an unprecedented threat to life on earth, and that the window for change — requiring a severe reduction in the emission of all greenhouse gases, and the dismantling of our suicidal global capitalist system — is rapidly shrinking, as tipping points are reached that are occurring much quicker than even pessimistic climate scientists expected. You can read his articles about the climate crisis here.

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