The terrorists contend that the agreements were binding contracts, and the military judge authorized an investigation of the defense secretary’s actions.
The three terrorists who signed plea agreements that were countersigned by the Defense Department official who was authorized to approve such agreements now claim that Defense Secretary Lloyd Austin was powerless to rescind the agreements.
The three jihadists — Khalid Sheikh Mohamed, the mastermind of the 9/11 suicide hijackings that killed nearly 3,000 Americans, and two of his accomplices, Mustafa al-Hawsawi and Walid bin Attash — contend that the plea agreements became binding contracts once they were signed last Wednesday, July 31, by retired General Susan K. Escallier, who had been appointed by Austin to oversee the military commissions.
I’ve detailed in a series of recent posts (see, e.g., here and here) how the public announcement of the plea agreements by the Defense Department spurred acrimony from senior congressional Republicans and some members of the 9/11 families.
They railed about the national-security derelictions of President Joe Biden and Vice President Kamala Harris, who is now the Democrats’ de facto presidential nominee in the election that will occur in less than three months. Obviously seeking to minimize the political damage, Austin announced on Friday evening (August 2) that he was rescinding his subordinate’s approval of the plea deal and relieving her of the authority to approve pleas in the case — a power he said he would now exercise himself.
As the New York Times reports, lawyers for the terrorists maintain that they have a binding agreement signed by the government; they further claim that, in reneging on the deal, Austin has exercised improper command influence.
The judge in the commission prosecution, Colonel Matthew N. McCall, has thus far declined to rule that the government has breached a lawful contract. Nevertheless, he has authorized defense counsel to investigate the matter. Colonel McCall also ordered the military prosecutors to provide defense lawyers with information about the circumstances surrounding Austin’s decision to rescind. “Everybody must follow the rules,” said the judge, “including the Secretary of Defense.”
This could be a political can of worms for the White House and Harris’s presidential campaign. The party line thus far has been that Austin acted unilaterally — out of his strong feelings about the 9/11 atrocities, not politics. While I don’t doubt the secretary’s strong feelings — almost all of us who lived through the event have them — his story, as I explained in today’s post, is not very convincing.
It was no secret in top administration circles that a plea agreement was being negotiated. It beggars belief that General Escallier would have signed the agreement unless she understood that Austin — who handpicked her for the job — was on board, or that the Pentagon would issue a press release about such a crucial matter that was certain to stoke major press attention — especially during the presidential campaign — unbeknownst to the defense secretary and the White House. Indeed, with the public curious about Biden’s condition and whether he is actually functioning as president, it has been incumbent on Austin and other top administration officials to project a stable government — particularly a smoothly functioning national-defense chain of command.
On the merits, the Defense Department will surely argue that (a) since Austin could always have exercised the powers of commission oversight himself and was not required to delegate a subordinate to wield them, the improper-command-influence claims are overblown; and (b) even if the plea agreement was a valid contract — in the sense that it was signed by an authorized government official, and the defendants provided consideration by waiving their trial rights — a plea agreement is a special kind of contract that should not be deemed binding unless and until the defendant pleads guilty pursuant to its terms.
We’ll see how far the government gets with that — it was a fully executed plea deal, there are grounds to believe Escallier was relieved for political reasons, and the improper-command-influence inquiry also implicates the question of whether Austin himself was pressured by the commander in chief to renege on the deal.
It should go without saying that this is a problem the prosecutors do not need. They are currently fighting to preserve evidence that terrorists are trying to get suppressed based on abusive interrogation tactics and confinement conditions. Even if the prosecution succeeds in preserving enough of its proof to have a winnable case on the issue of guilt, the prisoner abuse will be front-and-center in the sentencing phase — at which death sentences could not be approved unless the commission panel votes unanimously for them. Commissions have been sympathetic to abuse claims in other cases — although, to be sure, this case involves a different dimension of heinousness.
Now, the terrorists will also be poised to argue that the government double-crossed them in plea negotiations due to political pressure. A panel of military officers will not like that, either, especially if the officers conclude that Escallier is being hung out to dry by her superiors.
Clearly, the defense strategy here is to induce the government to rescind Austin’s rescission. The message is: Honor the plea agreement, or this will get even uglier politically.
It’s a mess. It’s hard for me to believe that Austin would reinstitute the plea agreement at this point — although, of course, we don’t know what if any embarrassing information the defense lawyers’ investigation of the rescission may turn up.
If I were a prosecutor on the case, I’d see one silver lining: The defense is pushing very hard for an agreement in which they’d have to plead guilty to 2,976 murders to be assured of no capital punishment. This suggests the jihadists believe that, despite the “torture” evidence, the chance that they would be convicted and executed if the case goes to trial is not negligible.