Top administration officials were more aware than they are letting on in what was an effort to end the 9/11 saga and close Gitmo.
With the usual leaks to the New York Times, senior White House and Defense Department officials would have us believe they had nothing to do with the plea deal the Biden-Harris administration first signed with Khalid Sheikh Mohammed and two of his 9/11 accomplices and then retracted after an explosion of protest from congressional Republican leaders and some 9/11 family members.
The party line is a veiled suggestion that Susan K. Escallier went rogue. She is the retired brigadier general handpicked by Biden’s Defense Secretary, Lloyd Austin, to oversee military commissions. Escallier, it is intimated, unilaterally agreed to withdraw the death penalty from the case in exchange for guilty pleas by the three jihadists to the murders of 2,976 people in the 2001 suicide-hijacking attacks that destroyed the World Trade Center, struck the Pentagon, and resulted in the downing of United Flight 93 in Shanksville, Pa., after passengers heroically wrested control of it from a crew of four terrorists (who are believed to have been targeting the Capitol or the White House).
Austin, supposedly blindsided and alarmed by the condemnatory reaction, rescinded the plea deal 48 hours later — on a Friday evening, with no input from the Biden White House and no partisan concerns about potential damage to Vice President Kamala Harris’s presidential campaign.
Right.
As I recounted in yesterday’s post, the Biden-Harris administration’s plea negotiations with the 9/11 jihadists have been going on for over two years. In terms of timing and substance, they are of a piece with the administration’s disastrous withdrawal from Afghanistan. That is, the president wants to close the book on the “war on terror” — an unattained Obama-Biden administration objective that includes shuttering the detention center at the Guantanamo Bay naval base, which Democrats and their radical base slandered as “Bush’s gulag.”
It is inconceivable that something as significant as the 9/11 case — fraught with history of often vitriolic debate over whether captured terrorists should be treated as wartime enemy combatants or civilian criminal defendants — could be disposed of without top administration officials being in the loop. Indeed, the plea negotiations were opened in 2022 only after the chief military defense lawyer, General Jackie Thompson, wrote to President Biden — setting in motion communications between a White House National Security Council lawyer and the Defense Department’s general counsel, after which the chief prosecutor on the 9/11 case alerted defense lawyers that he was open to plea discussions.
Reading between the lines of the above-linked Times report (published Sunday), it is obvious that top officials knew a plea deal, offered by the government and accepted by the terrorists, was on the table. An unidentified Defense Department official told the paper that, during a long flight home from Asia last Wednesday, Secretary Austin was surprised to learn that General Escallier had signed the plea agreements. But the report adds, “Defense officials were aware that [KSM] and the other two men [Mustafa al-Hawsawi and Walid bin Attash] had signed the agreements; they did not anticipate that Ms. Escallier would sign them so soon.” (Emphasis added.)
Translation: Top officials knew there was a plea agreement crafted by the Defense Department and that the three jihadists had signed it; they also knew Escallier was going to sign it on behalf of the government — it was just the timing of her signing that they were supposedly unaware of.
Even that last bit doesn’t pass the straight-face test. The Times report elaborates that prosecutors and other Pentagon officials had already fanned out to alert hundreds of 9/11 family members, explaining that the decision to withdraw the death penalty had not been reached “lightly,” and asking that the decision be kept confidential for now. Grief counselors were on call. A Department of Defense press release was issued. Plans were underway to have KSM plead guilty first, as early as next week.
This was not a hasty initiative; it was an orchestrated rollout that had been given a good deal of thought.
The stridency of the political blowback, however, had not been anticipated. Consequently, Austin reneged on the plea deal after 48 hours. Clearly, the secretary is now being distanced from the flip-flop because he is the link in the chain leading to the president (even though national-security adviser Jake Sullivan acknowledged that the White House has been kept abreast of developments in the case by DoD lawyers and officials). The Times thus adds that, as of Friday when he rescinded it, “Austin still had not seen the plea deal because it was under seal at the Guantánamo court, according to a senior defense official.” Well of course he hasn’t seen “the plea deal” — i.e., the physical document signed by the jihadists, their lawyers, and the commission authority, then sealed by the court at Gitmo. That hardly means he hasn’t seen a copy of the plea deal, or at least been thoroughly briefed on its terms.
I have to assume Biden and Harris did not want this controversy now, just three months before the election. Their problem is that the administration is not completely in control of the schedule. Defense lawyers have been pushing to have charges and evidence thrown out over allegations of forcible and degrading interrogation tactics by the CIA. Pretrial hearings were underway. In the absence of a plea agreement, that litigation would — and now will — go forward, and the military court’s rulings are likely to deeply damage the prosecution. Indeed, the Times notes that the military judge on the case, Colonel Matthew N. McCall, “had been edging closer to making decisions about whether crucial evidence was tainted by torture,” and was “eager” to review the plea agreements “with alacrity.” Understandably so: The agreements would relieve him of the need to make such rulings.
Unfavorable rulings (which I believe are likely) could drastically decrease the chances of getting convictions if the case is tried; in any subsequent penalty phase, the misconduct that resulted in such rulings would likely dissuade the jury (the panel of officers that comprises a military commission) from imposing the death penalty — a verdict that requires unanimity.
Politically speaking, then, the plea deal, which was sure to be unpopular, was inconveniently timed; but bad rulings that torpedo the prosecution would be worse, whenever they occur.
That said, ever since Democrats cold-bloodedly supplanted Biden with Harris, there is no longer much effort being made to deceive the country into believing he is functioning as president — Biden is barely seen and has next to no activities. Presumably, he whiles away the hours tending to his legacy, such as it is. No longer running for president, embittered, and less concerned about hurting Harris’s campaign than he would have been about undermining his own, the president’s incentive is to check off his to-do list in the short time he has left in power. That list has always included putting 9/11 in the rearview mirror and closing Gitmo.
Funny thing about Gitmo: For all the Left’s castigation of it, the detention camp is a model of humane confinement. Consequently, in plea negotiations, the jihadists have been demanding to continue being detained there as a condition of entering guilty pleas. So while the push to resolve the case is undoubtedly fueled in part by Biden’s legacy project, we won’t know whether the government agreed to maintain KSM and his confederates at Gitmo unless Congress manages to pry the agreements from the administration. (Don’t hold your breath.)
Now, with the plea deal retracted and the case continuing to plod along for another year or five, it seems unlikely that Gitmo will be closed during Biden’s presidency.