Sept. 11 plea deals are probably the best we can do under the law

OPINION:

The plea agreements for three Sept. 11 defendants, reached July 31 and tossed two days later by Defense Secretary Lloyd Austin, naturally drew considerable anger from many of the surviving family members of the 2,996 people who died as part of the attacks.

For justice to be done, all three of the defendants — Khalid Sheikh Mohammed, or KSM, Walid bin Attash and Mustafa al Hawsawi —should be executed. But in nearly 20 years of their cases being considered by the military tribunals at Guantanamo Bay, Cuba, these plea agreements are probably the best that anyone can do.

That is because the evidence against these terrorists and others is inadmissible because of a change in the law engineered by Sen. John McCain and other evidentiary concerns.

That evidence obtained through waterboarding is inadmissible at trial is a large part of the problem.

When KSM and other al Qaeda terrorists were waterboarded, it was legal under the U.S. law against torture, 18 U.S. Code Section 2340. The courts held that under that clear law, application of pain to a prisoner was not torture unless it caused lasting physical or psychological harm.

Because waterboarding had been used on hundreds of U.S. pilots at the Survival, Evasion, Resistance and Escape, or SERE, schools and because it caused no lasting harm to them, the Justice Department concluded that waterboarding was legal. That lasted until 2005, about three years after waterboarding was last used on terrorist prisoners.

Enter John McCain. Whatever you thought of him, he was a war hero. After his aircraft was shot down, he was imprisoned by the North Vietnamese from 1967 to 1973 in the infamous Hanoi Hilton with other captured Americans. He and they were subjected to beatings and other forms of torture.

About 20 years ago, I interviewed several of McCain’s former fellow inmates in the Hanoi Hilton. To a man, they told me that they believed they would not be alive but for his heroism.

One might have thought that McCain would want American law to be crystal clear on the subject of torture, and one would be wrong. In 2005, he sponsored and pushed through Congress a revision to the law on torture.

That amendment befogged the law on torture by adding: “No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman or degrading treatment or punishment.”

Instead of defining those vague terms, the McCain amendment punted, saying they should be defined in accordance with the Constitution and the U.S. reservations in ratifying the U.N. Convention Against Torture. As the post-McCain amendment law stands, waterboarding and other “enhanced interrogation techniques” are illegal.

Illogically, even if waterboarding were legal when it was done, evidence obtained by it is inadmissible in a military tribunal (or a federal court) under the rules of evidence. Much of the evidence against KSM and his ilk, including confessions, was probably obtained by waterboarding, so their conviction of a capital crime is almost certainly not in the cards.

The other problem is that other evidence against KSM and the others is likely derived from intelligence information. Unless there are audio recordings of their voices or emails or texts they sent or received, most or all of the intelligence information would be ruled out as hearsay. We don’t know how much direct evidence of the three’s involvement in the Sept. 11 attacks exists, but it is likely not enough to convict them of capital murder.

The plea agreements — of which we know little other than they ruled out the death penalty for the three — remain under seal in the military tribunal. Perhaps the defendants agreed to life in prison without parole. Perhaps the agreements call for moving the terrorists to U.S. jails, which would be a terrible mistake but consistent with President Biden’s and Vice President Kamala Harris’ desire to close Gitmo.

Meanwhile, Mr. Austin’s action in rejecting the plea agreements will be challenged by the defense lawyers as illegal command influence over the proceedings.

Command influence is defined in Article 37 of the Uniform Code of Military Justice (10 US Code Section 837). It provides that no commanding officer or convening authority can censure, reprimand or admonish any member of a court-martial proceeding or interfere in the exercise of any proceeding. Mr. Austin, as secretary of defense, is the highest “convening authority” in the military justice system.

The defense lawyers’ argument attacking Mr. Austin’s revocation of the plea agreements is not entirely clear, but it may suffice to cancel Mr. Austin’s action. So far, the military judge on the cases has not ruled and has told the parties to, in so many words, calm down.

KSM was arrested in March 2003 and taken to one or more secret locations where he was waterboarded to extract information on everything from Osama bin Laden’s hideout to his and others’ involvement in the Sept. 11 attacks.

It would be tragic for him and the others to escape capital punishment.

Nevertheless, the plea agreements are probably the best we can do under the law.

• Jed Babbin is a national security and foreign affairs columnist for The Washington Times and contributing editor for The American Spectator.