OPINION:
When can an Army colonel overrule the secretary of defense? It happened last week for probably the first time in modern history.
The short answer: Even in the military, the secretary of defense cannot change the rules and procedures for criminal prosecutions and tell military judges how to try cases.
Here is the backstory.
For years, the feds told us that Osama bin Laden was the 9/11 mastermind. Then, after they killed bin Laden in 2011 in Pakistan, they decided that Khalid Sheikh Mohammed was the real mastermind, and they would try him in a military court and seek the death penalty. He set in motion calculated events that resulted in the killing of nearly 3,000 Americans.
Fast-forward to a few weeks ago, when we learned that a plea agreement had been reached through a signed contract between the retired general in the Pentagon who is supervising all Guantanamo Bay prosecutions, the Guantanamo defendants and defense counsel and the Gitmo military prosecutors.
The agreement provides that in return for a guilty plea, Mohammed and others will serve life terms at Gitmo rather than be exposed at trial to a possible death sentence or serve their sentences at America’s hellhole in Florence, Colorado. The guilty plea is to include detailed public recitations of guilt.
So far, this is straightforward. While the trial judge may have given the nod to the terms of the agreement, under the federal rules of criminal procedure, the agreement is not final until the judge hears the defendants admit guilt under oath in a public courtroom and then accepts the plea in a written order.
That admission has not yet occurred because Secretary of Defense Lloyd Austin, who learned of the plea agreement while traveling, removed the authority of Gen. Susan Escallier, who is supervising the prosecution, to make plea agreements without his express approval.
Thereupon, defense counsel asked the judge in the case, Col. Matthew McCall, to enforce the agreement anyway since it is a signed contract and schedule the plea hearing at which Mohammed and others will presumably comply with their obligation to spill the beans regarding the 23-year-old case.
The military prosecutors — who initiated the plea negotiations two years ago because they recognized that they could not ethically defend the torture regime of President George W. Bush — complied with Pentagon orders and asked Judge McCall to reject the plea.
Last week, the judge denied the government’s request and rejected the Pentagon’s order and scheduled hearings at which Mohammed and the other defendants will presumably acknowledge their guilt under oath.
The judge’s ruling is essentially unassailable. He ruled that when Mr. Austin rescinded the authority of Gen. Escallier — a retired military judge — to agree to guilty pleas, it was too little, too late. By the time Mr. Austin removed Gen. Escallier’s authority to approve guilty pleas in all Gitmo cases, she had already approved these pleas. Thus, she was fully possessed with the power to approve them at the time she signed the approvals.
The prosecution now confronts an ethical dilemma.
The plea negotiations were begun by the prosecutors. The current team of prosecutors is the second prosecutorial team.
Full disclosure: I consulted with the first team of prosecutors on some of their civil liberties issues. The current team, after reviewing the work of its predecessors, concluded that the case was not winnable and posed a great risk to American jurisprudence and to our troops stationed abroad.
The risk to jurisprudence is the nearly impossible task of defending torture. Lawyers are prohibited from using evidence obtained under torture to prove a case, and judges are prohibited from permitting such evidence to be considered by juries. This is a basic principle of law that Mr. Bush forgot about, ignored or never knew when he authorized torture back in 2001. Mohammed was tortured for three years at black sites in foreign countries and at Gitmo.
Judge McCall has not yet ruled on what evidence will come before the jury — should there ever be a trial — as he is the fourth judge in the case. To make his rulings, Judge McCall will need to review more than 40,000 pages of documents and transcripts produced to his predecessors. Mr. Bush also forgot, ignored or never knew that military judges — unlike federal district court judges — rotate off their assignments every four or five years.
Had Mr. Bush not crafted the jurisprudential nightmare in Gitmo — with its torture regime and agonizingly slow military rubrics — Mohammed and the others would have been tried in federal court in New York by now and would have been acquitted and set free or convicted and executed or still serving life terms.
Instead we have the anomaly of prosecutors asking a military appeals court — once headed by the same Gen. Escallier — to reject a guilty plea that the same prosecutors sought and crafted so that they can now try a case that they have told their superiors and publicly revealed will be impossible to win and dangerous to try.
Why would it be dangerous to try Mohammed? Because if the world learned from a public courtroom what the U.S. government did to him — all of it criminal, unconstitutional and constituting war crimes for the prosecution of which there is no statute of limitations and which are not pardonable — it would be startled. Angry people would likely seek revenge on U.S. troops abroad.
All Americans should care about this. The feds are subject to the Constitution and the rule of law. They cannot evade or avoid either for unpopular defendants or for political gain. If they could, then no one’s freedom is secure.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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