Last week, a federal appeals court in Washington, D.C., invalidated a plea agreement for Khalid Sheikh Mohammed, who has been incarcerated at the U.S. Naval Base at Guantanamo Bay, Cuba, for 20 years. Mohammed has been charged with conspiracy to commit mass murder in the United States on 9/11. Originally, the federal government blamed Osama bin Laden as the 9/11 mastermind. Then, after bin Laden was murdered in his home in Pakistan by the feds, they decided that Mohammed was the real mastermind. Bin Laden had never been charged with any crimes in the U.S.
After 20 years of litigation, the feds and Mohammed and his lawyers entered into a written plea agreement. The agreement, which was sought and drafted by the prosecutors, relieved them of the intractable burden of defending torture in a public courtroom and removed the death penalty from the menu of penalties available for imposition upon the defendant.
Judge Andrew Napolitano
Both sides presented the plea agreement to the military judge, who held hearings on its voluntariness, after which he accepted the plea agreement and all parties reasonably believed they had a guilty plea on their hands — a valid, freely negotiated, publicly accepted, lawful guilty plea.
Then, Lloyd Austin, who was the Secretary of Defense at the time, decided that the Biden administration did not want to answer for allowing the 9/11 mastermind to escape the federal death penalty. So, he ordered the same legal team that sought and negotiated and actually drafted the guilty plea to ask the trial judge to vacate it. Following standard criminal procedure, the court upheld the agreement as a binding, judicially approved contract between the United States government and Mohammed.
Then the feds appealed this denial to a military court of appeals, which also upheld the plea agreement. Thereupon the feds appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which, last week, on a 2 to 1 vote, rejected the plea, holding that the decision was Austin’s to make; and it didn’t matter if he said no well after the agreement had been entered.
Here is the backstory.
Due process has numerous definitions and aspects, but for constitutional purposes it basically means that all charged persons are presumed innocent and entitled to a written notice of the charges, a speedy and fair hearing before a neutral fact finder, a right to appeal; and the entire process imbued with fairness and a profound recognition of personal innocence until guilt is proven beyond a reasonable doubt. Due process also explicitly prohibits the use of torture.
In order to ensure that due process and habeas corpus — the right to compel the jailer to justify one’s confinement — would trump the whims of government officials, stated differently, to ensure that the British system of torture and confession and conviction did not occur here, James Madison and the Framers crafted protections in the Constitution to which all in government needed to swear allegiance and support.
Fast forward to Gitmo, and you can see the constitutional system turned on its head.
This George W. Bush-crafted American Devil’s Island, which costs $500 million a year to operate, once held 780 prisoners, allegedly there due to their personal involvement in the war on terror against the United States. Not a single one of them has been convicted of 9/11-related crimes, and only one former detainee is currently serving time in an American federal prison.
Nearly all the prisoners were tortured, and most were captured by roving militias and sold to American forces for bounties. Last year, the Biden administration laudably released 11 detainees, all of whom had been at Gitmo for 20-plus years and none of whom had even been charged with a crime.
The best known of the remaining 15 prisoners is Mohammed, who was scheduled for trial when the military judge in his case retired. The new judge — the fifth on the case — was confronted with the daunting task of reading 40,000 pages of transcripts and documents concerning the torture of Mohammed by U.S. personnel.
At the same time, a new team of military and civilian prosecutors was assigned to the case and the new prosecutors told their bosses in the Pentagon, chief among whom was Austin, and the new military judge that unlike their predecessors — who sought to mitigate the 183 torture sessions U.S. personnel administered to Mohammed — they were prepared to acknowledge it and decline to use any evidence obtained from it in the courtroom.
This remarkable turnaround — one that rejected the premises upon which Gitmo came into being — resulted in the prosecutors commencing plea negotiations.
The Bush-inspired premises of Gitmo were that since it is located in Cuba, federal laws don’t apply, the Constitution doesn’t apply and federal judges can’t interfere. In five landmark decisions, the Supreme Court rejected all these premises, and the new team of prosecutors and the new judge recognized as much.
The prosecutors basically said that they cannot ethically defend torture, they will not offer evidence derived from it in the case and the case is difficult to prove without evidence derived from torture.
This is a remarkable lesson to be learned. Instead of cutting holes in the Constitution, follow it. Instead of using torture, use acceptable investigative techniques. Instead of crafting a Devil’s Island, use the systems in place that have basically worked for hundreds of years.
None of this jurisprudential mess would have occurred if Bush had allowed the criminal justice structure to proceed unimpeded. The use of torture, rotating judges and prosecutors, and incarceration for a generation without charges or trial are all hallmarks of an authoritarian government.
If justice consists in convicting the guilty using established norms and fair procedures, Gitmo has been an unjust unhumanitarian disaster. But if justice consists in the government getting whatever he wants, then the Constitution is useless as a protector of freedom.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
