The Forever Charade
On January 10th, one day before the 23rd anniversary of its opening, a much-anticipated hearing was set to take place at the Guantánamo Bay Detention Facility on the island of Cuba. After nearly 17 years of pretrial litigation, the prosecution of Khalid Sheikh Mohammed (KSM), the “mastermind” of the devastating attacks of September 11, 2001, seemed poised to achieve its ever-elusive goal of bringing his case to a conclusion. After three years of negotiations, the Pentagon had finally arranged a plea deal in the most significant case at Guantánamo. Along with two others accused of conspiring in the attacks of 9/11, KSM had agreed to plead guilty in exchange for the government replacing the death penalty with a life sentence.
After more than 50 pre-trial hearings and other related proceedings, Americans — and the victims’ families — would finally see closure for those three individuals who stood at the center of this country’s attempt to reckon legally with the 9/11 attacks.
Because of the fact that the defendants had been tortured at notorious CIA “black sites” before arriving at Guantánamo, the case had long been endlessly stalled. After all, so much of the evidence against them came from torture confessions. As it happens, such evidence is not admissible in court under U.S. or international law, or even under the rules of Guantánamo’s military commissions. For obvious reasons, it’s considered tainted information, “the fruit of the poisonous tree,” and so inadmissible in court. Although military commission prosecutors tried repeatedly over the years to find ways to introduce that all too tainted evidence at trial, attempts to do so failed time and again, repeatedly pushing potential trial dates years into the future. As a recently compiled Center on National Security chart shows, the forever delays in those hearings led to calendars of such length as to defy comprehension. In Khalid Sheikh Mohammed’s case, for example, such delays have so far amounted to 870.7 weeks.
With the plea deal now set to come before Judge Matthew McCall, who had agreed to delay his retirement in an effort to see this case to its conclusion, attorneys, journalists, and victims’ family members boarded planes, preparing to witness the longed-for conclusion to a case that had seemed endless. Perhaps you won’t be surprised to learn, however, that the hearing never took place. Delay was again the name of the game. As it turned out, from the moment the plea deal was announced, it became the centerpiece of an intense battle launched by then-Secretary of Defense Lloyd Austin.
What Happened
Two days after the August 2024 announcement of the plea deal by the “convening authority,” Brigadier General (Ret.) Susan Escallier, the Pentagon official in charge of the military commissions at Guantánamo Bay, Austin summarily overruled her, revoking the plea deal with little explanation and leaving experts and observers alike confused and disappointed. Had the secretary of defense not been consulted on the plea arrangement? That seemed unlikely. Had political pressure caused him to take such a drastic act? If so, then perhaps after the election he would change his mind and restore it. No such luck.
Whatever Austin’s motivation, Judge McCall refused to take “no” for an answer, declaring his revocation invalid.
McCall made it clear, instead, that he was moving forward. As the judge explained, in the memo that Austin had long ago issued appointing Escallier, he had attested to her independent authority. “Ms. Escallier shall exercise her independent legal discretion with regard to judicial acts and other duties of the Convening Authority.” But even as McCall prepared to go forward, Austin appealed to the Court of Military Commissions Review, asking it to rule that he did indeed have the authority to revoke the plea deal. However, that court then ruled that the secretary had improperly rescinded the deal after it had taken effect.
Still, he refused to give up, seeking help elsewhere. And he found it. On the eve of the scheduled hearing, the Department of Justice filed papers asking the D.C. Circuit Court to prohibit the Gitmo court from moving ahead and to stay proceedings while it contemplated the
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LewRockwell.com is a libertarian website that publishes articles, essays, and blog posts advocating for minimal government, free markets, and individual liberty. The site was founded by Lew Rockwell, an American libertarian political commentator, activist, and former congressional staffer. The website often features content that is critical of mainstream politics, state intervention, and foreign policy, among other topics. It is a platform frequently used to disseminate Austrian economics, a school of economic thought that is popular among some libertarians.
