The D.C. Circuit will decide if Secretary Austin gave ex ante guidance on the plea and if performance of the deal had already begun.
On Jan. 28, the U.S. Court of Appeals for the D.C. Circuit will hear oral argument on the merits of Biden Defense Secretary Lloyd Austin’s effort to block the plea agreement reached with the government by alleged 9/11 mastermind Khalid Shaikh Mohammad and two other defendants accused of participation in the attacks. (See Natalie Orpett’s article here.) The agreement withdraws the capital charges against the defendants, who for their part agree to a sentence of life imprisonment and an extended sentencing hearing in which the defendants acknowledge their role in the attacks and take questions from the victims’ families. After military commission judge Matthew McCall and the Pentagon’s Court of Military Commission Review (CMCR) ruled that the agreement bound the government, the government sought and received an administrative stay from the D.C. Circuit, which has now ordered full briefing on the merits. The court will need to determine whether Secretary Austin, before trying to walk away from the deal, provided specific guidance on the plea that satisfied the Appointments Clause. In addition, the hearing will ascertain if pleading defendants acted to their detriment on promises they made in the plea agreement. The evidence strongly suggests that the answer to both of these questions is affirmative, rendering the agreement binding.
Backdrop and Aftermath of the Plea Agreement
The current plea agreement emerged from negotiations between the defendants, the prosecution, and a Defense Department official known as the “convening authority” appointed by Secretary Austin in August 2023. Without a plea agreement in the 9/11 case that withdraws the capital charges against the defendants, the defendants had indicated that they would move to dismiss the capital charges as justice for the torture that they experienced and litigate the admissibility of post-torture statements to the FBI (see Aaron Shepard’s article). Military Judge McCall stated on Jan. 24 that he would rule on the statements’ admissibility within a month. A decision either way would adversely affect the government: Finding the statements to be admissible would, if conviction of the defendants followed, prompt years of appeals. Suppressing the statements would harm the government’s case at trial. While the benefits to both the government and the defendants of a pretrial agreement have long been obvious, the need to withdraw the referral of charges related to the death penalty has been a complicating factor. Some relatives of the attacks’ victims have favored a plea deal for a sense of closure in this protracted and painful litigation. But other family members have demanded that the government pursue the death penalty. Legislators such as Sen. Ted Cruz (R-Texas) have become involved, stoking social media to demand that the government pursue the capital charges. For example, the New York Times reported that Sen. Tom Cotton (R-Ark.) called the plea deal “disgraceful and an insult to the victims of the attacks.”
The public controversy about a plea deal is part of the backdrop for the August 2023 appointment by Secretary Austin of Brig. Gen. Susan Escallier, a retired judge advocate general, as convening authority. In his letter designating Escallier as the convening authority, Austin noted that Escallier could “exercise her independent legal discretion with regard to judicial acts and other duties.” However, that broad language obfuscates his own central role in key terms of the evolving plea agreement.
Government documents just released in the D.C. Circuit case’s joint appendix in the plea case depict Austin’s role. A government military prosecutor, Clayton Trivett, explained in a July 2023 memo that a deal to withdraw capital charges had to include the following concessions from the defendants: “stipulations … [that] accurately reflect the full criminality of the conduct of the accused and accurately reflect how that conduct fit within the 9/11 conspiracy”; an extended court proceeding to that effect; and an agreement by the defendants to discontinue their longtime effort to suppress incriminating statements of the defendants in FBI interviews after their torture.
The joint appendix included other evidence of Austin’s ex ante guidance. In a related memo from September 2023—a memo sent after Escallier’s appointment but before she actually took office—Trivett related that the deal would not include provisions on “conditions of confinement” that the defendants had long sought. Defendants had asked the government to facilitate regular communication between the defendants and their families outside of Guantanamo’s restrictive policies. They had also raised other issues about conditions at Guantanamo. As it turned out, according to a spokesperson for Austin who talked on the record with reporters in August 2024, the secretary had specifically considered the defendants’ request in 2023 and had rejected it. (This public statement by the Pentagon dovetails with reporting from the New York Times’s Guantanamo reporter, Carol Rosenberg.)
According to Trivett’s September 2023 memo, the defendants’ wish list for conditions of confinement could be “recommendations” outside the deal but were not “likely [to] meet with success.” Trivett conveyed his bottom line to the defendants’ counsel: “Either your clients want the deal we have negotiated without the conditions of confinement or they don’t.” The plea deal that the convening authority announced on July 31, 2024, reflected the defendants’ decision that they “want[ed] this deal”—the final agreement makes no mention of conditions of confinement.
When she assumed office in October 2023, Escallier presided over negotiations that precisely tracked the guidelines that prosecutor Trivett had laid out in July and September of that year. In the deal that the parties signed on July 31, 2024, the prosecution and defendants agreed that the prosecution would withdraw the prior referral of capital charges, while the defendants agreed to plead guilty in exchange for a sentence of life imprisonment. The defendants also agreed to acknowledge their guilt and participate in a lengthy uncontested hearing that would include comprehensive evidence of the defendants’ role in the 9/11 attacks. Victims’ families would make statements as part of this extended proceeding, which would entail months of testimony. The defendants also agreed to take questions from victims’ families.
As part of the pretrial agreement, the defendants submitted signed stipulations of fact regarding their role. Based on the joint recommendation of prosecution and defense counsel, the defendants also agreed that in a related hearing for a defendant, Ammar al-Baluchi—who was not involved in the agreement—the pleading defendants would not cross-examine FBI agents who had interrogated them in 2007 and 2008 after the government ceased its torture. That decision not to question the government’s witnesses necessarily caused tension between the cooperating and noncooperating defendants.
As Judge McCall found, it is “likely”—given the realities on the ground at the time of Escallier’s appointment—that the secretary was aware of the 9/11 negotiations’ course at that time. Nevertheless, in a high-profile case like 9/11 that elicited strong congressional and social media interest, the plea deal’s rational compromise took on a different cast. After initiating the process that led to the agreement and providing implicit guidance on its contours, Austin decided on Aug. 2, 2024, that he would renounce the agreement. He withdrew Escallier’s authority to forge an agreement, reserving that authority for himself. In November, McCall held that the pretrial agreement was nonetheless enforceable. In late December, the Court of Military Commission Review affirmed McCall’s decision, holding that performance of the agreement had already begun, creating a binding agreement. According to the CMCR, while the secretary could have withdrawn this authority prior to partial performance of the agreement, the start of performance precluded this option.
The government then filed a mandamus petition with the D.C. Circuit asking for a stay and a hearing on the merits. The D.C. Circuit granted an administrative stay on Jan. 9 and ordered completion of merits briefing by the end of the month, with an oral argument to follow.
Enter the Appointments Clause
The D.C. Circuit must decide whether Secretary Austin’s ex ante guidance on the plea is sufficient to satisfy the Constitution’s Appointments Clause, which requires supervision of subordinates wielding significant power. (Certainly, there are a range of other issues the court will need to consider, but they are beyond the scope of this article.) As I’ve discussed in a forthcoming article, the Appointments Clause, found in Article II, provides legitimacy, accountability, and a measure of flexibility in the designation of officials who exercise substantial power. The highest rung of such officials concerns secretaries of cabinet departments such as the Department of Defense, who along with ambassadors are considered “principal officers.” The president nominates principal officers, subject to the advice and consent of the Senate. The requirement of Senate confirmation adds to the legitimacy of principal officers by providing legislative buy-in. Senate confirmation reduces—although it does not eliminate—the risk that principal officers will be mere cronies of the president whom the president has installed for the sake of convenience or expedience. (Later in this article I discuss another requirement that the plea agreement must meet to be binding: The defendants must have acted to their detriment on the promises they made in the agreement.)
The secretary of defense is a principal officer under this definition. The secretary takes direction from the president, who of course serves as commander in chief. As the key assistant to the president on matters pertaining to the military, the secretary has broad power. For example, with respect to military commissions, the secretary under 10 U.S.C. § 949a(a) sets “pretrial, trial, and post-trial procedures.”
In addition, as the D.C. Circuit observed in a 2020 and 2023 decision in Al Bahlul v. United States, the secretary makes rules of evidence for military commissions. Under Rule 601(f) of the Rules of Military Commissions (RMC), the secretary can designate himself as “superior convening authorit[y].” In the course of doing that, “[e]xcept as otherwise provided in these rules,” the secretary “may cause charges … to be transmitted” to him “for further consideration” even when a subordinate convening authority has initial responsibility for filing charges against a particular defendant. Understanding the secretary’s power over military commissions and the limits on that power requires understanding the convening authority’s power and role.
The Convening Authority’s Appointment and Role as an Inferior Officer
Under 10 U.S.C. § 948h of the Military Commissions Act, the secretary of defense appoints the convening authority, as Secretary Austin appointed Gen.l Escallier. That designation of a convening authority complies with the Appointments Clause if and only if the secretary’s ongoing supervision of the convening authority fits the definition that the Supreme Court has crafted of an “inferior officer.” The concept of an inferior officer springs from the text and logic of the Appointments Clause itself.
The framers appreciated the inefficiency that would result if the gold standard of presidential nomination and Senate confirmation applied to all officials of the executive branch. To ease these burdens, the Appointments Clause authorizes Congress to create positions for “inferior Officers” that a range of actors—the president, the courts, or the “Heads of Departments” such as cabinet secretaries—can name without Senate advice and consent. As the Supreme Court explained in United States v. Arthrex, Inc., officers appointed without Senate confirmation can endanger accountability when they exercise substantial power—what the Court has called “significant authority.” To reduce this risk, courts have required that principal officers exercise a “high degree of control” over inferior officers. That level of control ensures that the principal officer cannot dodge accountability for the inferior officer’s actions. Following this logic, an officer is not truly “inferior” if the officer makes “final” decisions, exercises discretion outside of any rules that principal officers have set, and acts without oversight from principal officials.
The Supreme Court has stressed the need for oversight of inferior officers by a principal officer. For example, the Supreme Court in Edmond v. United States found that a Coast Guard judge was an inferior officer. Supporting this conclusion, the Court noted that the Coast Guard judge operated under rules set by a principal officer, was removable at will by that principal officer, and issued decisions that another administrative body could review.
Building on Edmond, in Arthrex, the Court—in an opinion by Chief Justice John Roberts—held that the means for appointing administrative patent judges (APJs) within the Department of Commerce violated the Appointments Clause. The secretary of commerce appoints APJs. To comply with the Appointments Clause, the secretary of commerce had to “supervise and direct” the APJs. At the time the Court decided Arthrex, the APJs made decisions on whether certain current patents met the criteria for patentability, including originality. In this realm, APJs made decisions that only courts—not other officials in the Commerce Department—could review. As a result, the Supreme Court held, no principal officer provided the supervision and direction of APJs that the Appointments Clause requires. Arthrex highlighted the importance of the guidance that the principal officer provides to the inferior officer. As we shall see, Secretary Austin’s guidance in the 9/11 plea case satisfies both Edmond and Arthrex.
The convening authority is an official peculiar to military commissions and the U.S. military justice system. As Jacob Meusch explains in a comprehensive study, the convening authority has had a shifting role under the Uniform Code of Military Justice (UCMJ), which provides for courts-martial and other forms of discipline of U.S. service members. While the convening authority started out as part of the military’s chain of command, more recently, the convening authority in UCMJ proceedings has taken on a more judicial cast. Indeed, the Supreme Court in Ortiz v. United States held by a 6-3 margin that military justice was judicial, not executive, in character. (SeeSteve Vladeck’s piece.) However, as the president’s chief assistant on conduct of the military, the secretary of defense has the power to provide advance guidance in a particular case to a convening authority. Moreover, before a convening authority has reached an agreement on charges in a particular case, the secretary has the power to replace that convening authority with a superior convening authority, including the secretary acting on his own.
The Convening Authority in Military Commissions
In military commissions, the convening authority has power over charges that largely tracks the power that the convening authority possesses in UCMJ cases. (On the history of military commissions, seemy analysis; for a more critical look at a particularly troubling episode—the trial of conspirators in the Lincoln assassination—seeMarty Lederman’s account.) For example, under the Regulation for Trial by Military Commission (RTMC) Chap. 12-1, “Unless such authority is withheld by a superior competent authority, the [convening authority] is authorized to enter into or reject offers to enter into Pretrial Agreements (PTAs) with the accused.” Similarly, the Rules of Military Commissions state that, “Subject to such limitations as the Secretary may prescribe, an accused and the convening authority may enter into a pretrial agreement in accordance with this rule.” Reflecting the convening authority’s power, once an agreement exists, it is binding.
The binding nature of a plea agreement undergirds the whole process of negotiation in both UCMJ and military commission proceedings. RMC 705(d)(3) states that acceptance of a plea lies within the “sole discretion” of the convening authority. Expanding on this point, RMC 705(d)(4)(B) states that the “convening authority may withdraw from a pretrial agreement at any time before the accused begins performance of promises contained in the agreement,” but—as it pertains to the 9/11 case—only in one narrow circumstance: “upon the failure of the accused to fulfill any material promise or condition in the agreement.” This provision preserves the reciprocity necessary to any negotiation. The convening authority must treat the agreement as binding, if the defendant treats the agreement the same way.
Applying the Appointments Clause to the Military Commissions’ Convening Authority
To comply with the Appointments Clause’s requirement of supervision and direction by a principal officer, a plea agreement that the convening authority negotiates must meet one of two conditions, based on the relevant authorities: The secretary of defense must either (1) approve or ratify the agreement ex post (i.e., after its negotiation) or (2) provide ex ante (before the fact) guidance to the convening authority that is reasonably specific and concrete. The first condition is straightforward and covers the vast majority of cases in both military commissions and ordinary UCMJ proceedings; the secretary’s imprimatur establishes the accountability that the Appointments Clause requires. The second condition, which applies to the 9/11 plea, requires more careful consideration.
The D.C. Circuit, rejecting an Appointments Clause challenge to the convening authority brought by another military commission defendant, Ali Hamza al Bahlul, found that the secretary exerted a “high degree of oversight and control” over the convening authority. (See Bob Loeb’s analysis of the 2023 oral argument in the D.C. Circuit.) In al Bahlul, the D.C. Circuit addressed a variant of category 1 above. The secretary had approved the charges that the convening authority filed against the defendant. In holding that the charges comported with the Appointments Clause, the court cited the secretary’s overall control of military commissions, promulgation of rules governing those tribunals, and the CMCR’s review of many military commission cases. The 2023 D.C. Circuit decision in al Bahlul discussed the impact of Arthrex on Edmond. The court acknowledged that it was “plausible” to argue, as al Bahlul had in his Appointments Clause challenge, that Arthrex had converted the principal officer’s guidance into an essential factor. However, the 2023 D.C. Circuit decision also noted that in Arthrex, Chief Justice Roberts had warned against viewing the principal officer’s ex post review as an “exclusive criterion” under the Appointments Clause.
Furthermore, the D.C. Circuit was on notice in 2023 that Appointments Clause issues might also emerge in category 2 situations where the secretary had not ratified the convening authority’s charging decisions but instead had provided ex ante guidance. An amicus brief by the chief defense counsel in the military commissions informed the court that the Appointments Clause issue would also apply to cases in category 2, including the 9/11 case in which negotiations were ongoing. With the benefit of this advisory, the court nonetheless found that the convening authority’s exercise of authority complied with the Appointments Clause.
Category 2 cases in which the secretary does not ratify a convening authority’s decision turn on the specificity and concreteness of the secretary’s ex ante guidance. Construing an agreement as binding would clearly violate the Appointments Clause when the secretary provided little or no ex ante guidance to the convening authority. Suppose that in the 9/11 case, the secretary had given Gen. Escallier the following open-textured instruction: “All options are on the table; you can dismiss all charges against the defendants or insist that they plead guilty and serve a life sentence. It’s all up to you.”
Under the Appointments Clause, the open-ended authority that this instruction conveys would lack the requisite “high degree of oversight and control.” The blanket delegation would allow the secretary to shrug off the anger of victims’ families, members of Congress, or the public, with the blithe disclaimer, “Don’t blame me—blame the convening authority.” Such a retreat from accountability attacks the Appointments Clause at its core. The 9/11 plea does not present this problem.
The Framework of Military Commission Rules
The language of the military commission rules affirms this commitment to ex ante guidance. Consider again RTMC Chap. 12-1, which states that the convening authority “is authorized to enter into … Pretrial Agreements,” “[u]nless such authority is withheld by the Secretary” (emphasis added). The meaning and logic of the term “withheld” is ex ante and prospective. For example, Merriam-Webster defines “withhold” as “hold back from action: check” or “refrain from giving, granting, or allowing.” To use the first dictionary definition of “withhold”—“hold back from action: check”—in this context, the definition should apply before the fact, when the convening authority “is authorized” ex ante to craft agreements with a defendant.
At that point, the secretary may “hold back” or “check” the authorization, or “refrain from giving, granting, or allowing” permission to negotiate. In order to “hold back” authority, an official “refrain[s]” from “giving, granting, or allowing” that authority ab initio (in the first place). Merriam-Webster’s example—tax withholding—confirms this ex ante meaning. In tax withholding, an employer undertakes in advance to deduct a specified amount from an employee’s paycheck and pay that money directly to the IRS. Tax withholding is an effective means of revenue collection for the government and an effective hedge against underpayment of tax precisely because the employer undertakes to comply in advance. Scrambling during each pay period to withhold tax on an ad hoc basis would be unworkable for employers, employees, or the government.
The same logic extends to power of the convening authority that “is withheld” by the secretary of defense. Keeping the parties to a plea negotiation guessing about whether or not the secretary will approve a deal would sabotage plea negotiations before they start. In contrast, either withholding power to negotiate or providing specific and concrete guidance ex ante on the use of that authority is a workable approach.
Reading the military commission rules to prioritize reasonably specific and concrete guidance complies with the Appointments Clause. Providing guidance in advance tightens the secretary’s control over the convening authority, by supplying parameters for plea negotiations. It also heightens accountability. Interested constituencies can learn the guidance and provide feedback on an ongoing basis. Transparency, consistency, and accountability are mutually reinforcing values.
Moreover, the logic of the Appointments Clause suggests that guidance from the secretary can be either express or implied. As the great New York common-law judge (later U.S. Supreme Court Justice) Benjamin Cardozo noted in Tauza v. Susquehanna Coal Co., both express and implied agency can bind a principal. The secretary’s guidance can be implicit, as long as circumstances frame that guidance as reasonably specific and concrete. Here, the secretary’s guidance met that test, particularly given Austin’s rejection of the 9/11 defendants’ request that he include Guantanamo conditions of confinement in the plea deal.
Austin’s refusal to include the side issue of conditions of confinement in the deal also spoke volumes about the twin pillars of the agreement: (1) dropping the death penalty in exchange for (2) the defendants’ acceptance of a life sentence and full participation in a lengthy and detailed hearing on their guilt. Austin could have toppled those pillars, instructing the convening authority that no deal based on these terms was acceptable. Alternatively, at that early juncture, Austin could have himself taken on the role of convening authority. Austin did neither. Instead, Austin merely addressed the side issue of conditions of confinement. That affirmative choice left the principal pillars of the agreement intact. Indeed, the plea deal that the convening authority announced on Aug. 1, 2024, meticulously traced the outlines that prosecutor Trivett had drawn in his 2023 memos, written before Escallier started work.
The Importance of Reciprocal Material Concessions
That guidance from a principal officer is necessary but not sufficient for a binding plea deal in military commissions. In light of the secretary’s control of the military, defendants seeking to enforce a deal with the convening authority should have to show that the negotiations have yielded concrete results, which I call “reciprocal material concessions.” The Court of Appeals for the Armed Forces’s decision in United States v. Dean linked the enforceability of a plea deal in a court-martial to the defendant’s start of performance of the plea’s terms; RMC 705(d)(4)(B) does the same for military commissions. Concrete results that have triggered the start of performance results show that the negotiations have borne fruit and prompted the defendant’s reliance. When reciprocity collapses, such as through a failure of performance by the accused, either the convening authority or the secretary can walk away, as they can under RMC 705(d)(4)(B). But reciprocal measures by the accused and the prosecution reinforce the case for following through on past commitments.
Applying the Test to the 9/11 Plea Case
The plea agreement in the 9/11 case meets both the reasonably specific and concrete guidance prong and the reciprocal material concessions prong. The D.C. Circuit should thus hold that the plea agreement is binding. This holding is consistent with the rules of military commissions and the Appointments Clause.
The guidance from the secretary to the convening authority here was implied, but—as elsewhere in the law of agency—the surrounding context rendered that guidance as specific and concrete as express guidance might have been. When the secretary appointed Escallier as convening authority in August 2023, serious negotiations had been proceeding for over a year. Those negotiations stemmed from factors with special resonance for the secretary and the defendants, respectively. The secretary wanted to avoid years of litigation in the case, particularly on motions to dismiss the capital charges due to the government’s torture of the defendants. The defendants had an incentive that was even more straightforward: They wished to avoid the death penalty.
Based on the situation on the ground, the secretary needed Escallier to craft an agreement that achieved three basic goals: (1) withdrawing capital charges, which were unacceptable to the defendants; (2) insisting on life imprisonment, since anything less would be unacceptable to the government; and (3) requiring a formal acknowledgement of guilt by the defendants in a proceeding that also permitted participation by victims’ families. This is guidance in a very tight window.
The convening authority had to negotiate details of implementation within these tight parameters. In his November 2024 decision holding that the plea agreement was binding, Military Judge McCall noted that Secretary Austin was “likely aware [that plea agreement] … negotiations were ongoing.” Moreover, McCall remarked that legislators had sent letters to Austin detailing their concerns before Austin’s appointment of Gen. Escallier. As McCall found, despite his knowledge of the negotiations, Austin had not sought before Aug. 2, 2024, to remove Escallier or withhold her authority.
In addition, the parties have made material reciprocal concessions in the case. These include stipulations of fact that the defendants have submitted and their agreement not to question witnesses in another hearing on a motion by defendant al-Baluchi, who is not a party to the plea agreement. One vital question for the D.C. Circuit to address is whether these steps constitute “detrimental reliance” by the defendants on the plea agreement. In decisions such as the Fourth Circuit’s United States v. Bailey, courts have held that it is unfair for the government to revoke a plea when the defendant, counting on the agreement, has already taken steps under the agreement that would make the defendant worse off if the deal evaporated. Here, the D.C. Circuit will have to carefully examine each step that the defendant took. On the stipulations, the court’s review should center on whether the defendants’ statements merely referred to old evidence or provided new information. In the former case, the trial court could simply allow the defendants to withdraw their statements and bar the government from referring to the statements at trial. In the latter case, the government has already seen the new information and can use it as part of its trial strategy, including questioning of witnesses. The court cannot “put the toothpaste back in the tube,” which would create an ongoing disadvantage for the defendants at trial.
The defendants’ foregoing of cross-examination of government witnesses may also have an adverse impact. That tactical pivot may remove the option of pursuing a joint strategy with the defendant whose motion brought on that hearing. A joint defense strategy can provide a significant advantage to each defendant, by avoiding the risk of the familiar “prisoner’s dilemma” in which each prisoner has an incentive to inform on his fellow inmates. Here, the pleading defendants’ foregoing of cross-examination may have fatally undermined any prospect of a joint defense strategy. Since the parties to the plea have displayed a willingness to do the government’s bidding in their fellow defendant’s case, that defendant may view future collaboration with the pleading defendants as suspect. That limit on the pleading defendants’ options increases the government’s leverage in future negotiations and at trial, if a trial ultimately occurs. Limiting the defendants’ options is a form of prejudice that the government would trigger by walking away from the plea agreement. The government cannot “unring that bell.” The absence of a workable remedy for prejudice to the pleading defendants is a reason to construe the plea agreement as binding.
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The D.C. Circuit will hear oral argument in the 9/11 plea case on Jan. 28. The panel for this matter includes two Obama appointees—Judges Patricia Millett and Robert Wilkins—and one Trump appointee, Neomi Rao. Once the panel makes a decision, the case may go either to the full (en banc) D.C. Circuit or—via a petition for certiorari—to the Supreme Court. The outcome will be a signpost in the military commissions’ twisting path since the 9/11 attacks.
– Peter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National Security Law and Professional Responsibility. He is the author of Law’s Detour: Justice Displaced in the Bush Administration (New York: NYU Press, 2010). Published courtesy of Lawfare.
