A dispatch from the U.S. Court of Appeals for the D.C Circuit on the Guantanamo plea agreements.
It is the morning of Tuesday, Jan. 28 at the U.S. Court of Appeals for the D.C. Circuit, and people are calling to each other from between the gallery rows, flashing familiar smiles of greeting. The sense of camaraderie is hardly surprising—for many, today’s hearing is a culmination of years, even decades, of work on the Guantanamo Bay military commissions. Charges in this case were originally filed in 2008.
We are here because on July 31, prosecutors announced that Sept. 11 defendants Khalid Shaikh Mohammad, Walid ‘bin Attash, and Mustafa al Hawsawi had reached pretrial agreements (PTAs)—the military commissions’ terminology for guilty pleas—with the court’s convening authority Susan Escallier, who had been appointed by Secretary of Defense Lloyd Austin in 2023. The agreement stipulated that the defendants would plead guilty in return for a life sentence, precluding the death penalty. Then, two days later, Austin announced that he was removing Escallier’s authority to enter into PTAs in the case and was withdrawing from the agreements. This sparked a public backlash. It also prompted legal challenges.
The military judge presiding over the trial of the defendants, Col. Matthew McCall, subsequently found that the attempt to cancel the pleas was unlawful for two reasons: first, because Secretary Austin did not have the authority to withdraw from PTAs into which Escallier had already entered, and second, the PTAs were already binding at the time of Austin’s order because the defendants had begun to perform on their promises under the deals.The U.S. Court of Military Commission Review declined to disturb McCall’s ruling, rejecting the government’s petition for a writ of mandamus.
But the government, having first made the agreement and then overturned the agreement, did not take this ruling as a final answer. The Justice Department filed a mandamus petition with the D.C. Circuit requesting a writ of mandamus recognizing that Secretary Austin’s Aug. 2 order had validly withdrawn from the PTAs and prohibiting the military court judge from holding hearings in which the defendants would enter their guilty pleas. The department also requested an emergency stay. The D.C. Circuit granted an administrative stay on Jan. 9 and ordered a briefing on the merits by the end of the month, with an oral argument to follow.
All of which is why I’m perched on a wooden bench at 9:30am on a Tuesday morning, the portraits of former D.C. Circuit judges gazing down at me—while people who have been at Guantanamo litigation a whole lot longer than I have chatter in greeting around me.
U.S. Court of Appeals Judges Neomi Rao, Robert Wilkins, and Patricia Millett take their time in getting started. Several minutes tick by before we are prompted to rise as they enter the courtroom.
Melissa Patterson steps forward for the government. She argues that Secretary Austin had the authority to withdraw the plea, and that this authority meant that Judge McCall had been wrong to squelch the squelching of the plea.
“I’d like to start with the adequacy of an alternative form of remedy,” Judge Wilkins begins. He is referencing one of the standards for a writ of mandamus—that the petitioner has no other adequate remedy available. Given the extraordinary remedy that a writ of mandamus represents, it is essentially viewed as a last resort. Does the government truly have no other means of achieving their aims?
Part of the problem, Patterson says, is that it’s not clear whether the relevant statutory authority, 10 U.S.C. § 950g, allows the government to appeal to the D.C. Circuit from the military commissions system. (That rule provides that the D.C. Circuit has “jurisdiction to determine the validity of a final judgment rendered by a military commission” and clearly does apply to the defendants’ right to appeal.)
The adequacy question leads down a path of hypotheticals. The government contends that if the D.C. Circuit does not prevent the military commission from entering the pleas, double jeopardy could, conceivably, attach, meaning that if the pleas fell apart, the government would be unable to bring the defendants to trial for their crimes—in the government’s view, an inadequate remedy.
“There is a risk that constitutional double jeopardy will attach and we will not be able to unwind these pleas once accepted,” Patterson contends, “The exact bounds of which constitutional guarantees apply at Guantanamo Bay have been the subject of, let’s say, frequent litigation.”
Bitter chuckles sound throughout the court at the understatement.
But if the defendants agreed to waive double jeopardy, Judge Millett asks, would that be an adequate remedy? Patterson says that there would still be a significant delay and the need to unwind the pleas, which is another reason that alternative means are not enough.
Patterson also raises the point of prejudicial evidence. If the defendants were to enter into guilty pleas, a case could be made that after the fact, a fair trial could not be conducted because those admissions could be used against them in any future case that might follow a rescinding of the plea.
Judge Wilkins interjects that if the court were to rule in favor of the plea, it would establish precedent that might enable retrial. “If we were to write an opinion…and we conclude that there is an adequate alternative remedy because the government can seek review under that point, isn’t that going to be binding precedent on that issue?”
Judge Rao interrupts this line of thought to discuss the equities in the case. She asks whether Austin could have exercised his authority to interject at any point prior to the signing of the PTA. Could he have instructed Escallier not to enter pleas that would give up the death penalty? Yes, Patterson responds. Could he have reserved the powers of convening authority to himself rather than delegate them to Escallier? Yes, Patterson responds again. But he did not do that for many years, Rao remarks. Why, then, she asks, is the extraordinary writ of mandamus appropriate?
Patterson says that the government’s briefs explain why Austin’s decision to let the process play out rather than intervene earlier was a smart one.
Judge Millett remarks, “This is a control within the executive branch problem, I don’t know why it’s a judicial problem.”
Patterson says that Austin wanted an “independent process” and feared claims of unlawful command influence—that is, a military official improperly influencing a legal proceeding—if he interfered during the plea negotiations. But he got those claims anyway, Judge Millett points out. If the court views this as the secretary having slept on his rights, why should the writ issue, she asks. The fact that he made an error is not enough.
The legal issues aside, the equities support mandamus, Patterson insists. She points to the importance of the secretary’s determination to effectuate matters of national significance—not the determinations of his subordinates.
She raises the fact that the military commission has ordered parties to be available to start the plea process as soon as Jan. 30. In light of this, Patterson requests that—in the case that the court declines to intervene—the judges should at a minimum extend their administrative stay to allow the government to determine its next step for relief.
The judges return to the question of double jeopardy and alternative remedies. If the court allows the PTAs to move forward in the military commission, what options will the government have to obtain the relief they seek today? Patterson runs through the possibilities. The pleas would be entered, followed by sentencing, at which point the case would return to the D.C. Circuit—a timeline of at least three years.
“The scenario we’re talking about here is we are forced under duress to proceed through these pre-trial agreements through years of sentencing proceedings, and then we go back to this court and unwind it to the point we are right now, and we do not think this is an adequate alternative avenue for relief,” Patterson claims.
The questioning then turns to the issue of performance—which is to say, whether or not the defendants had begun fulfilling the terms of the agreement. Judge Rao asks whether the government would have to prevail on its argument that the defendants hadn’t yet begun performance in order to secure the writ; Patterson conceded that it would. This launches a crash course in contract law. Patterson explains that performance had not legally begun under the stipulations of Rule for Military Commissions (RMC) 705(d)(4)(b). That provision, she claims, grants the convening authority a limited window to withdraw a plea before the defendant begins performance of promises contained in the agreement.
The question seems to boil down to: When does performance of an agreement begin?
At first, Patterson approaches this question by arguing that performance hadn’t begun because the defendants had not yet done anything pursuant to the agreement. In other words, she is saying that McCall had erred in finding that the defendants’ actions—specifically, their entry into stipulations of fact and their declining to question a witness at a suppression hearing that took place the day after their pleas were announced—constituted performance under the PTAs, which is what would have made them binding.
She points out that the stipulations of fact are included in the agreement itself, and that the defendants signed the stipulations prior to the completion of the PTAs, which only occurred after Escallier signed the agreements a few days later. The agreement did not come into existence as such until the convening authority signed it. Doing something before the agreement existed does not constitute performance of a promise contained in the agreement, Patterson contends. A “promise” is necessarily a promise to do something in the future as a matter of “basic contract law,” Patterson says.
A string of analogies—purportedly meant to clarify the point—commence.
From Judge Wilkins, there is a mention of a hypothetical fence, half-painted prior to the signing of a contract. From Judge Millett, a Taylor Swift concert ticket offered to a little girl for the bargain price of ten dollars.
“Is the government’s position that contracts cannot be performed simultaneous with the agreement itself?” Judge Millett asks, “This is a case about simultaneity.” Where does it say anything about a promise only being forward-looking?
Even if you don’t like the simultaneity idea, Millett says, weren’t the defendants continuing to perform by having entered into the stipulations of fact? Patterson responds that it’s true that the defendants were not breaching their PTAs—which would have been the case if they had tried to withdraw from the stipulations—but not breaching is not the same thing as continuing to perform.
The court continues to contemplate the question of performance. Contained in the language of RMC 705(d)(4)(5)—which says that “the convening authority may withdraw from a pretrial agreement at any time before the accused begins performance of promises contained in the agreement”—Patterson argues that there is an implied window after signing and before performance during which the convening authority may withdraw. But how significant is that window, Wilkins and Millett ask, if it could in theory be infinitesimal—if, for example, the defendants had withdrawn their motions five minutes after signing? Patterson concedes that would constitute performance.
In a somewhat heated exchange, Judge Millett and Patterson discuss whether the text of RMC 705 suggests that there cannot be simultaneous contracting and performance of PTAs. (In other words, that performance of a contract cannot happen simultaneously with the creation of the contract itself.) Patterson admits that such a PTA is possible under the rule, but only because the parties are permitted to create terms that would “contract around” 705(d)(4)(b). Millett points out that the PTAs also say that failure to enter into the stipulation constitutes a material breach of the agreement; that provision doesn’t make sense if entry into the stipulations was complete before the PTAs came into existence. Patterson responds that the stipulations are revocable.
The questioning over, Patterson concludes her remarks, asking to reserve a few minutes for rebuttal. “I do know that we are under a demanding standard and that we have made a big ask of this court. But there have been something like 31 petitions for mandamus for this court from these military commissions, all by respondents. This is the first time the United States has sought one. This is the circumstance to issue the writ and effectuate and allow the secretary of defense’s determinations to govern the prosecutions of the mastermind of 9/11 and two alleged co-conspirators.”
With that—just over an hour and 45 minutes of questioning—Judge Millett calls for a five-minute break. People chat in the hallways and check their phones, which we were required to turn off for oral argument, eager to catch up on notifications.
The court calls the respondents’ counsel to the stand. Michel Paradis, who represents Mohammad, launches into the question of appropriateness—that is, whether or not it is appropriate for this court to hear this case.
“It is not appropriate for the government to come to court to save itself from an agreement that it entered into on which the parties began to perform and on which the secretary of defense had plenty of opportunity to not only know about but to prevent for years,” Paradis begins in a sonorous baritone, reminding everyone in the room that he could host a radio show.
He doesn’t get very far before Judge Rao interjects. “Assuming that we think the military judge did err here on both questions…why would this not be an appropriate case for the writ given how extraordinary the circumstances are?”
Paradis asserts that this is fundamentally an executive branch issue, not the court’s responsibility. The government made decisions as a political branch and is now unhappy with the consequences. Austin took none of the actions that he could have taken, and a jurisdictional principle of mandamus is that the party has neither a prospective means of relief nor a past means that they forewent. Paradis affirms that the delegation to the convening authority means that Austin could have limited Escallier’s authorities ex ante, but he cannot retroactively rescind them.
This gets to the question of unlawful command interference. After a back and forth—in which Millett asks if the defense’s position would be the same if the president had intervened rather than the secretary—Paradis clarifies that Austin’s actions were improper not because of unlawful command influence, but because he simply lacked the authority to intervene as he did.
He points to Bahlul v. United States. While Bahlul argued that the convening authority lacked the authority necessary to make independent decisions, the D.C. Circuit in that case found that—consistent with the Appointments Clause—the convening authority was an inferior officer appointed by the secretary of defense. In line with that ruling, Paradis argues, Austin could have imposed any limits he wanted on Escallier at the time of her appointment, but not retroactively.
Additionally, Paradis says that even if Austin had the authority to act as he did, he was still too late—performance of the plea had begun, as evidenced by the defendants’ decision to forbear from questioning witnesses, constituting fulfillment of a “forward-looking promise,” in the words of the government.
What follows is an exchange that dives deep into the facts of what happened during this crucial period between the PTAs’ being signed and Austin’s order stating he was withdrawing from them. Judge Millett, referencing the joint appendix, is interested in the question of whether or not the transcript supports the defendant’s claim that the defendants’ declining to question a witness was evidence of forbearance and therefore performance. She points to the fact that on Aug. 1, the day after the PTAs were announced, Judge McCall chose to focus exclusively on defendant Ammar Baluchi—who had not signed a PTA—while excluding Mohammad, ‘bin Attash and al Hawsawi from questioning. This suggests, in her view, not that the defendants forbeared from questioning the witness, but rather that the judge had mandated that “it’s just Mr. Ali’s day.”
After some commotion about pagination (“This is very confusing,” Judge Millett despairs), Paradis points to the defense reply brief, which contends that all of the defendants had questioned the witness the day previously, while only Baluchi’s counsel questioned the witness the day after the PTAs were announced. This constituted forbearance—regardless of McCall’s comments in the transcript—because the defendants not only didn’t question the witness, they also didn’t object to questions from the government or questions from Baluchi’s lawyer, with whom they had gone from being in a joint trial to adverse parties, given that in their PTAs, they were stipulating to facts that implicated Baluchi.
The deep dive continues into a parsing of the transcript. Paradis argues that Judge McCall was the finder of fact and decided performance had begun; Millett asks what they should do if his decision seems contradicted by the text. Paradis disagrees that the text is inconsistent, and besides, the conversation she’s pointing to involved a lawyer whose client wasn’t party to a PTA and wouldn’t know anything about what they required. He circles back to the text of the PTAs themselves and references some paragraphs that are under seal that he would like to discuss later in a closed session.
“But once again, this is not our burden,” Paradis says, “To the extent that we’re going to engage in fairly fine parsing of the transcript in this case and fairly ambiguous statements,” that in itself is a basis to conclude there’s at least uncertainty. Paradis is suggesting that the question of performance is a question of fact—in other words, do the facts constitute performance? And that’s a question that is treated as a jury question in contract cases; it’s a question for the fact-finder, who in this case is Judge McCall.
He begins to wrap up: “At this late date, when there’s been so much delay, it’s not the job of this court to delay a case that has arguably been delayed for 20 years for reasons entirely of the government’s own making another 20 years.”
Judge Wilkins asks whether he wants to say anything about the stipulations of fact. Paradis concurs with the judges that entry into a stipulation of fact occurs at the time it’s accepted, citing paragraph 62 of the PTA. The government concluded an agreement that would be binding as soon as it was signed. They don’t like that now, but “there were many opportunities that they could have exploited long before” entering into the PTA.
Judge Millett has more questions about the transcript. They talk about the complicated posture of the case, with one defendant’s case having been severed and one defendant not having entered a PTA, whose lawyers are whose, statutory requirements for learned counsel—all in service of sorting out whether what happened at the hearing was forbearance. “So much of this is Greek to me,” she says, speaking for many of the spectators. She takes issue with Paradis’s assessment that lack of objection constitutes forbearance and therefore the beginning of performance of the agreement.
Judge Rao suggests the court should hear from Matthew Engle, who represents ‘bin Attash, but Judge Millett has one more question—a “more mundane statutory question” about 10 U.S.C. § 950g. She reads from the statute: the D.C. Circuit has “exclusive jurisdiction over a final judgment rendered by a military commission, parentheses, as approved by the convening authority.” Does this mean that a convening authority who is opposed to plea agreements could simply refuse to approve the sentence, thereby foreclosing the Circuit’s review under 950g because there would be no “final judgment” to look at? Could the convening authority pocket veto the final judgment? Possibly, Paradis answers, but if that happened, mandamus would probably be both available and appropriate in that case. She has another hypothetical, also aimed at understanding whether the court will be able to review. Paradis says it will.
With that—amounting to about an hour and a half of questioning—Paradis takes a seat. He’s followed by Engle. He opens with two points on the RMC 705’s standard for withdrawal.
First, he says, “beginning performance is, by design, a very low standard.” RMC 705 is identical to Rule for Courts Martial 705, which applies throughout the military justice system and has been thoroughly interpreted. The government, he says, is sort of slipping into arguments about prejudice and detrimental reliance, but that is not the right standard. He cites United States v. Dean, in which CAAF (the Court of Appeals for the Armed Services), the highest military court in the land, found that defendants did not need to prove detrimental reliance—that is, that one party relied on the promises of another party and suffered loss as a result—in order to bind the government to a plea agreement; the detrimental reliance standard only applies if the defendants did not already begin performance on the agreement. (In Dean, CAAF found that the defendant had begun performance of the agreement before the convening authority withdrew from the PTA.) Secondly, “the reason Dean is entitled to great respect”—despite its not being binding upon this court as a military court—”is that there is no analogue to RMC 705 in the Article III system.” Engle’s argument is that signing the stipulations of fact, even if technically done before the PTAs were executed by the convening authority, constitutes performance under Rule 705. “It’s a promise that has already been fulfilled—it springs into existence.”
Judge Rao suggests signing the stipulations is part of the offer of the contract, not performance of it.
“I don’t agree that it can’t be both of those things,” Engle says. The back-and-forth continues on the question of offer versus promise. Isn’t signing the stipulations no longer a promise if it’s already been fulfilled by the time the convening authority accepts the offer? The government is worried about maintaining its window, Engle says, and it could have done that by not requiring that the stipulations be signed before the PTA was accepted. Instead, it insisted that the defendants sign the stipulations first. The government can’t have its cake and eat it too.
Besides, he says, the claim is not grounded in contract law; it is grounded in RMC 705. Two Supreme Court cases—Noyd v. Bond and Middendorf v. Henry—found that federal courts should defer to military courts on issues where there is no civilian analogue. So if the question is “How can something be both the fulfillment of a promise and something that’s already occurred?”’ the answer is that Dean says it can be. The question actually shouldn’t be analyzed de novo—anew—by this court; CAAF is entitled to a “doubly deferential” standard of review—first, because mandamus requires a clear and indisputable right, and second, because this issue is unique to military justice.
But the judges still want to talk about contract law. They look at the language about the stipulations of fact in the PTAs, debating whether it constitutes a promise or an offer. They talk about the timing of the signatures. Engle tries to steer the conversation back to Dean; Rao reminds him that Dean is not binding and they are trying to reconcile that decision with contract principles. Engle notes that Dean has been on the books for 15 years, and everyone who negotiated the deals was operating under that understanding of how PTAs work. He wants to make one more point: Judge Millett said earlier that this is all “like Greek,” and he agrees. When he came to the military commissions after years of practicing in Article III courts, it was Greek to him too. That’s because these are military issues, and that’s why he keeps coming back to Dean.
He takes a seat.
Patterson stands for her rebuttal. Six minutes.
“What happens if the convening authority dissents to the whole darn thing? Would there be procedural authority that would bring it here?” Millett asks, echoing her question to Paradis. She is trying, it seems, to determine if the government could use that as an avenue for alternative remedy. Patterson is uncomfortable with the hypothetical.
“I am very loath to endorse a route that involves a government official defying a military judge’s order.” She reasserts the lack of adequate remedies outside of the mandamus, closing the government’s argument.
Judge Millett calls a recess, to be followed by a closed hearing.
We grab coats and check cell phones, greeted by a flood of neglected notifications from the past four hours.
“We need everyone to leave for the closed hearing,” the security guards say, herding us out of the room. Everyone steps into the hallway, pulling on jackets, comparing reactions, getting organized. A security guard steps out to announce that they are closing the whole floor and we have to leave—the elevators are that way.
And with that, we’re done.
– Olivia Manes is an associate editor of Lawfare. She holds an MPhil with distinction in politics and international studies from the University of Cambridge and a dual B.A. with distinction in international relations and comparative literature from Stanford University. Previously, she was an associate editor of the Cambridge Review of International Affairs.
