An Air Force Colonel Just Overruled the Secretary of Defense

A small victory for the rule of law emerged recently from the most unexpected of places: the Guantanamo Military Commissions. Air Force Col. Michael McCall, the judge presiding over the trial of four defendants accused of perpetrating the Sept. 11 attacks, issued a ruling siding with the law over the preferences of his boss, Secretary of Defense Lloyd Austin. 

The context of this remarkable ruling relates to the whirlwind of events this summer. In quick succession, three of the defendants in the so-called 9/11 case agreed to plead guilty. But as soon as the pretrial agreements (or PTAs, in military justice lingo) became public, Austin swooped in to cancel them. He cited no legal authority for his action, stating merely that he was taking it “in light of the significance of the decision” to enter PTAs. (One can only assume that “significance” refers to the fact that the case is sufficiently high profile that the decision would provoke public outrage, but he didn’t say.) But significance is a policy determination, not a legal basis. As Judge McCall put it, “significance of a PTA is not one of the reasons the governing legal sources permit the Convening Authority to withdraw.” So he overruled Austin, holding that his effort to cancel the PTAs was legally ineffectual and the pleas still stood. It was a decisive statement that in his courtroom, the law, not the politics of the moment, takes precedence—even over the secretary of defense.

In many ways, the confrontation exemplified a tension as old as the military commissions themselves: In seeking accountability for alleged acts of terror, should the United States turn to policy or the law? In the early days after the Sept. 11 attacks, there was a pervasive view that the American system of laws was inadequate to the threat. But the Bush administration’s efforts to create a legal black hole at Guantanamo were stymied, sort of, by the Supreme Court and eventually Congress. The back-and-forth eventually led to the creation of the military commissions, which purported to establish a legal mechanism for criminally trying alleged terrorists by means of a kind of hybrid Article I-Article II-law of war system. (There’s a separate and ongoing question about whether the commissions are legal in and of themselves, but that’s beyond my scope at the moment.)

And so cases were heard in Article III courts, legislation was passed, regulations were promulgated, lawyers and judges were appointed, and an infrastructure was built around the premise that the United States’s response to terrorism should be based in the law. The thing is, the notion never fully took hold. Every once in a while, a controversy like the 9/11 pleas emerges from Guantanamo, and politicians who had back-burnered the whole issue confront the inconveniences of a legal system to which even they are supposed to be bound. 

To be fair, the legal questions Austin’s order raised are not obvious and in any event are not yet resolved. The government, predictably, has filed a petition for a writ of mandamus in the Court of Military Commissions Review. In the meantime, Secretary Austin issued a new order that removed the authority of Susan Escallier—the retired brigadier general whom he had appointed military commissions convening authority—to enter into PTAs with defendants in two other cases (it has no bearing on the 9/11 case). He again justified his action by reference to the “significance of the decision” to enter into PTAs, and again cited no legal authority. While this order doesn’t present the same temporal problem Judge McCall deemed fatal in the 9/11 case, assuming that neither defendant has entered into a PTA, it does double down on on bifurcating the duties of a convening authority—rather than transferring the whole case to himself as expressly permitted under the rules, he merely took away the power to enter into PTAs. In short, uncertainty remains. So it’s worth a deeper dive into what happened here.

In August, the government announced that, after years of negotiations, it had reached plea agreements with three of the defendants in the 9/11 case, Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, and Mustafa Ahmed Adam al Hawsawi. A mere two days later, Austin issued an order withdrawing from the agreements. He also removed Escallier’s authority to enter into such agreements in the 9/11 case going forward. He wrote that he had determined that “responsibility for such a decision should rest with me.” 

Many of those who have been involved in the military commissions—including me—argued against Austin’s action. Others celebrated it. Most of the commentary focused on the implications of the decision or debated the wisdom of rejecting guilty pleas. But down in the Guantanamo military commissions, their mandate is law, not policy. And Austin’s decision didn’t have only policy dimensions—it raised serious legal questions as well. So, largely unnoticed by the policy types, the judge and the lawyers did their jobs: They engaged with the law. 

Four days after Austin’s order, Mohammed’s lawyers filed a motion asking Judge McCall to schedule an entry of his PTA—the formal process by which the agreements come before the court—thus asserting that the purported “withdrawal” was invalid. It was a means of bringing the issue before the court. By asking the judge to enter the plea, they knew that the prosecution would object on the grounds that no such plea existed after Austin’s order. The court would have to decide who was right. It boiled down to two distinct but overlapping questions: Did Austin have the authority to do what he did, and were the PTAs already binding at the time he did it? 

But Austin’s order raised an implicit third question as well: Would the military commission uphold the rule of law, even against the boss? With his order, McCall responded with an emphatic “yes.” 

Did Austin Have the Authority to Do What He Did?

To an outside observer, it may seem absurd to question the secretary of defense’s authority to take the action he did. After all, the Military Commissions Act of 2009, which established the entire legal framework for Guantanamo, puts him in charge of the whole built-from-scratch system. Congress defined the crimes that could be tried in the military commissions and provided some basic rules about how the commissions should function—primarily by reference to how they do or don’t diverge from the Uniform Code of Military Justice—but the secretary was tasked with filling in all the details. He had to promulgate regulations, create rules of procedure and rules of evidence, and manage the resources that make the system function (such as appointing military judges, lawyers, and interpreters). Crucially for this situation, he was also made the convening authority of the whole enterprise. 

Of course, as with countless other jobs in the executive branch, the secretary is permitted to delegate certain responsibilities, including those of convening authority, to whomever he selects. It was under that framework that Austin appointed Escallier as convening authority for military commissions back in August 2023.

But, as the current dispute over Austin’s order demonstrates, it turns out that delegation is not merely for the sake of efficiency; it has legal consequences. Once the secretary empowers a subordinate convening authority, his power to wrest back control is limited. 

Understanding why requires a bit of context, because it all relates to specific rules governing the role of convening authority—a role that has no real analogue in the civilian criminal justice system. In the military commissions, as in the courts-martial system, the convening authority is a central actor. It is the convening authority, not a grand jury, who decides whether to approve prosecutors’ recommendation to bring criminal charges against a defendant. Upon doing so, the convening authority assigns the case to a judge and allocates resources to everyone involved in the case (judge, prosecution, defense). If a case goes to trial, a jury of active-duty commissioned officers, called a panel, will deliver a verdict, and the judge will determine a sentence if the verdict is guilty. But neither will be final until the convening authority says so. If the case avoids trial by means of a guilty plea, it is the convening authority, not prosecutors, who must enter into the agreement with the defendant. And if prosecutors were to decide they no longer wished to pursue a case against a defendant, they must convince the convening authority (or the secretary of defense) to dismiss the charges; they do not have the power to do so themselves.

In light of these cross-cutting authorities, the military commissions have detailed rules about what a convening authority can, can’t, and must do, mostly with an eye toward ensuring the integrity and independence of the process. The foundational principle is identical to the one underpinning the courts-martial system: The convening authority must have the legal authority to act with finality; his or her decisions are not simply reversible by someone of a higher rank. This is meant to protect against what the military calls unlawful command influence. The concern is that in such an extremely hierarchical system as the military, there’s a particular risk that deference to those in charge might compromise the fairness of a criminal proceeding. 

Of course, the devil is in the details—that is, what the rules actually require. The military commissions rules don’t say much about the specific posture here, which relates to the interaction of the secretary and the convening authority he has appointed. They don’t expressly say, for instance, whether or under what circumstances the secretary can reverse a decision by his designee.

The Rules for Military Commissions (R.M.C.), which are analogous to the civilian courts’ Rules of Criminal Procedure, contain only two provisions specifically addressing the respective powers of a superior convening authority (here, Austin) and a subordinate convening authority (here, Escallier). Both rules, however, are limited to actions relating to the charges against the defendant. 

The first, R.M.C. 601(f), allows the superior to transfer the charges from the subordinate to himself/herself, either before or after they have been referred, “for further consideration.” This rule speaks to the role of a military commissions convening authority in deciding, upon recommendation from prosecutors, whether or not to convene a commission—that is, whether or not to bring charges against a defendant and put the case before a judge. At first glance, this may appear to be exactly what Austin did. But a closer look at his order shows that Austin didn’t transfer the charges to himself; he didn’t lay claim to the role of convening authority over the 9/11 case. Rather, he simply removed from Escallier certain authority attendant to that role—specifically, the authority to enter into PTAs. 

The second, R.M.C. 604(a), allows the superior convening authority to withdraw charges—equivalent to dropping an indictment—at any time before the commission announces its findings. But that’s not what Austin did, either. (Neither entering into nor withdrawing from PTAs constitutes disposal of charges.)

The defendants’ legal teams had argued that because Austin’s order was not authorized by either of these rules or any other express legal authority, it had no effect. The prosecution had argued that Austin’s authority to act did not depend on the Rules for Military Commissions; rather, it derived from the broad legal framework of the Military Commissions Act. 

Judge McCall’s analysis was a textualist’s delight. He looked closely at Austin’s order and identified three separate actions requiring legal authorization: (1) withdrawing Escallier’s authority to enter into PTAs in the 9/11 case; (2) reserving that authority to himself; and (3) withdrawing from the PTAs themselves. He found that all three lacked legal authorization.

Withdraw vs. Withhold

Judge McCall found that in a very literal sense, Austin cannot “withdraw” Escallier’s authority: “Charges can be withdrawn. Authority can be withheld. Word choice matters because the Secretary of Defense’s actions must be tethered to a legal authority.” The distinction is more than semantic—the two words have opposite temporal meanings. Withdrawing authority means taking back something already given; withholding means declining to give in the first place. 

Finding no legal authority for a superior convening authority like Austin to withdraw a subordinate’s authority to act, McCall turned to the question of whether Austin had in some way withheld Escallier’s authority to enter into PTAs—a possibility that no party had raised. Unsurprisingly, McCall found that Escallier had clearly possessed the authority to enter into the PTAs when she did so; both her appointment memorandum and the rules governing the military commissions spelled out her independent authority to take such action, and Austin had taken no action to the contrary. 

In short, the timing of Austin’s purported action was “fatal to its enforceability.” Escallier was acting within her authority when she signed the PTAs, and no mechanism was available to Austin to retroactively remove that authority. Once signed, the PTAs were governed by the regular principles of contract law; Austin could not snap his fingers and make them go away.

As McCall explained, this is explicitly the case with respect to the rule governing PTAs, which provides that the “decision to accept or reject a PTA offer submitted by an accused is within the sole discretion of the Convening Authority who referred the case to trial” (emphasis added). True, Escallier was not technically the convening authority who had initially “referred the [9/11] case to trial.” That was retired Vice Adm. Bruce MacDonald, who referred charges way back in 2012. There have been many convening authorities since then, but at no time did any secretary of defense reclaim the role of convening authority to himself or withhold individual authorities or duties from his appointee. In other words, the 9/11 military commission has been administered by a long line of appointed subordinate convening authorities, all of whom have acted independently from the secretary. When he appointed Escallier, Austin left no doubt that he intended to keep it that way: He wrote in her appointment memorandum that she “shall exercise her independent legal discretion with regard to judicial acts and other duties of the Convening Authority.”

McCall’s analysis didn’t stop with the text (or lack thereof). He explained the significance of this legal framework, why a contrary rule would be an affront to the rule of law:

To consider [Austin’s order] retroactively applicable is to give the Secretary an absolute veto over any discretionary act of the Convening Authority with which he disagrees. This prospect is wholly inconsistent with the delegation of independence in the performance of her duties—a delegation that the Secretary of Defense personally gave Ms. Escallier concurrent with her appointment as the Convening Authority—and the notion that a superior is not permitted “in a specific case and after-the-fact, to influence directly the action of a subordinate convening authority with respect to the latter’s judicial acts already properly taken in that case[.]”

The quoted language is a citation to United States v. Hardy, a 1970 decision from the highest court in the military justice system. Implicit in McCall’s decision to include it is the assumption, or maybe the assertion, that rule of law matters. Hardy is not technically binding as a legal matter (though it is common practice to refer to such case law in commissions cases), but it stands for a foundational principle: The military justice system must be insulated from the whims of superior officers. The proposition is this: Even the secretary of defense—the very person who makes the rules pursuant to congressional authorization—must follow the law. 

Reserving Authority

The second action in Austin’s memo purported to “reserve” to himself the authority to enter into PTAs in the 9/11 case. The effect would be a bifurcation of the duties of the convening authority, split between two people—one responsible for deciding whether to enter into PTAs, the other responsible for everything else. 

Judge McCall held that Austin could not lawfully reserve authority in this manner. There was no textual basis for such a split of convening authority duties in either the Military Commissions Act or the rules applicable to military commissions (namely, the R.M.C. and the Regulation for Trial by Military Commission, or R.T.M.C.). McCall rejected the prosecution’s argument that R.M.C. 705(a) and/or R.T.M.C. 12-1 authorized retroactive “reservation” of certain convening authority duties, finding that reservations could only be made prospectively. And, in another signal that McCall does not intend to run his courtroom as a legal black hole, he noted that the case on which the prosecution relies is not only nonbinding, but it is also unclear that it remains good law after the Supreme Court’s decision this term in Loper Bright. He observed that there appeared to be exactly zero cases in either the military commissions or the standard military justice system in which a secretary had reserved authority to enter into PTAs from his or her subordinate, and that making such reservations would be tantamount to asserting “plenary authority” in a manner “antithetical to the military justice system as it has historically functioned.”

Judge McCall also remarked that Austin’s failure to reserve the authority to enter into PTAs when he appointed Escallier could not have been an oversight. As I had also pointed out, the claim that Austin had been surprised by the pleas was highly dubious. Austin knew that Escallier’s predecessor was in PTA negotiations for over a year before he appointed her. In fact, the fact of the 9/11 case negotiations should have been top-of-mind for Austin’s closest advisers during the months leading up to Escallier’s decision. As part of the plea negotiations, prosecutors had sent “policy principles” to the secretary and/or his deputies for sign-off. (Reporting indicates that the Defense Department general counsel’s office was heavily involved.) These policy principles related to the defendants’ request to include terms in their PTAs that would guarantee certain conditions of confinement after pleading guilty. As the lead prosecutor explained to the court in May, neither prosecutors nor the convening authority could commit to the policy principles without permission from higher-ups, which involved conversations not only within the Defense Department, not only within the wider executive branch, but also with Congress. That means that people in Austin’s inner circle were actively considering whether the Defense Department was willing to make the guarantees the defendants were seeking, and they were even discussing it with government officials outside the department. It could not possibly have escaped their attention that if this matter was on their desks, plea agreements might be imminent. If Austin had wanted to foreclose the possibility of PTAs, he had ample opportunity to take away Escallier’s authority to enter into them before she did so.

Besides, it’s not like entering into a PTA is such a radical step for a convening authority. Escallier’s predecessors had signed PTAs with eight different defendants. In fact, all but two of the convictions the military commissions have ever secured resulted from PTAs. Not one of these deals was challenged by the then-presiding secretary of defense. Indeed, Austin himself declined to interfere with the decision by his prior convening authority, Jeffrey Wood, to enter into new PTAs with two other Guantanamo defendants, Mohammed Farik Bin Amin and Mohammed Nazir Bin Lep, and to sign a modified PTA with another, Majid Khan (disclosure: I was a lawyer on Khan’s defense team).

Withdrawing From the PTAs

Judge McCall likewise found no authority by which Austin could take his third action purporting to withdraw from and thus nullify the three PTAs. Turning a close eye on the text, he noted that the rule governing withdrawal from PTAs, R.M.C. 705(d)(4)(B), conspicuously omits a clause contained in the rule governing entry into PTAs, R.M.C. 705(a): “subject to such limitations as the Secretary may prescribe[.]” Subsection (d)(4)(B) on withdrawing from pleas, by contrast, says nothing about the secretary—it’s up to the convening authority.

Were the Pleas Already Binding When Austin Issued His Order?

Judge McCall also found an entirely separate reason that Austin couldn’t do what his memo attempted. This one related not to his authority relative to his subordinate convening authority but, rather, to the power of any convening authority to withdraw from PTAs at this stage. Here, too, McCall treated the rules as controlling, even over the secretary of defense. R.M.C. 705(d)(4)(B) allows the convening authority to withdraw from a PTA only under four conditions: If the defendant breaches his obligations under it, if a military judge’s colloquy reveals a material disagreement between the parties’ interpretations of the deal, if appellate review causes findings to be set aside, or if the defendant has not yet begun performance under principles of contract law. Austin’s memo did not invoke any of these reasons to justify withdrawal.

Furthermore, McCall found that the defendants had begun performance under their PTAs. They signed stipulations of fact that could be used to establish their guilt, refrained from filing motions or questioning witnesses during proceedings that took place after they signed their PTAs, and had a “dramatic change of litigation posture” on a matter that was “presumably precipitated” by the convening authority’s promises in the PTAs. McCall went on to cite another nonbinding military justice case, United States v. Dean, to refute the prosecution’s interpretation of what performance is necessary to effectuate the PTA. By doing so, he again asserted, albeit implicitly, that the rule of law matters. He refused to analyze this question in a vacuum; he would instead decide with reference to the more mature military justice system and its foundational principles.

This was surprising, at least to me, not because I question whether performance had begun—that much seems obvious to me. (Though it’s worth noting, as a media consortium pointed out in a brief filed before this decision, that it’s impossible for the public to fully assess the PTAs, let alone whether the defendants are performing their obligations under it, because the documents are sealed.) It’s surprising because McCall didn’t need to make a determination on this issue in order to resolve the dispute. He could have left it at the fact that Austin lacked legal authority to displace Escallier and withdraw from the pleas. But that may have invited Austin to try again. Instead, McCall made a factual finding that rendered the PTAs binding on both parties. 

The outcome is undoubtedly an enormous headache for the government. Sure, the decision itself may be reversed on appeal, but the rebuke it represents cannot be. The Guantanamo military commissions were created because the question of what to do with alleged terrorists rounded up during the “war on terror” presented an impossible policy dilemma. Relegating the problem to a special-purpose legal system was meant to make it go away. It largely worked—the dilemma faded into the background, replaced by priorities deemed more urgent.

But when you create a legal system and then staff it with people who believe in the rule of law, it sometimes produces politically inconvenient outcomes like this one. The convening authority and the defendants reached a resolution. The secretary of defense didn’t like it, so he tried to change it. The defense and the prosecution argued about whether he could do so lawfully. And Judge McCall took seriously his obligation as a judge to ensure due process for the defendants, even to the point of protecting their legal rights from unlawful incursion by his ultimate boss. No matter that he holds the rank of colonel and Austin is a former four-star general now in charge of the entire military. No matter that these defendants are among the least sympathetic imaginable. The law is the law.