Lawfare Daily: Gen. Baker on the 9/11 Guilty Pleas that Were… Then Weren’t

[Introduction]

General John Baker: I just don't understand why we are doing anything other than trying to bring these cases to as quick an end as possible, and in a way that would give the victims some ability to find out why and what happened.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, Executive Editor of Lawfare with General John Baker, former Chief Defense Counsel for the Guantanamo Military Commissions.

General John Baker: If we want to give the victims any sort of judicial finality, the only way they're going to get that in our lifetime is through a plea agreement.

Natalie Orpett: Today we're talking about the three guilty pleas that were announced last week in the so called 9/11 case. Pleas were announced on Wednesday in court down at Guantanamo. By Friday, Secretary of Defense Lloyd Austin had issued an order withdrawing from the deals. We talked about how we got here, why this may have happened, and what it portends for the future of this case and the military commissions more broadly.

[Main Podcast]

Okay, General Baker, so we are here to speak about some truly remarkable events that have unfolded over the last week. Those are relating to the guilty pleas, or as it turns out, attempts at making guilty pleas, of three of the five defendants in the so-called 9/11 cases in the Guantanamo military commissions.

And ironically, or perhaps not ironically, we had you on about two and a half years ago when news first broke that plea negotiations were underway, and talked to you then about what all of this was, what it meant, and what it looked like from the inside. So you are uniquely qualified and have a very unique perspective on all of this, having served as the chief defense counsel for the military commission system for, I believe it was almost seven years, quite a long tenure in that system.

And I want to just talk through what happened and get your views based on your experience on how it all worked. Obviously, we don't know much about the facts. But I think what's important here in my mind, or at least one of the things important here is to really get a sense of how all of this works, because I'm finding that in a lot of the public discussion right now, there is just a lot of misunderstanding about how the military commissions system works. And that leads to a lot of confusion about how all of this could have happened. So, to set the scene a little bit, I'll just remind people that what we are talking about is a very quick turn of events in which this past Wednesday, it was announced that three of the five defendants had pleaded guilty. On Thursday, there was submission of the plea deals themselves in court, it seems from public reporting. And on Friday evening, quite late, Secretary of Defense Lloyd Austin issued an order, in short, withdrawing from the three plea agreements. So talk to us about how that played out, starting with how do plea agreements come together?

General John Baker: What happened, as I understand things, what happened down at Guantanamo last week is that the parties reached a plea agreement. The way that process works is that the defendants reach a plea agreement with what's called the convening authorities. So typically, they'll negotiate that process with the prosecutors, but the person that signs off on the deal is the convening authority. You said that they had pled guilty last week. They actually hadn't pled guilty yet. They had agreed to plead guilty. So there's a plea colloquy that has to occur where the judge asks the accused a series of questions to ensure that they are in fact guilty.

So, explain how it is that the Secretary of Defense can come in and in my view, unlawfully undo a plea agreement. It's pretty hard to do but I'll try. I'll tell you what I think. Maybe the Secretary of Defense thought that he was doing is that the commissions by the, like the ultimate convening authority under the Military Commissions Act is the Secretary of Defense, and the Secretary of Defense can then delegate that convening authority to another official.

And unlike the federal system where I practice where you have really one person who's the U.S. attorney or the assistant U.S. attorneys that work for, that represent the United States, in the commission system and in the military justice system, the prosecutorial function is kind of split between the prosecutors and then the convening authority. So the convening authority is the one that makes the final prosecutorial decision on whether to charge a case and then whether to take a plea deal or not.

Natalie Orpett: So I think it's worth spending a minute just explaining to people who are not familiar with the military justice system some of what you were just describing there. So as you were saying, there is this oddity in the military justice system of the prosecutorial function being split between the convening authority and the prosecutors. The convening authority also is a thing that sort of doesn't exist or have an analog in the federal system. But how does it work from the perspective of how the prosecutors and the convening authority interact over the course of a plea negotiation process?

General John Baker: Generally, the plea negotiations occur between the defense counsel--this is, and frankly, this is more based on my experience in the military justice system. Generally, the plea negotiations occur between the defense counsel and the prosecutors, and once they agree on what the parameters of any sort of plea deal are, then that plea deal is presented to the convening authority, who then has to decide to agree or not agree with it. And, in general, the prosecutors know the convening authority, in most cases, if the prosecutors sign on with it, they generally sign off on it.

What's really interesting is that in the military justice system, so not the commission system, the military justice system, because the convening authority is really such an oddity in the law and doesn't have an analog outside, in the military justice system, Congress just required that the convening authority be a lawyer. So it's more like the civilian system where you have a, in fact, not just a lawyer, it has to be a prosecutor. In fact, Secretary Austin supported that change. And now in the commission system, Secretary Austin, who's not a lawyer, just overrode the decision of the lawyer convening authority that he picked.

Natalie Orpett: Yeah, and I think it's worth saying, too, for folks who are not familiar, that the convening authority is responsible for administering the entire military commissions system, right? So there's not a separate convening authority for every case, and there is not a convening authority who exercises operational oversight of prosecutors on a sort of day-to-day what's happening in the litigation sort of way. It's really quite a different role than, for example, what a U.S. attorney would be doing in a federal system. So I think the thing that is interesting here is that in some respects, as compared to the civilian system, there are almost like three parties to a plea agreement. And that is the defense, the prosecutors, with whom a lot of the negotiating is likely to happen, and then the convening authority who has to make the ultimate decision and is the only one who has the requisite authority to actually enter into the deal. Is that an accurate way of saying it?

General John Baker: Yes. Yeah. Yeah. So the, yeah, see, the convening authority almost has both a prosecutorial and a judicial role in the process. So yeah, that's a great, yeah, there are, there really are three parties. The prosecution is not technically a party, but they have a super important voice in the process.

Natalie Orpett: Right. And then there's another party, of course, not a party to the deal, but another important actor in all of this, which is the military judge, who, as you were describing, has a role in accepting the plea. And so here we have a situation in which the plea agreements were made and submitted, it seems, to the judge in the military commission in this case. And at that point, after the judge had already entered into the picture as an actor in this event, that is when Secretary Austin's order came in to withdraw from the pleas.

What role does a military judge have in the taking of a plea agreement?

General John Baker: So the military judge has to decide that the plea agreement is both legally okay and factually okay. So the judge reviews the agreement and makes sure that it doesn't violate the law. And then he has to go over the agreement with the accused to make sure that the accused understands it. And then the judge has to go through a colloquy with the accused to ensure that the accused is in fact guilty. And so he has to ask the accused a series of questions. Frankly, it happens, same thing happens in federal court, the federal courthouse down the street here in Charlotte. The judge goes through and ask the accused some questions. The judge also has to make sure that there's no disagreement, like that the parties are aligned in the plea agreement to make sure that there's no disagreement. And then at the end, the judge ultimately has the decision to define the agreement lawful and binding and then accepts the accused guilty.

Natalie Orpett: And just for the nonmilitary lawyers, accused is the same thing as a defendant in civilian speak. So let's talk about how you understood this turn of events and what you think is likely to happen now.

General John Baker: I have no idea what's likely to happen now, but as I understand the turn of events. Starting back, in the springtime of 2022, the parties began to negotiate plea agreements. And this is not the first time that the parties began to negotiate plea agreements. And, shortly after I began my tenure as the chief defender down there. And in 2016, the parties were actively engaged in plea agreement negotiations. And then the Secretary of Defense fired that convening authority that did that.

But in this version, 2022, the parties agree, begin negotiations. I don't know why it is that last week was a catalyst where they really finally signed the agreements, but they did, they signed an agreement. They presented the agreement in court. It's not it's on their docket, but it's not, they're not visible to us. I think that they're sealed. The judge, there's some discussion on the record about the judge having received the agreements.

So right now there are four parties to the 9/11 cases. Khalid Sheikh Mohammed, Walid Bin Attash, Mustafa al-Hawsawi. Those three signed the plea agreements and then Ammar al-Baluchi didn't. So the judge had three of the four defendants were going to be pleading guilty. He's in the middle of a, I think we're in year four of the litigation over the suppression of the 9/11 defendants, and he had a witness, he was in the middle of that suppression here.

Natalie Orpett: Let's pause for a second to just talk about what that suppression round of, many year round of motions is about. What are we trying to suppress here?

General John Baker: So the defendants have moved to suppress statements that they made to the FBI down at Guantanamo following several years of being tortured by the CIA and other entities.

So back in like 2016, the years all run together, but back in like 2016, a judge suppressed those statements. And then another judge came in and said, I'm undoing what that judge did. And then a different judge came in and set a briefing schedule. And then Judge McCall, the fourth judge involved in the suppressions, began to hear about, hear evidence on whether the statements made to the FBI in I think it was 2006 should be suppressed. And they've been litigating that for something like four years.

Natalie Orpett: And is it fair to say that the statements from 2006 would be a very important part of the prosecution's case if it is bringing these defendants to trial to try to prove their guilt?

General John Baker: Yes. In fact one of the prosecutors stated in court at some point that the statements made to the FBI are the most important pieces of evidence that the government has. And in a different case, in the Nashiri case, a judge who heard similar evidence has suppressed Mr. al-Nashiri's statements made under the same conditions, and that suppression is under appeal, is up on appeal. So this is a, this is a really big deal the suppression hearing.

So I assume the reason why Judge McCall kept going this last week was he had a defendant who had this really important legal issue. He'd been spending multiple years trying to rule on it and he had a witness that was present. And this is important to whether the plea agreements are binding or not. He essentially told the three defendants who had reached a plea agreement, hey, you can stay in the courtroom, but you can't ask any questions because you've agreed to not litigate any more motions.

Natalie Orpett: Which would have been part of the one of the terms of the deal that was submitted.

General John Baker: Right. that's exactly right. So in order to comply with the plea agreement that they'd reached the day before, they sat on their hands and didn't do anything.

Natalie Orpett: Okay, so I want to zoom way out because this, of course, is not the first incident of guilty pleas being taken in the military commission system. And you during your time there, I believe there were two guilty pleas that were completed. Can you talk a little bit about how those worked?

General John Baker: So there were two guilty pleas during my tenure. Mr. Kahn pled guilty and Mr. al-Darbi pled guilty. Actually, so Kahn pled guilty in like 2011 or 2012 or 20— long long time ago. But he was sentenced in 2020. So the way the— and then Mr. al-Darbi was sentenced, I think in 2019, and he pled guilty four or five years before.

Natalie Orpett: Khan was sentenced in 2021.

General John Baker: 21. Yeah, no, you know, there's a three year period of all of our lives where everything is just mushed together. So the way that those worked is that they very much like just happened last week. Prosecutors, defense counsel negotiated a deal, it went to the convening authority signed off on it, it went to a judge, and then the judge held this plea colloquy that we talked about, where the judge accepted the plea.

But then they had to hold a sentencing hearing. The sentencing hearing in the military commission and in the military justice system are essentially contested hearings where both sides present evidence in the commissions. A jury will come in. The jury will hear that evidence, the jury will issue a sentence, and then the judge imposes the sentence that the plea agreement agrees to. So the jury has no idea what the plea agreement is. The jury doesn't even know what the plea agreement says. They just do what they think is right, and then the plea agreement may be substantially less than what the than what the jury imposed.

Natalie Orpett: So what do you think is the significance of the fact that the sentencing proceedings are contested and that a jury hears this evidence in a way that is really much more involved than what, anything you would ever see in a civilian system?

General John Baker: Certainly in the context of these cases, the significance particularly of the Khan case is that you had a jury was presented the torture that was done to Mr. Khan. And the act, really the actions of our government. And when they rendered their verdict in the Kahn case, they wrote a letter to the convening authority to say, hey, it essentially said, we're disgusted by what has occurred in this case, we're disgusted by the actions of the government, in the torture of Mr. Khan, it's un-American, it's anti rule of law and it's not anything that we tolerate. And because of that, we recommend that you reduce Mr. Khan's sentence. And that jury verdict, it's not a coincidence that the plea negotiations in the 9/11 cases started really not long after the Kahn jury reached, issued their opinion.

Natalie Orpett: So what do you think was different about those two plea agreements that it didn't get to a point where the Secretary of Defense came in to decide to withdraw?

General John Baker: So both Kahn and al-Darbi were relatively minor players in the process. So when I was interviewed two years ago about the negotiations of this, one of the things that Ben talked about was a concern about what happens when the politicians hear about or get involved in plea agreements. And Mr. al-Darbi and Mr. Khan just are not KSM. So I think, I think that what's different is they weren't the planners of 9/11.

Natalie Orpett: So it just garnered less political interest.

General John Baker: Yeah, yeah. And there's, and they're also, they're, yeah, and there are also fewer victims in their cases. When you have, a case of the magnitude of 9/11 where there are almost 3,000 victims, there's just a lot less emotion involved in the process, I guess.

Natalie Orpett: I want to talk now about the role of guilty pleas in Guantanamo more broadly. There are a much, much smaller number of people at Guantanamo now than there ever have been in the past, but very, very few of them are actually in the military commission's system. Those who are have been involved, most of them, for quite a long time. And you testified before the Senate Judiciary Committee several years ago, I believe it was in 2021, and talked about what the role of plea agreements was in the commissions, and I think more broadly in the sort of story of Guantanamo. Can you talk a little bit about that?

General John Baker: So the plea agreements are the only way out of this process. If anybody wants any sort of finality to the process, the only way to get there is through a negotiated plea agreement. These cases have been going on since 2008. There have been, I think the number now is 10 guilty pleas. Of those 10 guilty pleas, I think only two are final.

And there are so many legal errors baked into the 9/11 cases in particular that I just cannot imagine an outcome of a contested trial that results in a death sentence that is affirmed on appeal. And so if we know that is the end state, I just don't understand why we are doing anything other than trying to bring these cases to as quick an end as possible, and in a way that would give the victims some ability to find out why and what happened. As has been reported, the 9/11 plea agreement required the defendants to answer questions from the families about why and what happened. That's never going to happen now if Secretary Austin's action is upheld.

Natalie Orpett: I think that goes to the significance of the contested sentencing proceedings.

General John Baker: Right.

Natalie Orpett: Because people may not be aware that once a guilty plea is entered into in the military commission system, that's not the end of the substantive discussion of what happened because so much can be discussed in sentencing proceedings. And you mentioned what we know about some of the terms of the plea agreement that the families of September 11 victims would be allowed to ask questions and the defendants would be required to answer them under the terms of the deal. The letter that the Department of Defense sent to 9/11 families also said that they could choose to have family members come to Guantanamo to testify about their experience with their loved one having been killed in 9/11 as part of the sentencing proceedings. And I think that's something that is an important fact as people are thinking about what these cases look like as they are moving toward an end.

General John Baker: There was a guilty plea in Hadi al-Iraqi's case at some point in the last 12 months and a sentencing hearing and family members traveled down to Guantanamo and were able to attend the hearing and provide victim impact statements to the judge. That's not going to happen in the 9/11 case until this contested trial that they want is over, which won't happen for many years. And just think about how many family members won't even be around. The actions of Secretary Austin, of Secretary Austin have, and I believe in his heart of hearts, he was trying to do what's right for the victims, but it has, it's just going to prolong the victims’ pain in this case.

Natalie Orpett: Yeah, and I think it's worth stating again as you did earlier that, just one of the issues right now that's still being litigated and has been for years is the question of this really key evidence that the prosecution has said it needs to be able to prove guilt at trial, so, and there are still a lot of questions about what could actually be used for a contested trial. What do you think are the other important things for people to understand when we say that trials are a long, long way off if they ever happen? Why is that true?

General John Baker: We don't even know if the Constitution applies in these cases. It's 2024, and we don't know the basic premise upon which these cases are tried. The suppression hearing, which has been going on for four years, isn't done. And then let's just say that the judge suppresses the case. The prosecution is going to appeal that decision, just like they've already done in the Nashiri case. And so that decision is going to have to go that, just that one question has to go to the court of military criminal review. And then it's going to go to the D.C. Circuit, no matter who, no matter what the court of military commissions review does. And that, that process is, I just said, and that's four years right there. Because, and I know that because we have the history of these cases to look at.

Plus, there's fading memories. There's the logistical problems that are --- you've been down there --- of trying these cases at Guantanamo Bay where, right now they, when they go down for a hearing, they fly a hundred people down. When they fly down for a contested trial, they're going to have to bring a heck of a lot more than that.

And then the defense teams, some defense counsel are going to get sick or retire. Prosecutors are going to get sick or retire. This is, the past is prologue. This is a never-ending cycle and the plea agreements end the cycle, just like the plea agreements end the cycle in 95 percent of the cases in courtrooms across the country.

Natalie Orpett: Did you feel when you testified in 2021 that there was openness to this idea that plea agreements would be the way to resolve these cases?

General John Baker: Yes, 100%. Because what was different about 2021, the hearing in 2021, there were eight witnesses that were called by the Senate Judiciary Committee that really, that spanned the political spectrum. And all eight witnesses agreed unanimously. The plea agreements were the only way out. I mean that the system had failed and that the only way to end the cases with any modicum of justice was through a negotiated plea agreement. And then the hearings ended. And then boom. They started the negotiation process. See, I really, I felt like the stage was set to finally end the farce that is Guantanamo.

Natalie Orpett: And what do you think changed that made such a reversal that there had been openness and then, as we saw last week, the door slammed shut?

General John Baker: I don't know if Secretary Austin was responding to pressure from other people. I don't know what changed. I actually, I don't know what changed. I just know it should not have changed. If we want to give the 9/11 families, because, do I want justice for the accused? Absolutely. Boy, when I was a chief defender, I really wanted justice for the accused.

But what's happened down at Guantanamo is so far from justice that it's never going to be achieved. So, the only people we really should think about are the victims in this case. And if we want to give the victims any sort of judicial finality, the only way they're going to get that in our lifetime is through a plea agreement. I was there for seven years. I saw things that just repeatedly demonstrated that the commission system can't and won't work. They had a chance in 2009 to take them to federal court and they didn't.

Natalie Orpett: The 9/11 defendants.

General John Baker: The 9/11 cases. And so yeah, the only way out, the only way to get any sort of resolution in this case is to plead these cases out. Otherwise, you and I will be having this conversation in 10 years about you know when are these cases going to get to trial?

Natalie Orpett: You mentioned seeing time and again examples of why the system just won't work. Are there any that really encapsulate it for you that you think would be helpful for people to understand?

General John Baker: I mean there have been repeated, continual intrusions into the attorney/client relationship. There have been microphones found in attorney/client meeting rooms. Attorney/client mail has been reviewed. The torture that was done to the accused has just frozen the commission's system because the torture has led to classified evidence, and so there's these secrets that government actors don't want people to know. The torture has to be litigated to determine if statements given under torture are admissible. That, that's been four years worth of litigation.

And then there's really super small things like, are there enough bathrooms around the courtrooms in Guantanamo? And the answer by the way, is no. And is the infrastructure there able to handle these cases? And it just isn't. What's also depressing about it is that every couple years we have the same conversation. So I'm good friends with Jeff Caldwell. Jeff Caldwell was the chief defense counsel in 2008, 9 or 10, something like that. Last week we traded texts again, and Jeff's like boy, and this is,  it's the same song. The Guantanamo system just doesn't work.

Natalie Orpett: Are there any actors that you think are really the main impediment to it working?

General John Baker: Yes, but I don't know who they are. And it sounds like a cop out, but when you have the chief prosecutor sign off on a plea agreement, when you have the managing trial counsel, Clay Trivett, who's been trying these cases since 2008, when he says, okay, this is the only way forward and you have a secretary of defense, from a Democratic administration, stop it. Five years ago, a secretary of defense for a Republican administration stopped it.

I honestly don't know who the puppet masters are. There was a period of time when I thought that it was, kind of the fear, the fear of action or politics is what's stopping it. I don't, but I've watched Clay Trivett in court for seven years. I watched Clay. He's an impressive attorney who cares very hard about what he does. When Clay Trivett says this is the way out, people should listen. And now, poor Clay Trivett, now he's got to lead the team that has to, and it just happened this morning, a deal that he negotiated. He has to say, oh, wait, we have to file the brief that says that the deal that I negotiated can be undone. I just can't imagine what it was, what it's like to be him.

And I really can't imagine the emotions that the victim family members have gone through over the last week and are going to continue to go through because I assume they thought, hey, when Secretary of Defense undoes it, hey, it's okay, we're just mighty fine, good to go. The judge this morning said, I don't want this to devolve into yet another one to two year distraction as we figure out what's going on with these plea agreements.

Natalie Orpett: What was it that he said he didn't want to devolve into a one to two year discussion?

General John Baker: Over determining whether the secretary of defense has the authority to undo the plea agreements that had been reached, that had been reached by the Director of the Office of Military Commissions.

Natalie Orpett: So what we know about the imminent future of the 9/11 case is that they won't be briefing toward getting to trial. They will be briefing about whether what just happened with guilty pleas was allowed to happen and whether the guilty pleas need to go forward.

General John Baker: That's exactly right. Yeah, that's exactly right. What a system.

Natalie Orpett: I think, unfortunately, for now, until the next time, years from now, when we talk about the same thing all over again, that is a great place to leave it.

General John Baker: Great.

Natalie Orpett: General Baker, thank you so much for joining us.

General John Baker: Hey, thanks. Yeah, thank you. And I appreciate the interest that Lawfare continues to put into the military commissions.

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