Christian Whiton
In an order released on Friday night, Secretary of Defense Lloyd Austin canceled the Biden-Harris administration’s shameful plea deals with 9/11 terrorist masterminds that would have spared them the death penalty.
Secretary Austin, a former Army general before becoming secretary, reserved the power to reach any such deals to himself. Addressing the bureaucrat in charge of the failed prosecution, he wrote: “Effective immediately, I hereby withdraw your authority in the above-referenced case to enter into a pre-trial agreement and reserve such authority to myself.” He added: “I hereby withdraw from the three pre-trial agreements that you signed on July 31, 2024 in the above-referenced case.”
Bravo General.
I say “general” instead of “secretary” as a compliment. In discussing with a retired Navy captain friend whether Austin was forced to make the move as a fall guy for the White House or chose to do so himself, my friend speculated: “Austin woke up this morning and realized he is a United States Army general, and then did the right thing.”
The move has stopped, temporarily at least, a decision by the Biden-Harris administration to accept a plea deal with Khalid Sheikh Mohammed, the confessed architect of the 9/11 attacks on the United States, and two high-level accomplices. Instead of the execution the three men deserve, they would have received life sentences.
Such an act would have been moral degenerate and a symbol of a sick civilization that no longer has confidence in itself or a sense of justice. It would have broken faith with those Americans killed on 9/11 and the tens of thousands more who died or were maimed, physically and mentally, in the war the terrorists started on that day.
Implausibly, the White House disclaimed responsibility for the plea deal. A spokesman remarked: “The president and the White House played no role in this process.” That strikes me as an outright lie or subterfuge. At a minimum, the White House and National Security Council staff ushered along a process designed to produce that result. More likely, they called the shots while making it appear that others were in charge.
What’s worse: If the White House didn’t know about the sweetheart deal for KSM or if it did know?
CNN echoed the conventional wisdom that has paralyzed the tribunal process in the nearly 23 years since the 9/11 attacks: “Prosecutors in the case had been discussing the possibility of a plea deal for more than two years, which would have avoided a lengthy trial complicated by questions over the admissibility of evidence obtained during torture.”
What rubbish. Leave it to the collection of legal eagles at the Pentagon and elsewhere in Washington to fumble such a simple matter.
All that is necessary is a for a tribunal to confirm the terrorists’ status as major unlawful combatants and issue a death sentence. The three terrorists and their compatriots held at the U.S. base in Guantanamo Bay, Cuba, specifically targeted civilians in a mass terror attack and initiated an unprovoked war of aggression against the United States. These were obscene violations of the law of war. Considering these acts and that they wore no uniforms, they were and remain obvious unlawful combatants just as qualified to pay the ultimate price as the German and Japanese military officials put to death after World War II.
In his order, Austin referenced the Military Commissions Act of 2009. The law amended the Military Commissions Act of 2006 to address the then-liberal Supreme Court’s incorrect 5-4 decision in 2008 that purported to extend the civil rights of U.S. citizens to terrorist enemy combatants. These decisions along with a lack of leadership and determination are part of the reasons the architects of 9/11 have been cooling their heels in sunny Cuba for more than two decades. They will also ensure that the Biden-Harris administration ends with no final resolution.
If he is reelected, former President Donald Trump should take a different path, using better precedents.
Trump would again be the commander in chief of the armed forces and the supreme military commander charged with the responsibility of protecting and defending the United States. He does not need permission from any legal eagles to perform his duties and no mere law or mistaken decision by a court aggrandizing power not granted to it by the Constitution can abridge his constitutional authority.
President Franklin Roosevelt had it right when faced with how to handle German saboteurs caught by the United States in 1942 during World War II. Having shed their uniforms, the men were therefore spies and unlawful combatants. Roosevelt’s attorney general, Francis Biddle, fretted that the men should be tried as criminals and would only get a few years of imprisonment. Roosevelt’s written response: “I want one thing clearly understood, Francis. I won’t hand them over to any United States marshal armed with a writ of habeas corpus. Understand?”
The Supreme Court sided with Roosevelt. The saboteurs came ashore on June 12, 1942. They were caught, subjected to a tribunal, found guilty, and later executed on August 8, 1942 — a span of less than two months.
In fixing the broken tribunal process, there might be an instinct to turn to something like the Nuremberg trials that judged Nazi war criminals, eventually sentencing many to death after prolonged deliberation and no small amount of granstanding. A better model is the Philippine War Crimes Commission established by Gen. Douglas MacArthur, the Supreme Commander for Allied Powers and effective dictator of Japan after the war. While part of the International Military Tribunal for the Far East, the commission moved more expeditiously and with less pomp to execute some of the worst war criminals responsible for atrocities committed in the Philippines, then an American colony. Importantly, the Commission was responsible to MacArthur, who could modify judgments as necessary and to whom the military members of the Commission were accountable. There was no high-minded posturing about impartiality: the accused received due process, but their fate was sealed and justice was served.
To close this chapter in history, a reelected Trump should charge his Secretary of Defense with convening and concluding a tribunal for these three apex terrorists and others still held at Guantanamo within the first 100 days of his second term. The long-overdue process should end with a short drop from a long rope and the hangman finally rendering justice to the 9/11 terrorists.
Christian Whiton was a senior advisor in the Trump and George W. Bush administrations. This article was first published on Capitalist Notes on Substack.
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