In re Khalid Shaikh Mohammad, et al

1/8/2025

Update: Biden administration asks court to block plea deal for alleged mastermind of 9/11 attacks. Courthouse News Service, 7 January 2025, citing AP.

If you have been following events at Guantanamo regarding the pretrial agreements, the Court of Military Commission Review has provided their answer.

4 Comments

Nathan Freeburg

12/31/2024 12:16:43

In a nutshell, the PTAs are upheld because the RMC was not amended in parallel with the RCM in 2018. Correct result but I’m curious about the legislative history.

Tami a/k/a Princess Leia

1/8/2025 12:18:36

Even if the rule had been amended to allow withdrawal from a PTA before "substantial," as opposed to "any," performance of the promises, I think dropping out of motions practice and not cross-examining witnesses at motions counts as "substantial." Either way, a convening authority doesn't get to withdraw from the PTA.

Nathan Freeburg

1/9/2025 09:22:15

I’ve litigated substantial performance before. So far the military courts have seen it the other way. They see the rule change as significant.

Nathan Freeburg

1/8/2025 10:43:35

Government motion here:

https://www.documentcloud.org/documents/25481434-guantanamo/

They dispute that performance had begun...imho, it looks like they are really relying on a substantive performance analysis which is not the rule in play. Part of this are the quirks of military practice. Will be interesting to see how this plays out.

CAAFlog

In re Khalid Shaikh Mohammad, et al

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