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.

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.

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In re Khalid Shaikh Mohammad, et al

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