JUDGE ANDREW NAPOLITANO

Here’s a quick test: When can an Army colonel overrule the Secretary of Defense? Last week it probably happened for the first time in modern history. The short answer is that even in the military, the Secretary of Defense cannot change the rules and procedures for criminal prosecutions and cannot tell military judges how to hear cases.

Here’s the background story.

For years the feds told us that Osama bin Laden masterminded 9/11. Later, after killing Bin Laden at his home in Pakistan in 2011, they decided that Khalid Sheikh Mohammed was the mastermind and would try him in a military court and seek the death penalty. Ultimately, he deliberately set in motion calculated events that resulted in the killing of nearly 3,000 Americans.

Let’s fast forward to a few weeks ago; We had learned that a plea agreement was signed through a contract between the retired general at the Pentagon, who oversees all Gitmo cases, the Gitmo defendants and their defense attorney, and Gitmo military prosecutors. . In exchange for pleading guilty, the deal stipulates that Muhammad and the others will be sentenced to life in prison at Gitmo, rather than face the death penalty at trial or serve their sentences in America’s hell in Florence, Colorado. Confession of crime will include a public and detailed account of the crime.

So far this is very simple. Although the trial judge has approved the terms of the agreement, under federal rules of criminal procedure, the agreement is not final until the judge hears the defendants confess to the crime under oath in a public courtroom and then accepts the agreement. defend with a written order.

That admission has not yet occurred because Secretary of Defense Lloyd Austin, who learned of the plea deal while traveling, removed the authority of Gen. Susan Escallier, who oversaw the prosecution, to make plea deals without his express approval.

The defense attorney then asked the judge in the case, Col. Matthew McCall, to enforce the agreement anyway, since it was a signed contract, and to schedule a plea hearing at which Muhammad and the others would likely fulfill their obligation to disclose the details of this matter. 23 year old case.

Military prosecutors, who opened plea negotiations two years ago because they knew they could not ethically defend President George W. Bush’s torture regime, followed Pentagon orders and asked Judge McCall to decline the plea.

Last week, the judge denied the government’s request and denied the Pentagon’s order and scheduled hearings at which Muhammad and other defendants would likely plead guilty under oath.

The judge’s decision is essentially unquestionable. Secretary of Defense Austin decided it was too little, too late when he revoked the authority of General Escallier, a retired military judge, to accept guilty pleas. Until then Sec. Austin removed General Escallier’s authority to approve criminal charges in all Gitmo cases; he had already approved these defenses. Therefore, once he signed the ratifications, he had full authority to approve them.

The prosecution now faces an ethical dilemma.

Defense negotiations were initiated by prosecutors. The current prosecutor team is the second prosecutor team. Full disclosure — I consulted with the first team of prosecutors on some civil liberties matters. After reviewing the work of its predecessors, the current team concluded that the case was unwinnable and posed a major risk to American jurisprudence and American troops stationed abroad.

The risk of jurisprudence is the almost impossible task of defending torture. Lawyers are prohibited from using evidence obtained under torture to prove a case, and judges are prohibited from allowing such evidence to be considered by juries. This is a fundamental legal principle that President Bush forgot, ignored, or did not know at all when he authorized torture in 2001. Mohammed was tortured for three years in foreign black sites and in Gitmo.

Because Judge McCall is the fourth judge in the case, he has not yet made a final decision on what evidence will come before the jury if there is a trial. To make his decision, Judge McCall will need to review more than 40,000 pages of documents and transcripts provided to his predecessors. President Bush also forgot, ignored, or never knew that military judges (unlike federal district court judges) rotate positions every four or five years.

If President Bush had not created the legal nightmare at Gitmo with his torture regime and painfully slow military caps, Muhammad and others would have been tried in federal court in New York City and acquitted, released, or convicted by now. and was executed or still sentenced to life imprisonment.

Instead, there is the anomaly of prosecutors asking a military appeals court once led by the same General Escallier to dismiss a criminal complaint that those same prosecutors had sought and prepared, thus prosecuting a case they had described to their superiors and to the public. It became clear that it would be impossible to win and dangerous to try.

Why would it be dangerous to judge Muhammad? Because when the world learns in a public courtroom what the US government did to itself in the torture chambers – all of which are criminal, unconstitutional, and constitute inexcusable war crimes with no statute of limitations for prosecution – it will be astonished; and many angry people will seek revenge on unsuspecting US troops abroad.

All Americans need to care about this. The feds are subject to the Constitution and the rule of law. They cannot escape or evade unpopular defendants or for political gain. If they could, then no one’s freedom would be safe.

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