Please Mr. SecDef, That's Not How It Works
Mr. Lloyd J. Austin III
Secretary of Defense
1000 Defense Pentagon
Washington, DC 20301-1000
?
Dear Mr. Secretary,
Well, that didn't last long. It took but a few days for you to step in and unwind years of work between the 9/11 Prosecution team, Defense teams, Military Court, and Convening Authority.
Perhaps your heart is pure and this is evidence of short term collateral damage control. The cost is modest; I and others like me seeking justice for the murderers of our family members suffer. Such a cost might garner a shrug of shoulders.
But, in the long term, you f*cked up, Mr. Secretary.
But no, Mr. Secretary. I will not live with it. The fight is rejoined; not against you but against a short term error and Time. In fact, with thoughtful consideration, you might help in this fight.
Though the Prosecution team asked for Victim Family Member input, and the Department of Defense asked, and the Victim Witness Assistance Program asked, and even the Defense teams asked, you chose not to cast a net to gather input from Victim Family Members.
So now, at the risk of being proactive and though you did not ask, I request your consideration. I ask you to think past the current election cycle. Think of the long term.
A) Please respect the application of Military rule of law and the Military Court process.
Though mindful you have vast and well-earned military experience, Mr. Secretary, please take a moment to reference more than the Military Commissions Act of 2009 noted in your press release in terms of intent, spirit, and interpretation of the 9/11 trial framework.
Though I am but a layperson, I understand in 2001 the U.S. military commission was selected as the trial mechanism for those responsible for the 9/11 attacks.[1] The Military Order of November 13, 2001 entitled “Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism” states “individuals subject to this order (of November 13, 2001) pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals.”[2]
In turn, section 4 of the November 13, 2001 Military Order states, “Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death” and further states “a full and fair trial, with the military commission sitting as the triers of both fact and law.[3]
Like it or not, two decades ago the Military Court was deemed the best legal construct, Mr. Secretary; a construct we must respect.
Section 4. b. states, “As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section.”[4]
The office – not you, the office of Secretary of Defense – empowers the Military Commission.
Through review of material supporting the Office of the Military Commissions, we understand, “Military commissions are a form of military tribunal convened to try individuals for unlawful conduct associated with war. Though sometimes controversial, they are rooted in U.S. law and in the international laws of war... Subsequent practice, legislation and U.S. Supreme Court precedents have shaped them. Today, a Convening Authority appointed by the U.S. Secretary of Defense convenes military commissions under the Military Commissions Act of 2009, passed by the U.S. Congress and signed by President Barack Obama on October 27, 2009.”[5]
Decision-making authority is bestowed to the Convening Authority by your office and backed by US and international law.
But you know all this.
I imagine you also know within the Office of Military Commissions, “The rules and procedures differ substantially from those used in courts-martial to try members of the U.S. armed forces. They include the right to be tried by a panel of at least three military officers before a presiding officer, the right to a copy of the charges in English and in a language the accused understands, the presumption of innocence and other rights commonly afforded in courts-martial and civilian courts”[6]
Within the Military Commission, the rules and rights are well articulated, as is the presumption of innocence until proven guilty. And that’s a big deal for both the Victim Family Member community as well as the five 9/11 wretches currently at risk of death due to age and submission to natural causes while incarcerated at GTMO.
Digging deeper, we may further note, “The?Convening Authority?is empowered to convene military commissions, refer charges to trial, negotiate pre-trial agreements (italics added by Morgan), and review records of trial. The Convening Authority also provides an accused an opportunity for clemency before taking action on the findings and sentence of all military commission cases.”[7]
Mr. Secretary, the Convening Authority has the power to negotiate pre-trial agreements.
Yet, there’s more.
The Convening Authority does not act alone. The Convening Authority is advised by an empowered and experienced legal advisor. Not a public relations firm; a legal expert.
As we continue to explore Military Commissions procedural details, we find interesting elements such as Rule 406 which stipulates, “… (a) In general. Before any charge may be referred for trial by a military commission, it shall be referred to the legal advisor of the convening authority for consideration and advice. (b) Contents. The advice of the legal advisor shall include a written and signed statement which sets forth that person’s: (1) Conclusion with respect to whether each specification alleges an offense under the M.C.A.; (2) Conclusion with respect to whether the allegation of each offense is warranted by the evidence indicated in the report of investigation (if there is such a report); (3) Conclusion with respect to whether a military commission would have jurisdiction over the accused and the offense; (4) Conclusion, after consultation with the Office of the Director of National Intelligence and appropriate intelligence agencies, with respect to whether trial of the charges would be harmful to national security; and (5) Recommendation of the action to be taken by the convening authority… The legal advisor is personally responsible for the pretrial advice and must make an independent and informed appraisal of the charges and evidence in order to render the advice”[8]
The Military Commission process is founded on sound due diligence and informed legal input.
Legal opinion weighs in on the side of Convening Authority rights and authority as well. With a bit of case law review, we find court opinion confirming the scope of Convening Authority responsibility includes the authority to enter into pretrial agreement.
We note 2020 United States v. Chandler “authorizes an accused and the convening authority to enter into a pretrial agreement, and the parties may condition the pretrial agreement on a promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or a confessional stipulation will be entered.”[9]
Mr. Secretary, please respect the rule of law as this process is battle-tested, first having gained traction in the U.S. during the Mexican-American War of the mid-19th century and having served our country well for over 150 years.[10]
Mr. Secretary, please respect the Military's ability to run a court.
Mr. Secretary, please respect the authority vested in the Military Court’s Convening Authority.
B) Please respect our Military's greatest asset; the decision-making abilities of commanders in the field.
Sometimes it’s just about trust. And respect. And staying the heck out of the way.
With decades of military and legal experience, the current Convening Authority, Brigadier General Escallier, is more than capable of making a decision. For the Military to function within the fog of war (be it physical or legal), the Convening Authority, just like any commander, must have the trust of those up the chain. Brigadier General Escallier and US military personnel should not have to worry about being second guessed.
Decisions are made, not unwound.
By contrast, please consider how the US Military?neutralized the Iraqi army in 100 hours via the application of innovative in-field decision-making. Those in the field were trusted to do their jobs.
By contrast, please consider how the US Military, without placing a boot on the battlefield, hobbled the Russian army back into the 1950s with rapid and innovative efforts in support of Ukraine (under your watch!). Advisors and strategists were trusted to do their jobs.
By contrast, please consider how earlier this year (again, with you practicing battle field decision-making respect), over 95% of Iran's 300+ airborne vehicles aimed at Israel were struck down because of the US Military’s ability to react and coordinate with multiple parties in real time.
Mr. Secretary, the US Military’s decision-making process is our greatest asset.
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Mr. Secretary, respect your leaders' decision-making abilities in the field.
Please, trust your team.
C) Please consider the cost of failure associated with intrusion into the court’s decision.
Assuming you do not wish the GTMO five to die of natural causes prior to trial conclusion thereby triggering the Military Court’s presumption of innocence (see Coffin v. United States 156 U.S. 432 1895)[11], your decision appears founded on the assumption of trial conclusion. It appears you assume trial completion with a court-generated guilty verdict and capital sentence.
Mr. Secretary, your assumption is unsound.
In fact, your assumption is folly as we have yet to reach trial after more than a decade of pre-trial hearings.
Please consider the cost of decision-making intrusion and failure on those left behind.
At the risk of sharing some personal information, with the collapse of the second tower, my father left behind his wife of 40 years, Patricia Morgan. Diagnosed with the return of her breast cancer in May of 2001, she was left to fight malignancy without the man she loved.
In the hours and days after the 9/11 attacks, my mother waited for her husband to return home.
Then, my mother waited for a body.
After a month, her husband was identified by a serial number on a titanium implant.
That which was returned required a closed casket.
Thereafter, my mother held on for nearly five years expecting justice. Succumbing to her illness, she died without witnessing the delivery of a verdict regarding the individuals responsible for the death of her husband.
My father’s sister, Pat Morgan, and his brother, Kevin Morgan, died before the delivery of a verdict regarding the individuals accused of killing their older brother.
Today, I stand as the oldest living member of my family. The World Bank’s life expectancy table suggests I will die within 15-20 years. Given my socially active teen years and a handful of concussions, I do not look upon a 15 year run with confidence. Shall I die without witnessing a verdict as well?
I suspect so, as any assumption of a timely trial is unsound, as the GTMO Military Commission’s 9/11 proceedings have remained in pre-trial proceedings for over a decade.
Mr. Secretary, we have yet to reach the actual trial.
Then, upon trial conclusion, we’ll face a lengthy appeals process. Given the current judicial pace of GTMO pretrial hearings, I anticipate the GTMO trial and appeal process to outlive me and many within the Victim Family Member community.
Our wound shall remain open.
And should I outwit Time and extend my years past 15 or so, we may confidently believe men born in Yemen, Kuwait, or Saudi Arabia during the years 1965 to 1978 shall succumb to natural causes before the conclusion of trial and appeal processes. If you doubt such an assumption, please see the World Health Organization’s life expectancy tables, Mr. Secretary.
Should the accused die prior to verdict, we Victim Family Members will again be left wanting, for as noted above, when the accused die prior to verdict, admitted murderers go to their graves with the presumption of innocence.
Time’s verdict of innocence shall then be delivered.
Time’s death sentence to the system of Military justice shall then be delivered.
Such an outcome shall represent a judicial failure of historic proportions.
Such an outcome is wholly unacceptable.
Such an outcome is wholly avoidable.
Mr. Secretary, I am mindful you have much larger fish to fry; Ukraine, the Middle East, and the Taiwanese Strait. With such a burden of responsibility, I respectfully ask you to please:
?
Respectfully,
?Glenn Morgan, USA
[2] Federal Register / Vol. 66, No. 222 / Friday, November 16, 2001 / Presidential Documents page 57833
[3] Federal Register / Vol. 66, No. 222 / Friday, November 16, 2001 / Presidential Documents page 57834
[4] Federal Register / Vol. 66, No. 222 / Friday, November 16, 2001 / Presidential Documents page 57834
[8] Manual of Military Commissions January 18, 2007, page 21-22
Original photo credit: Pittsburgh Post Gazette
I've helped early-stage founders raise tens of millions of dollars in pre-rev / low-rev startup capital by syndicating their deals.
2 个月Glenn, thanks for sharing! You should post stuff like this more often!
Product Management Executive
3 个月Thank you for sharing such a thoughtful and well researched letter. An important read.
I'm sorry for your and your family's continued anguish, Glenn.
I am glad you wrote this because I was having a hard time explaining to people who didn't know any better the real consequences of his decision to insert himself. Godspeed brother.
Glenn, I have been thinking about you since I read about the plea deal and was really surprised by the SecDef’s decision, but admittedly don’t understand all the issues. As ever, you have written eloquently and comprehensively about the state of play, and I am so moved by your humanity and logic. I hope there is a suitable response, my friend. In the meantime, Graham and I send our love, our respect and our continued hope for resolution and justice to you and all the tragically affected families.