Guantánamo plea: Twenty years in the making

The man accused of plotting the attacks of Sept. 11, 2001, and two of his accomplices have agreed to plead guilty to conspiracy and murder charges in exchange for a life sentence rather than a death-penalty trial at Guantánamo Bay, Cuba, prosecutors told The New York Times.

Prosecutors said the deal was meant to bring some “finality and justice” to the case, particularly for the families of nearly 3,000 people who were killed in the attacks in New York City, at the Pentagon and in a Pennsylvania field.

The defendants Khalid Shaikh Mohammed, Walid bin Attash and Mustafa al-Hawsawi reached the deal in talks with prosecutors across 27 months at Guantánamo and approved on Wednesday by a senior Pentagon official overseeing the war court.

The men have been in U.S. custody since 2003. But the case had become mired in more than a decade of pretrial proceedings that focused on the question of whether their torture in secret C.I.A. prisons had contaminated the evidence against them.

Word of the deal emerged in a letter from war court prosecutors to Sept. 11 family members.

“In exchange for the removal of the death penalty as a possible punishment, these three accused have agreed to plead guilty to all of the charged offenses, including the murder of the 2,976 people listed in the charge sheet,” said the letter, which was signed by Rear Adm. Aaron C. Rugh, the chief prosecutor for military commissions, and three lawyers on his team.

The letter said the men could submit their pleas in open court as early as next week.

The plea averted what was envisioned as an eventual 12- to 18-month trial, or, alternatively, the possibility of the military judge throwing out confessions that were key to the government’s case. Col. Matthew N. McCall, the judge, had been hearing testimony this week and had more hearings scheduled for later this year to decide that and other key pretrial issues.

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Since 2015, Fentanyl has killed more soldiers than combat

How many soldiers have died from fentanyl, a lethal synthetic opioid? Fentanyl abuse has hit the Army the hardest among military branches and caused a record number of fatal overdoses among soldiers in 2021, the last complete year of data available, according to new figures obtained by The Washington Post.

The emerging scope of drug abuse in the military has alarmed lawmakers, who in late May introduced a bill to compel the Pentagon to publicly release overdose data each year, as well improve treatment for personnel suffering from addiction. The proposed legislation comes as experts say the services have done a poor job tracking overdoses, which have increased among active duty troops in the last two years. And many families contend that preventive measures, including urinalysis tests and rehabilitation, fall short.

Sen. Edward J. Markey (D-Mass.) and five other lawmakers who introduced the bill pointed to rising overdose deaths at Fort Liberty, N.C., and other Army posts, warning that “hundreds of service members have lost their lives to overdose and thousands more nearly did.” Rep. Seth Moulton (D-Mass.), a veteran who signed onto the bill, called the overdoses across the entire military “an institutional failure and a threat to our national defense.”

The lack of clear data is further complicated by the emergence of fentanyl, which poses an especially acute threat because of its deadly potency and its tendency to be blended with other drugs or disguised as prescription pills.

The Army lost 127 soldiers to fentanyl between 2015 and 2022, according to casualty records obtained by The Post through the Freedom of Information Act. That’s more than double the number of Army personnel killed in combat in Afghanistan during that same period.

At least 27 soldiers died from fentanyl in 2021, the Army’s deadliest year yet. But in February, when asked by senators for statistics on fentanyl overdoses, Pentagon officials reported a number that was half of the figure contained in the records obtained by The Post. When asked about the discrepancy, Pentagon spokeswoman Jade Fulce blamed an accounting mistake.

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Charges dropped against only British soldier charged for Bloody Sunday killings

Northern Ireland’s Public Prosecution Service (PPS) announced that the prosecution of Soldier F, the only British soldier to be charged in connection with the Bloody Sunday killings of 1972, will be discontinued. It was also announced that planned proceedings against a second soldier, Soldier B, will not be commenced, reported Jurist.

The announcement comes after the PPS conducted a review of the two cases, commenced in the light of a recent court ruling that evidence relied upon in the prosecution of two other soldiers was inadmissible because of the circumstances in which it was obtained. Due to the similarities between the evidence across the three cases, the review concluded that there was no longer a reasonable prospect of its key evidence being admissible at trial. As such, the test for prosecution was not met and the proceedings were dropped.

The PPS had announced its intention to prosecute Soldier F on March 14, 2019, bringing charges for the murder of two men and attempted murder of five on January 30, 1972, a day now dubbed “Bloody Sunday.” On that day, 13 unarmed civil rights demonstrators were shot dead by British Army paratroopers while marching in protest of the British internment of suspected Irish nationalists. Soldier F was the only soldier to have been charged in connection to the events, with the PPS deciding not to pursue prosecution of 15 other British soldiers due to the insufficiency of evidence.

Separately, a decision to prosecute Soldier B was announced on April 15, 2019, for the murder of 15-year-old Daniel Hegarty on July 31, 1972, and the wounding with intent of his cousin Christopher Hegarty.

Director of Public Prosecutions Stephen Herron said of PPS’ decision to drop these prosecutions:

I recognise these decisions bring further pain to victims and bereaved families who have relentlessly sought justice for almost 50 years and have faced many set-backs. It is clear to see how these devastating events in 1972, in which the families involved lost an innocent loved one, caused an enduring pain which continues to weigh heavily.

The PPS has a duty to keep prosecution decisions under review and to take into account any change in circumstances as a case proceeds. The impact of this court ruling on these two cases was considered extremely carefully by my office with the assistance of advices from Senior Counsel. That led to the conclusion that a reasonable prospect of conviction no longer existed in proceedings against both Soldier B and Soldier F. In these circumstances, the prosecutions cannot proceed.

Ciaran Shiels, a lawyer representing the victims’ families, said that the families will be seeking “an immediate judicial review” of the decision not to prosecute Soldier F.

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Trump considers pardoning war criminals

President Donald Trump’s reported plans to pardon several U.S. servicemen accused or convicted of war crimes elicited bipartisan criticism in the Senate on Tuesday, reported the Huffington Post.

“I think it’s a terrible idea to pardon someone who is legitimately convicted of committing war crimes. It’s unthinkable,” Sen. Mitt Romney (R-Utah) told HuffPost when asked about the New York Times report.

According to the Times, the White House over the weekend requested the necessary paperwork to issue a pardon for a Navy SEAL accused of war crimes who was turned in by the men who served with him.

Special Warfare Operator Chief Edward “Eddie” Gallagher is charged with firing on civilians in Iraq in 2017 and fatally stabbing a wounded teenage ISIS fighter. He allegedly bragged about racking up civilian kills and threatened members of his SEAL team if they reported him. He has pleaded not guilty.

Others who are reportedly up for a pardon include a former Blackwater security contractor who was found guilty of shooting dozens of unarmed Iraqis and an Army Green Beret accused of killing an unarmed Afghan in 2010.

The Trump administration asked for pardon paperwork on the men by the Memorial Day weekend, according to the Times.

Sen. Joni Ernst (R-Iowa) said she “would have some issues” about the potential pardons when asked about the Times report.

“I just want to make sure we’re doing the right thing for servicemembers as well,” added Ernst, an Army National Guard combat veteran who served in Iraq.

Earlier this month, Trump issued a pardon for former Army 1st Lt. Michael Behenna, who drove an Iraqi prisoner into the desert in 2008, stripped him and fatally shot him. Behenna was convicted of unpremeditated murder and was already serving a reduced sentence when the president pardoned him.

Critics say that presidential pardons of accused war criminals can undermine the military’s ethical code against atrocities and threaten current U.S. servicemembers abroad who could face retaliation.

“Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us,” retired U.S. Army Gen. Martin Dempsey tweeted. Dempsey served as chairman of the Joint Chiefs of Staff under President Barack Obama.

Senate Democrats, meanwhile, accused Trump of abusing his pardon power.

“I don’t think presidential pardon powers and especially something as egregious as war crimes should be something done as a political ploy, and that seems like what he’s doing,” said Sen. Tammy Duckworth (D-Ill.), who also served in the Army during the Iraq War.

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Guest Column: Move military assault cases to civilian courts

Matthew T. Mangino, Times Guest Columnist
The Delaware County Daily Times
April 21, 2014
The U.S. Army recently endured an embarrassing and troubling public spectacle. The Army dropped sexual assault charges against Brig. Gen. Jeffrey Sinclair in exchange for his plea to less serious charges of misconduct.

He was spared prison and sentenced to a reprimand and a $20,000 fine. His plea ended the trial of the highest-ranking officer ever to face sexual assault charges.

The trial may have ended but the controversy will continue. Sinclair pleaded guilty to having improper relationships with three subordinate officers, including the female captain who accused him of assault. He also pleaded guilty to adultery, which is a crime in the military.

Defense attorney Richard Scheff told The Associated Press that Sinclair is admitting to his mistakes, but added that the general is pleading guilty to behavior that likely wouldn’t be criminal in the civilian world.

How can a military officer or enlisted person have “consensual” sex with a subordinate soldier? In Pennsylvania, Institutional Sexual Assault, 18 P.S. 3124.2 provides an employee or agent of the Department of Corrections or a county correctional authority, youth development center, state or county juvenile detention facility or school who engages in sexual intercourse with an inmate, resident or student is guilty of a felony of the third degree.

The inmate, resident or student cannot consent to sex with a guard, caretaker or teacher. Why? Just as in the military there is concern that consent is influenced by the real or perceived threat of consequences for failure to indulge in the sexual conduct.

In prison, the consequences might be a contrived misconduct and time in the “hole;” in a youth development center it might be loss of a home visit; in school, unwarranted discipline; in the military the loss of a promotion or worse.

Just this month a Cumberland Valley High School teacher, outside of Carlisle, was charged with institutional sexual assault for her alleged relationship with an 18-year-old student.

Although the victim is of the age to consent to sex, the 31-year-old teacher is charged with having sexual encounters with the student in her classroom.

The military’s unique hierarchy and strict adherence to discipline sow the seeds for abuse. Lawrence Korb, a defense official in the Reagan administration, and Anu Bhagwati, a former Marine Corps captain, wrote in a 2012 Baltimore Sun op-ed that military sexual assault “[s]urvivors are often punished after reporting, including being forced to work with their perpetrators; charged for ‘fraternization,’ ‘adultery’ or ‘conduct unbecoming’; demoted or denied promotions and awards; or discharged from service with a false mental health diagnosis.”

Criminal prosecutions of sexual assault cases are rare in the military and civil recourse is almost non-existent.

Korb and Bhagwati lamented the expansion of the U.S. Supreme Court’s decision in Feres v. United States, 340 US 135 (1950). In Feres, the court ruled that the United States is not liable under the Federal Tort Claims Act for injuries to members of the military that are “incident to service.”

The decision makes sense in terms of limiting the military’s liability for injuries while training or in combat. The management of the military would grind to a halt if soldiers could sue their commanding officers.

Over time the term “incident to service” became all-encompassing even to include sexual assault or rape. Korb and Bhagwati suggested, “Carving out an exception to the Feres doctrine in cases of sexual assault must happen…Rape should not be considered an inevitable consequence of serving one’s country.”

Sinclair’s conduct, and the manner in which this prosecution unraveled, reveal what appear to be fundamental flaws in the way sexual assaults are handled under the Uniform Code of Military Justice.

With unreported sexual assault on the rise in the military, and with men entrenched in leadership positions, lawmakers should consider removing sexual assault investigations and prosecutions out of the military system and into civilian courts.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010” is due out this summer. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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GateHouse: Army ill-suited to pursue sex-assault prosecutions

Matthew T. Mangino
GateHouse News Service
March 22, 2014
The U.S. Army announced it was dropping sexual-assault charges against Brig. Gen. Jeffrey Sinclair in exchange for his plea to less-serious charges of misconduct. The plea bargain would end the trial of the highest-ranking officer ever to face such charges and one of the most closely watched military trials in recent history.
The trial may end, but the controversy will continue. While he denied the assault, Sinclair admitted to having a long-standing affair with a soldier under his command, which under military law is considered an abuse of power.
Sinclair’s conduct is just one of a series of black eyes for the military and only begins to scratch the surface of the overall problem. A report from the Department of Defense’s Sexual Assault Prevention and Response Office listed 3,374 reported assaults in 2012 a 6 percent increase in reported assaults over the previous year. However, the reported assaults pale in comparison with the estimated unreported assaults. In 2012, the number of sexual assaults left unreported rose to an estimated 26,000.
Sinclair’s plea bargain has led advocacy groups to question whether the military is capable of fairly prosecuting such crimes. The plea bargain has also focused attention on a contentious and unusual battle in the U.S. Senate. Two Democrats, both who happen to be female, have pointed to the Sinclair case as the answer for the following question: “Should commanders decide whether prosecutors pursue charges in military court?”
The judge, Col. James Pohl, halted Sinclair’s trial, citing information that a commander had improperly influenced prosecutors, using “unlawful command influence” to press the case in order to appear tough on sexual assaults.
The claim was the result of a letter Capt. Cassie L. Fowler, the victim’s special counsel, sent to Lt. Gen. Joseph Anderson, commander at Ft. Bragg. The letter asked Anderson to reject a plea offer, “Allowing the accused to characterize this relationship as a consensual affair would only strengthen the arguments of those individuals that believe the prosecution of sexual assault should be taken away from the Army.”
The rationale behind unlawful command influence, according to the New York Times, is to prevent senior commanders from trying to influence military justice, ensuring that cases are prosecuted based on legal merit alone. Anderson asked prosecutors to reject any plea from Sinclair.
New York Sen. Kristen Gillibrand proposed legislation to take prosecution decisions out of the chain of command. The bill did not survive a filibuster and was defeated.
In a recent op-ed in the New York Daily News, Gillibrand wrote, "We will work harder than ever in the coming year to strengthen our military by taking sexual assaults and other major crimes out of the chain of command — so that no victim is compelled to turn to his or her boss to ask for justice," she wrote. "We need every case to move forward based solely on the evidence and judged solely on the merits, not political pressure or other nonlegal considerations."
Missouri Sen. Claire McCaskill disagreed. "As a former sex-crimes prosecutor, Claire knows how difficult these cases can be, and this case is obviously a complicated one," McCaskill spokeswoman Sarah Feldman told The National Journal. "But one of its lessons highlights what we already know — that commanders are often more aggressive than prosecutors in pursuing prosecutions."
"If this court-martial (Sinclair’s) had been handled by prosecutors alone, it would not have gone to trial," said McCaskill's office in a press release.
Gillibrand’s proposal, although lacking sufficient support, did not go far enough. With unreported sexual assault on the rise in the military, and with men entrenched in leadership positions, lawmakers should consider removing sexual-assault investigations and prosecutions out of the military system and into civilian courts.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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