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Case number 25-1009.

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Inre, United States of America Petitioner.

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Ms.

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Patterson for the petitioner.

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Mr. Faraday for Respondents Khalid Sheikh Mohammed and Mustafa Al-Hosawi.

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Mr. Engel for Respondent Waleed Mohammed Saleh Mubarak Bin Adash.

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Good morning, counsel.

[00:00:20] Speaker 01:
Good morning.

[00:00:20] Speaker 01:
May it please the court, Melissa Patterson from the United States.

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At issue here is whether to give effect to the Secretary of Defense's determination

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the alleged mastermind of the 9-11 attacks and two alleged co-conspirators should face a trial at which the jury would have the discretion to enter death sentences.

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The judge presiding over the military commission here voided that determination, refusing to allow the secretary to withdraw from pretrial agreements that his subordinate convening authority had entered into two days earlier.

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That ruling was wrong.

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There are reasonable and very deeply felt disagreements about the best way forward in these prosecutions of extraordinary national significance.

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But the official to whom Congress entrusted that determination is the secretary.

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And he has decided that rather than allow respondents to take a plea deal, we should move forward to trial.

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This court should issue a writ of mandamus to prevent the military commission from accepting the guilty pleas

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under a deal from which the secretary has withdrawn, and to clear the way to move forward with a trial against the respondents.

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I'm happy to start with whatever issue would be most helpful to the court, but given that the reviewing military court, the US CMCR, has already concluded that one of the two grounds on which the military judge invalidated the secretary's withdrawal was clearly and indisputably incorrect, it may make sense to start with the remaining ground.

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And that's the temporal aspect, whether or not the secretary's withdrawal two days after the subordinate convening authority came two days too late.

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I'd like to start with adequacy of an alternative form of remedy.

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And the respondents say that under 10 US code section 950 G because

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the respondents have waived any appeal, then the government would have the ability to petition for review in this court after sentencing to challenge the validity of the final judgment.

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Why isn't that a correct way to read the statute?

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I think.

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affirmed or set aside by the USCMCR can be reviewed by this court.

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Now, let's just assume that they are right and that subsection C would give us the right to challenge a conviction under subsection C there.

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We would still face enormous risk that we could not undo the done plea deals and convictions at that point.

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I think it's notable that in their filings, they nowhere

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for swear a double jeopardy challenge.

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They point to a provision of the Military Commissions Act 949H and suggest that maybe, only maybe, statutory jeopardy would attach later, but they nowhere say that the usual civilian analog rule that double jeopardy attaches at the moment you enter a plea

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is not something that they'll argue.

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So I think that there's, even if we have some hypothetical or possible way to get to this court, it's very unclear that this court could actually at that point order the relief we seek, which is a trial.

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Can you identify any authority in which, because the relief that you would seek if you were to petition this court after sentencing would be to set aside

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the plea because you had a right to withdraw that was not granted.

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And so if we were to grant that relief at that time, what authority is there that double jeopardy would prevent a subsequent prosecution because, I mean,

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I don't know all the ins and outs of military law, and it's not clear from the briefing.

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But there are certain acts, at least in the civilian courts, where jeopardy attaches when you swear a jury.

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And so where would jeopardy attach in this context that couldn't be undone?

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That's an open question, Your Honor.

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But in the civilian context, jeopardy would attach.

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the moment that the pleas are accepted by the judge and this judge and this military commission is poised to accept their pleas.

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It is unclear we or this court could ever unwind it.

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If constitutional jeopardy attaches, we and this court would be powerless to retry them on these charges.

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And I don't understand how that works.

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I mean, in the civilian context,

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you have guilty pleas all the time and it doesn't happen frequently but it does happen from time to time that one or the other party reaches the agreement and are you telling me that in the civilian case if that happens the only thing that can

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that the prosecution on a breach would be precluded from seeking to try the case?

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I think that is often the case, Your Honor.

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I think there may be limited circumstances.

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Can you cite me a case in the authority where that's happened?

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I think the McIntosh and the Patterson cases and the briefs here say that.

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I can certainly follow up with more authority.

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I just want to step out.

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Can you clarify, what do you mean when you say you think that's the case?

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You think that that's the case that that happens?

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Or you think it's the case that double jeopardy bars the government from withdrawing after the defendant breaches a plea agreement?

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I just wanted to clarify what your response was.

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And I'm not sure I understand the question, so I'm worried I won't provide clarification.

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I think our point is a simple one, that there is a risk that jeopardy will attach, constitutional jeopardy will attach, and that we will not be able to, we or this court, will not be able to unwind these pleas once accepted.

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Ms.

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Anderson, why does constitutional jeopardy apply?

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I mean, the Fifth Amendment doesn't apply outside the territorial United States under isentrograph.

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So is constitutional jeopardy even at issue?

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It may or may not be, but we certainly will face challenges from the respondents that it does.

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As this court and your honor, I'm sure, is well aware, the exact bounds of which constitutional guarantees apply at Guantanamo Bay has been the subject of, let us say, frequent litigation in this court.

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I am not conceding the double jeopardy clause would apply, but I think it's notable that they have not said they won't raise that challenge.

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And I just want to take a step back

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point to cases like the adequacy about the adequacy of alternative avenues for relief in al-nashiri and mr mohammed's own successful petition for mandamus to this court in those cases there was no question that there was that the petitioner could get an appeal on the back end those cases were about judicial bias everyone agreed they had a clear appeal route

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And everyone agreed that this court would have the power to throw out their convictions at the back end if there had been bias by the judges.

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This court nonetheless said that was not an adequate alternative avenue for relief because it would have been very hard on back end review to suss out all the ways in which potential judicial bias might have tainted that proceeding.

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Here we have substantial doubt if we could even get to this court after convictions, and there will be substantial barriers or arguments that this court's hands are tied at that point.

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But I think that the Al-Nashiri argument is kind of

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apples and oranges.

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There wasn't adequate because we didn't think we would really be able to essentially adjudicate the claim.

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We wouldn't be able to assess whether the error is harmless or not because of all of the different ways that judicial bias could potentially manifest itself.

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Here, I don't think that you have an argument that we wouldn't be able to figure out whether

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government really should have been able to withdraw from this based on passage of time or occurrence of subsequent events, right?

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But I think there would be, there is an open question as to whether or not this court would be able to do anything about it.

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The relief we're seeking is the ability to put respondents on trials for crimes that at that point they already would have pleaded guilty to.

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Even apart from constitutional jeopardy, I think at that point

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they would raise claims that they were so prejudiced by having pleaded guilty to these crimes.

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that a fair trial at that point could not be conducted.

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So again, we think that this- Let me ask about that because, I'm sorry, is it okay?

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Defendants enter guilty pleas and then decide to appeal raising effective assistance or counsel or something like that.

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And if those, if that review were granted,

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Maybe I think this is what I thought.

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I wasn't sure you were answering to Judge Wilkins, and I'm sorry I interrupted a confusing question, but I want to clarify this is what you were answering to Judge Wilkins, and that is what happens in that situation.

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If we grant review it was ineffective assistance of counsel, so the plea agreement is vacated.

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Does the person walk, or does the government get to try them?

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I think if the person convicted is challenging and saying this trial was essentially a nullity,

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then yes, you can retry them.

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If it is the government appealing a conviction, I think that because it would be the government appealing, the respondents would still be able to throw up objections that because we had not managed to stop them from pleading guilty, because our convening authority had had to, under the terms of this agreement, enter a sentence,

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the convening authority has to take the action after the jury decides the sentence, that we would be barred thereafter.

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And again, the standard under mandamus is not any potential or hypothetical or speculative avenue for relief.

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It has to be an adequate avenue for relief.

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And if nothing else, I think at the ballpark on how long it will take to go through the sentencing proceedings under these agreements to get to a place where we have waiver, where we can

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try this untested method under 950D of attempting to appeal after a waiver.

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I think that the ballpark on that is about three years.

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We think the much more straightforward route is to stop the pleas from happening in the first place.

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Can you identify any statutory authority or the best statutory authority for the argument

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that you would be precluded from trying these detainees at a later point?

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Is there something in a statute, one or more statute, or one or more rule?

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I think there are questions under 10 USC 949H.

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And I don't have any cases for you about them.

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I don't know that it's ever been litigated about the circumstances in which jeopardy attaches under the statute.

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I can't tell you exactly how that will shake out because we haven't tried it yet.

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I think, again, the point here is that there are very... Was there an argument under 959H?

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I know you're talking about statutory, but that doesn't attach until it's become final after review has been fully completed.

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I think there are questions about how that applies, not when it's a finding after a trial by the Military Commission, but a guilty plea accepted by the judge.

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I don't want to disclaim, there may be an argument that we could make that statutory jeopardy does not attach until the finality of review.

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And then the further sort of asterisk of could we get further review under 950-G.

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The piling of asterisks upon asterisks here about this hypothetical route are what make this an inadequate alternative to the relief that we see.

[00:14:03] Speaker 02:
What case law can you point us to to support why we should have these doubts?

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Is it the Patterson and McIntosh cases?

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Is it some other cases?

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Yes, and the larger body of constitutional double jeopardy cases.

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And potentially, I don't see anything in these papers from the respondents saying that this route is definitely available.

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They say it may be available.

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They say, I think, likely available.

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And nothing in these papers suggests that they do not.

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Correct.

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But it is our burden to show that there is no adequate, not that there is no hypothetical or speculative or possible avenue for relief here.

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And so I think under cases like al-Nashiri and Enri Mohammed, the mere possibility that there could be back end review.

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And again, there was no question, there were none of these asterisks about whether or not this court would have the authority to undo those convictions in full.

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There are those asterisks here.

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If we were to write an opinion that were to say that we have construed these relevant statutes, 949H, 950G, and we conclude that there is an adequate alternative remedy because the government can seek review under that point.

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Isn't that going to be binding precedent on that issue when it comes up later?

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In this court, it may.

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Of course, that would not bind the Supreme Court.

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And under usual principles of constitutional avoidance, I think it would be somewhat extraordinary to reach out and decide the constitutional double jeopardy question in this case.

[00:16:00] Speaker 01:
We don't think anything about this case, and certainly not on the set of papers we have here.

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requires the court to decide whether or not the double jeopardy clause applies?

[00:16:10] Speaker 02:
Well, we have to decide whether we have jurisdiction.

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And that's our first obligation.

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So I don't see how constitutional avoidance can, if this is central to whether we have jurisdiction or not, how constitutional avoidance does any work.

[00:16:30] Speaker 01:
I apologize, Your Honor.

[00:16:31] Speaker 01:
I don't think there's any question about this court's jurisdiction, which is under 28 USC 1651 to issue a writ of mandamus.

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All that's necessary to trigger that authority, that jurisdiction is the pendency of a proceeding that

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could lead to this court's jurisdiction.

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So I think the question is whether or not, not a one of jurisdiction, but whether or not as a substantive matter, we have shown that the Bruce.

[00:16:56] Speaker 02:
So you don't think in this context the three elements of mandamus are jurisdictional the way that they are in every other mandamus case?

[00:17:07] Speaker 02:
Is that your argument?

[00:17:08] Speaker 01:
I think that they go to the, I think it is undoubted that this court has the authority to issue a writ in this proceeding.

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The question of whether or not the United States has met the substantive standards that make issuance of the writ appropriate, I don't think undermines this court's backdrop authority, backdrop jurisdiction, to issue it.

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So I don't think this court has to decide the constitutional asterisks, as I've been calling them, on the hypothetical route to relief that two, but not three, of respondents

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have sketched out as possible or likely in their papers.

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And I do, but I know I'm running short on time.

[00:17:51] Speaker 05:
Madison, can I, I'd like to ask you about some of the equities here.

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Even if we assume that the military, just assuming for a moment that the military judge erred on both legal grounds.

[00:18:04] Speaker 05:
So Secretary Austin here could have conditioned the convening authority's ability to enter into

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that took the death penalty off the table from the beginning, right, as part of the delegation?

[00:18:17] Speaker 01:
Yes, I think he absolutely could have placed limits on that.

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He could have placed limits.

[00:18:21] Speaker 05:
Yes.

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And at any point before the plea agreements were signed, he could have assumed the convening authority for himself.

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Yes.

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And so what is the, so I mean, mandamus is an extraordinary remedy.

[00:18:38] Speaker 05:
Here the executive branch,

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could have controlled the convening authority, could have supervised the convening authority, could have previously stepped into the shoes of the convening authority.

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And having not done any of that for several years while these negotiations were going on, these agreements were entered into.

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And now the government seeks from us the extraordinary writ.

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So explain why the writ is appropriate in these circumstances where you have a dispute like this, where the executive had every opportunity and every power to control the exercise of the convening authority before the agreements were entered into.

[00:19:16] Speaker 01:
I think the very arguments that respondents are raising here and the traction they got before the military judge about unlawful influence show why a prudent secretary might have wanted to let this process play out independently

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allowing the convening authority full and sole discretion to see where these plea negotiations landed.

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Of course, nobody knew if they were going to land anywhere.

[00:19:40] Speaker 05:
But if the administration and the secretary were never going to want a plea agreement that took the death penalty off the table, that could have been made clear at the outset or at any point in the process.

[00:19:53] Speaker 01:
I don't know if we know that that is that sort of top line, a deal taking the death penalty off the table.

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is the reason the secretary withdrew.

[00:20:02] Speaker 01:
I think that when presented with these particular agreements, with these particular terms, the secretary saw them and decided that these were not an appropriate resolution of these prosecutions of national significance.

[00:20:16] Speaker 07:
I don't know.

[00:20:18] Speaker 07:
Don't sign until I've looked at it.

[00:20:21] Speaker 07:
That wouldn't be unlawful influence.

[00:20:22] Speaker 07:
That would be, I'm reserving the ultimate decision as a superior convening authority to make the final decision on plea agreements, at least as to persons X, Y, and Z. I agree with you, Your Honor, that that would not be unlawful influence.

[00:20:38] Speaker 01:
But it is far from clear that the military judge in this case would agree with that.

[00:20:44] Speaker 07:
And I think that at minimum, you- That's kind of beside the point.

[00:20:47] Speaker 07:
The point here is whether the executive branch, as Judge Rao has said, could have fixed this itself quite easily.

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And this wasn't a surprise.

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They didn't see this coming or know what was going on or know with whom plea negotiations were underway.

[00:21:06] Speaker 07:
And then to say, I'm not going to do anything until it's all over and then

[00:21:13] Speaker 07:
I might pull the rug out from under everything and then put everyone else, all these courts in knots trying to figure out what to do next.

[00:21:22] Speaker 07:
This is an executive branch control within the executive branch problem.

[00:21:28] Speaker 07:
I don't know why it's a judicial branch problem.

[00:21:30] Speaker 01:
Your honor, there would have been knots had the secretary used his authority on the front end, just in terms of the arguments and potential invalidation of the sentences and the convictions that we're seeking.

[00:21:42] Speaker 07:
What would be argument?

[00:21:43] Speaker 07:
I mean, that's you just attorneys.

[00:21:45] Speaker 07:
They make arguments all the time, right?

[00:21:48] Speaker 07:
Unlawful influence goes to judicial authority by the convening authority, not prosecutorial authority by the convening authority.

[00:21:54] Speaker 07:
And so the fact that someone's going to argue something doesn't mean that the executive branch shouldn't do its own job.

[00:22:04] Speaker 01:
Your Honor, I disagree with the idea that a reasonable secretary could not think

[00:22:10] Speaker 01:
Let's see where this process goes.

[00:22:12] Speaker 01:
It's an independent process.

[00:22:13] Speaker 01:
Do I have the actual raw authority to pull it back?

[00:22:16] Speaker 01:
Yes.

[00:22:17] Speaker 01:
Will that create potential years of litigation over undue influence, which is a very capacious doctrine as it's understood in the military justice system?

[00:22:27] Speaker 01:
Also, yes.

[00:22:29] Speaker 01:
When the secretary was presented with the actual terms that had been reached, he acted promptly within two days.

[00:22:38] Speaker 02:
Secretary had another option, which would have been that because this is so sensitive, this is so important.

[00:22:50] Speaker 02:
I alone will take over this negotiation and

[00:22:59] Speaker 02:
Because you you I think the premise of your papers is that some of the power can be within the secretary and some of it can be within the convening of right.

[00:23:10] Speaker 01:
Correct.

[00:23:11] Speaker 02:
So the secretary that a very easily.

[00:23:15] Speaker 02:
dealt with this, if this was going to be potentially sensitive and just said, um, I'm undelegating the power to you, convening convening authority with respect to any potential pretrial agreements with these three detainees.

[00:23:32] Speaker 02:
And then there wouldn't be any problem at all, right?

[00:23:35] Speaker 01:
I think the problems would have been the years of litigation over whether or not that was interfering unlawfully with a convening authority, the very arguments.

[00:23:44] Speaker 07:
They're getting that either way.

[00:23:45] Speaker 07:
They're arguing it now, too.

[00:23:46] Speaker 01:
But when the secretary was allowing his subordinate convening authority to see where these negotiations went, he did not know that we would get this any other way.

[00:23:56] Speaker 01:
He did not know that there would necessarily be agreements.

[00:24:00] Speaker 01:
And he certainly did not know what the specific terms of the agreements would be.

[00:24:03] Speaker 07:
If anyone thinks it would be unlawful

[00:24:06] Speaker 07:
intervention at the outset to say, ask two persons X, Y, and Z, you have all the authority to plead, but here's the bottom line.

[00:24:16] Speaker 01:
I think there are many people, and I would ask the question to my friends on the other side, who think precisely that, that thinks that is unlawful and that that would taint any convictions here.

[00:24:26] Speaker 01:
Again, this is music to my ears in terms of what counts as unlawful influence and not, but that is not

[00:24:33] Speaker 01:
how the military justice system invariably applies to these persons.

[00:24:37] Speaker 05:
I mean, the government's argument for why the secretary could withdraw the convening authority's delegation is that the secretary is ultimately responsible for this under the Military Commissions Act, which, of course, the secretary is, that he has ultimate responsibility and supervision and control, and therefore could withdraw the authority.

[00:24:57] Speaker 05:
So if that's true, then I think the government has to have some account of the equities, how that responsibility and control was exercised in this case.

[00:25:10] Speaker 05:
So if we viewed what happened here as the executive sleeping on its responsibilities, what is the best equitable argument for granting the writ here?

[00:25:21] Speaker 01:
With a very significant caveat that I disagree with the with the characterization of sleeping on the equities or that it was unreasonable for the secretary to proceed as he did, putting that aside, I think reasonable, but you know he he had the power to do other take other actions earlier in the process as you have.

[00:25:41] Speaker 05:
You agree.

[00:25:42] Speaker 01:
I agree, but I don't think the fact that he didn't use his power earlier means that it was unlawful for him to do it when he did, nor that the equities don't support effectuating his determination when he got these plea agreements, when he saw them.

[00:25:57] Speaker 01:
He decided these agreements were not the best resolution of these cases.

[00:26:02] Speaker 01:
And he used his authority to countermand his subordinate's decision.

[00:26:07] Speaker 05:
So even assuming that the withdrawal of the convening authority was lawful, and that's a legal error by the military judge, I'm asking you for the best equitable case for why the writ should issue.

[00:26:19] Speaker 05:
Because even when there's an error, this court still has to determine that the writ is appropriate.

[00:26:26] Speaker 05:
Correct.

[00:26:26] Speaker 05:
And again, I'm not hearing the best argument for that.

[00:26:29] Speaker 01:
I think the sort of brass tacks argument about making sure that a secretary's determination and not his subordinates determination is the one that controls

[00:26:39] Speaker 01:
But let's assume that you agree with me on the legal point, that the Secretary's window to withdraw had not closed, that the Secretary had the authority.

[00:26:47] Speaker 01:
At that point, what you are saying is, even though the Secretary of Defense's determination about a matter of national significance has been countermanded by an unlawful application of Rule 705D4B of the Rules for Military Commission,

[00:27:02] Speaker 01:
I think it's appropriate to leave that incorrect decisions on the book rather than issuing the writ to effectuate the Secretary of Defense's determination on this momentous matter.

[00:27:14] Speaker 01:
I know that the standard is high.

[00:27:16] Speaker 01:
I know that this court has a lot of discretion about the appropriate circumstances.

[00:27:21] Speaker 01:
This is the case in which to do it.

[00:27:23] Speaker 01:
If you agree with us on the legal principles about the 705D4B argument,

[00:27:30] Speaker 01:
If you agree, as there seems to be consensus this morning, that there was no legal problem with pulling back the convening authority as to these pretrial agreements.

[00:27:38] Speaker 07:
To be clear, we're just asking questions.

[00:27:40] Speaker 07:
So don't assume anything.

[00:27:41] Speaker 01:
I apologize, Your Honor.

[00:27:42] Speaker 01:
But assuming some of the premises underline the questions we've heard this morning, if those things were true on the equitable factor that Judge Rao is asking about,

[00:27:52] Speaker 01:
Yes, this is the case to issue the writ.

[00:27:55] Speaker 01:
I know that I'm short on time.

[00:27:57] Speaker 01:
You've got plenty of time.

[00:27:59] Speaker 01:
Okay.

[00:27:59] Speaker 01:
Fair enough, Your Honor.

[00:28:01] Speaker 01:
There is one important matter that I want to make sure I say before I sit down and it relates to an order that was issued by the Military Commission minutes before we came into court.

[00:28:10] Speaker 01:
That is the court, the Military Commission has ordered the parties to be available as of 9 a.m.

[00:28:16] Speaker 01:
Thursday, this Thursday, January 30th.

[00:28:19] Speaker 01:
So that if this court denies mandamus relief, he can go ahead and start taking the pleas.

[00:28:25] Speaker 01:
For all the reasons we've discussed this morning, we are concerned that that will be an irremediable event.

[00:28:31] Speaker 01:
And so in the event that this court denies, the judge has made clear he's going to abide by this court's administrative stay.

[00:28:37] Speaker 01:
But if this court for any reason works it, then I relieve.

[00:28:42] Speaker 01:
We would respectfully request that this court leave in place the administrative stay it's issued for a modest period that would allow the United States and a small window to evaluate whether or not to seek further review.

[00:28:56] Speaker 01:
I think something like even something like 10 days would be appropriate.

[00:29:00] Speaker 01:
But what we are worried about is that the military commission is poised to spring into action

[00:29:07] Speaker 01:
It could be the second that this court denies relief.

[00:29:10] Speaker 01:
And we would like a little space to decide whether or not to seek further review.

[00:29:14] Speaker 05:
So on the two legal conclusions here, one, whether the secretary had authority to withdraw the delegation of convening authority.

[00:29:25] Speaker 05:
And then there's this question of whether the respondents had begun performance under the free trial agreements.

[00:29:32] Speaker 05:
If we were to conclude,

[00:29:36] Speaker 05:
that we agree with the government on the secretary's authority, that the secretary had authority to undertake the withdrawal.

[00:29:42] Speaker 05:
But we disagreed about the beginning of performance.

[00:29:46] Speaker 05:
Is there any mandamus relief that would be appropriate?

[00:29:50] Speaker 05:
Because they were alternative grounds by the military judge.

[00:29:53] Speaker 01:
I think we have to win on both of those grounds, Your Honor, in order to meet the clear and indisputable right to relief.

[00:29:59] Speaker 01:
Now, we think we're right on both of those grounds.

[00:30:02] Speaker 01:
But if we were to just agree on one,

[00:30:05] Speaker 01:
I hate to bet against myself, Your Honor, but I think we have to win both here.

[00:30:09] Speaker 07:
Sorry, before we go much deeper to that, I just have a few follow-up questions on where we've been in this.

[00:30:17] Speaker 07:
First of all, just somewhere back where we started a little bit ago, so there's no cases you're aware of where the government withdrew from a

[00:30:34] Speaker 07:
plea arrangement, post-plea.

[00:30:40] Speaker 01:
And then- And were not stopped by double jeopardy?

[00:30:43] Speaker 07:
And was able to retry, so yes, however you want to phrase it.

[00:30:47] Speaker 07:
I'm not- They still couldn't retry.

[00:30:49] Speaker 01:
I think we were told we couldn't retry.

[00:30:51] Speaker 01:
I think it's the McIntosh case where there had been a plea entered, and then the government said, wait a minute, there was a problem with the indictment here, and we want to retry under a correct indictment.

[00:31:02] Speaker 01:
And we were told no, because jeopardy attaches.

[00:31:04] Speaker 01:
That's what we're concerned about.

[00:31:06] Speaker 01:
I think the cases are, there are many other cases.

[00:31:10] Speaker 01:
I think this is an accepted precept that in many circumstances, once jeopardy attached because of the entry of a guilty plea,

[00:31:17] Speaker 01:
The government's hands are tied.

[00:31:18] Speaker 01:
That's the purpose of the double jeopardy clause.

[00:31:20] Speaker 07:
There was a government's problem that led to the effort to withdraw.

[00:31:27] Speaker 07:
And that's where I'm trying to understand if there's, if the government, I know we're building a lot of things that all depend on each other, but if there was no error in the secretary overruling this decision,

[00:31:43] Speaker 07:
So there was withdrawing from the plea agreements.

[00:31:48] Speaker 07:
And the unusual thing here would be at the time of the entry of the plea, the government would still be not on board with it.

[00:31:55] Speaker 07:
So it would be different than the McIntosh scenario.

[00:31:59] Speaker 07:
And if we find there was no flaw in the government process going up to that,

[00:32:03] Speaker 07:
Would you would that case have any applicability?

[00:32:05] Speaker 07:
I mean, it seemed to be a different issue there.

[00:32:08] Speaker 01:
I'm unaware of there being any such case.

[00:32:11] Speaker 01:
We can take a look and try to find one.

[00:32:12] Speaker 01:
But I want to point out that that case might not exist because it's very odd to hold the government to a plea agreement before the pleas have ever been entered.

[00:32:22] Speaker 01:
There are often fights after a plea has been entered.

[00:32:24] Speaker 01:
Of course, the central promise in a plea agreement is to plead guilty.

[00:32:28] Speaker 01:
And so

[00:32:30] Speaker 01:
I am unaware of any cases, they may be out there and I just don't know about them, where the government has realized that it should not and does not want to go forward on a plea agreement before the guilty plea and tries to pull back and is nonetheless made to go forward with it.

[00:32:48] Speaker 01:
And then we have a case about the double jeopardy consequences of that.

[00:32:52] Speaker 01:
I don't know that that case exists.

[00:32:54] Speaker 01:
But I think, again, where this fits into the analysis is the adequacy of alternative avenues to relief.

[00:33:01] Speaker 02:
But I think that the whole, where I think your argument seems to, in my mind, lose its force is that in McIntosh, the whole point was that the conviction was not vacated.

[00:33:18] Speaker 02:
There were not grounds

[00:33:20] Speaker 02:
present for the government to be able to prevail on a motion to withdraw.

[00:33:28] Speaker 02:
The government instead said, well, we think that there was a defect in the indictment, but the court said that wasn't grounds to vacate the conviction.

[00:33:44] Speaker 02:
So, I mean, standard double jeopardy law is that if the conviction is vacated, unless it's for sufficiency of the evidence, you can retry a defendant.

[00:33:57] Speaker 02:
That's the basic principle in civilian criminal cases.

[00:34:02] Speaker 02:
Would you not agree?

[00:34:05] Speaker 01:
I am not sure that I agree with all of that.

[00:34:08] Speaker 01:
I don't necessarily want to disagree.

[00:34:10] Speaker 02:
Do you agree with the last part?

[00:34:12] Speaker 02:
In the general rule,

[00:34:14] Speaker 02:
is that double jeopardy does not bar retrial or conviction that was vacated unless it was vacated due to insufficiency of the evidence.

[00:34:26] Speaker 01:
I'm going to be candid with the court that I do not know all of the specifics in which we can overcome a claim of double jeopardy after a conviction.

[00:34:34] Speaker 01:
What we have here are respondents who are not for swearing, bringing that type of challenge.

[00:34:40] Speaker 01:
We are sufficiently concerned, and we think the courts should be sufficiently concerned, that either constitutional double jeopardy would bind the court's hands or that there would be such claims of prejudice, even sort of apart from the strict constitutional regime, which may or may not apply to these respondents, that they could not be fairly tried again after their guilty pleas.

[00:35:03] Speaker 01:
We think that makes the avenue of relief that they have hypothesized inadequate.

[00:35:08] Speaker 07:
And I just want to note, and this may- If they were to agree and waive any potential double jeopardy claim, not even agree whether there is or not, they would agree that it would be waived, then the path would be clear.

[00:35:24] Speaker 07:
Is that correct for the government to have an adequate alternative avenue for relief?

[00:35:29] Speaker 01:
Not necessarily.

[00:35:30] Speaker 01:
I would defer to my friends on the other side about whether or not it would be effective assistance of counsel to force where from the lectern today, a constitutional challenge that has not been briefed or fully briefed or argued in this case.

[00:35:41] Speaker 07:
I do want to note that even if you thought even if I'm not asking you to speak for them to be crystal clear, I trust they will be able to speak for themselves just fine.

[00:35:48] Speaker 07:
I'm just mentally trying to figure out what is a lot of things have been discussed here.

[00:35:54] Speaker 07:
Is that double jeopardy constitutional double jeopardy prospect?

[00:36:01] Speaker 07:
The central bar to an adequate alternative avenue for relief.

[00:36:06] Speaker 01:
It is one of the bars.

[00:36:07] Speaker 01:
It is not the only bar.

[00:36:08] Speaker 01:
It is the non constitutional claims of prejudice that they would be able to launch at any attempt to retry them after their guilty pleas.

[00:36:15] Speaker 01:
It is the entire uncertainty that we could ever get to a court here after waiver.

[00:36:21] Speaker 01:
And it is, in terms of the adequacy, I just want to note that the timeline here, and I don't mean to stray into the equities, but I think they're relevant to the adequacy of the Avenue of Relief.

[00:36:30] Speaker 01:
The scenario we're talking about here is we go back, we are forced under duress to proceed through these pretrial agreements through years of sentencing proceedings, and then get back to this court and have us unwind it.

[00:36:47] Speaker 01:
And I know we're many years into this process,

[00:36:50] Speaker 01:
unwind it to the point we are right now.

[00:36:53] Speaker 01:
We do not think that that is an adequate alternative avenue for relief for what we're seeking here.

[00:36:59] Speaker 01:
I'm I'm happy to your honor.

[00:37:04] Speaker 01:
Go ahead.

[00:37:04] Speaker 01:
You want to finish a sentence?

[00:37:05] Speaker 01:
I didn't.

[00:37:06] Speaker 01:
I was going to ask if there were other areas that the court wanted

[00:37:08] Speaker 07:
I assume there are, and they're just being patient with me while I still try to wrap up these initial, believe it or not, these are the threshold questions.

[00:37:17] Speaker 07:
On this improper influence thing, just explain to me how it would be any more, any different in having to litigate issues of improper influence if the secretary did what happened here, where these arguments are being made of improper influence.

[00:37:35] Speaker 07:
versus a secretary upfront saying, convening authority, you're assigned, you have all this discretion, you have all this authority, one limit, you may not forego the death penalty, may not agree not to pursue the death penalty for a person's A, B, C, however long the list needs to be.

[00:37:53] Speaker 07:
What is the difference that you see between the improper influence?

[00:37:57] Speaker 07:
This is upfront and authorizing the convening authority.

[00:37:59] Speaker 01:
Because in the latter scenario, the secretary would not have known that it would ever come to this pass.

[00:38:05] Speaker 01:
that these negotiations would ever go forward, that there would ever be plea agreements, and that the specific terms of the plea agreements would be something he was not willing to have go out under his authority.

[00:38:18] Speaker 07:
Is there something else about this plea that made it untenable?

[00:38:22] Speaker 07:
I mean, it's either the death penalty or it's the, I don't want to plea with them at all.

[00:38:27] Speaker 07:
It's got to be something that upfront, the secretary, I assume it's not, it was missing a comma somewhere, right?

[00:38:36] Speaker 07:
There was something very big about this that caused this last hour

[00:38:42] Speaker 07:
change.

[00:38:43] Speaker 07:
I assume it was something substantial that could have been a foreseen result of plea negotiations.

[00:38:50] Speaker 07:
Or it could have been, tell me why it's improper influence to say, I am the ultimate convening authority when it comes to signing off on pleas for persons X, Y, and Z, full stop.

[00:39:01] Speaker 07:
You've said that's lawful for the secretary to do, that's fully within the secretary's lawful authority.

[00:39:07] Speaker 07:
They may argue on improper influence, but you've got that going either way.

[00:39:11] Speaker 07:
I'm not understanding why these arguments, but he was so worried about improper influence allegations have any purchase on because you're going to get it on either side.

[00:39:21] Speaker 01:
Your honor, I agree there's no unlawful influence here with the secretary pulling back the convening authority with the way he did.

[00:39:27] Speaker 01:
The other side emphatically disagrees.

[00:39:30] Speaker 01:
The military judge disagrees.

[00:39:31] Speaker 01:
I understand that.

[00:39:32] Speaker 07:
That's why your whole argument that he didn't want to do anything upfront because there'd be arguments about unlawful intervention don't make any sense to me because I would have thought upfront being straightforward, candid, here are the limits of the authority.

[00:39:48] Speaker 07:
Now go do what you can, if anything.

[00:39:52] Speaker 07:
would have been clearer to everybody and not, you know, much less likely to fall with any unlawful influence because it was an upfront term of negotiations that the secretary would have been well within his discretion to impose.

[00:40:08] Speaker 01:
Your Honor, the arguments we're facing here that this was unlawful as both a statutory matter and as of military justice principles are not simply the temporal aspects.

[00:40:17] Speaker 01:
It is that the secretary

[00:40:19] Speaker 01:
is simply barred from pulling back any part of the convening authority that he has handed over.

[00:40:25] Speaker 07:
That's my question.

[00:40:26] Speaker 07:
So why not just hand it over in the first place?

[00:40:30] Speaker 01:
Limited in one little respect.

[00:40:32] Speaker 07:
I have to sign off.

[00:40:33] Speaker 01:
Because then we would have been certain to face these types of arguments that, again, are gaining purchase before the military commission instead of it just being a possibility.

[00:40:42] Speaker 01:
And you asked about the terms of these agreements.

[00:40:44] Speaker 01:
I do not want to get into some of the specifics that are still under seal by virtue of the military commission's order.

[00:40:50] Speaker 01:
But this is not, these are not one line agreements.

[00:40:54] Speaker 01:
And, you know, the sentence ranges that remain under seal, I think are not sort of a foregone conclusion going in that the secretary would have thought, of course, these will be the words on the page.

[00:41:05] Speaker 01:
Now, to be clear, I have no personal knowledge about the secretary's personal knowledge.

[00:41:10] Speaker 01:
What we have in the record here is JA 14 through 23.

[00:41:14] Speaker 01:
It gets the transcript of a press conference shortly after the secretary withdrew.

[00:41:19] Speaker 01:
At that point, I think the press secretary indicated that the secretary was surprised by these agreements, did not know if they ever would be issued, did not know what the terms would be.

[00:41:31] Speaker 01:
So that's what's in the record about here and explains that the press secretary said he was attempting to allow that process to be independent.

[00:41:41] Speaker 01:
And I think that the fights we have here and our losses before the military judge show why until you knew that there was going to be an agreement, you would find unacceptable.

[00:41:53] Speaker 01:
You as a secretary might think I will let this process play out and see where we land without hoarding a substantial chunk.

[00:42:03] Speaker 01:
of all of the arguments, all of the protests, all of the possibilities that the judge will rule against us and find that we have in some way, no matter how in good faith we have proceeded, tainted these proceedings that have been ongoing since 2012.

[00:42:18] Speaker 02:
Seems like that's really rolling the dice because I think you concede that if

[00:42:30] Speaker 02:
the detainees begin performance on the agreement after it's signed by the convening authority, then the secretary loses his power to withdraw.

[00:42:49] Speaker 02:
Do you agree with that?

[00:42:51] Speaker 01:
I agree that if one of the respondents has begun performance of a promise contained in the agreement, the secretary would lose the window.

[00:42:59] Speaker 01:
But I also note that that rule contemplates that there is going to be a window.

[00:43:04] Speaker 01:
I don't know that the secretary would have thought

[00:43:07] Speaker 01:
Maybe they will plead guilty in these next two days.

[00:43:10] Speaker 01:
Maybe they will begin performance of some other promise within the next two days.

[00:43:13] Speaker 01:
I think if you just read the text of 705D4B, if somebody had advised the secretary, can you still withdraw?

[00:43:20] Speaker 01:
If an agreement comes out that you disagreement, can you withdraw?

[00:43:24] Speaker 01:
You look at this rule and you would think, yes, there is a window.

[00:43:27] Speaker 02:
Tell me what in the rule says that

[00:43:36] Speaker 02:
There is a window.

[00:43:39] Speaker 02:
After the convening authority signs, counter signs the agreement.

[00:43:47] Speaker 01:
This is in 705 D4B D4 controls withdrawal.

[00:43:52] Speaker 01:
D4A is by the accused.

[00:43:55] Speaker 01:
It sets out the time frame in which the accused can withdraw and it is it is generous.

[00:43:59] Speaker 01:
It is anytime D4B.

[00:44:02] Speaker 01:
sets out by the convening authority when the convening authority can withdraw.

[00:44:06] Speaker 01:
It is much less generous.

[00:44:09] Speaker 01:
He can withdraw from a pretrial agreement at any time.

[00:44:14] Speaker 01:
That's the first part.

[00:44:15] Speaker 01:
And then we come to the strictures.

[00:44:17] Speaker 01:
The first one and relevant one here being before the accused begins performance of promises contained in the agreement.

[00:44:24] Speaker 02:
So let's suppose in this case,

[00:44:31] Speaker 02:
the detainees sign, trial counsel convening authority signs, and then five minutes after that, all respondents file motions to withdraw or notices that they're withdrawing all of their motions.

[00:44:53] Speaker 02:
Would you agree that if those were the facts, the secretary would not have the authority to withdraw?

[00:45:02] Speaker 01:
Yes, if the agreement had said, upon signing by the convening authority, I promise to withdraw my motions, then yes, I think that would count as performance of a promise contained in the agreement.

[00:45:13] Speaker 01:
I'm adding the small caveat there because I think the wording in the relevant paragraphs here is a little different.

[00:45:18] Speaker 01:
I think it says, upon acceptance of the guilty plea by the military judge, I will withdraw.

[00:45:24] Speaker 01:
So there just might be a question there.

[00:45:26] Speaker 02:
That's another question that I have, is that,

[00:45:28] Speaker 02:
That waiver language is different in all three of these agreements.

[00:45:35] Speaker 02:
It's not the same.

[00:45:38] Speaker 02:
You don't appear to contend in your briefs that those differences are material, that we should look at.

[00:45:47] Speaker 02:
Muhammad's different than Binatash or Al-Husayn's.

[00:45:53] Speaker 02:
you just kind of treat them all as if they're really, there's no real material differences in.

[00:46:00] Speaker 02:
Am I correct about that?

[00:46:01] Speaker 02:
That's your position?

[00:46:03] Speaker 01:
That's correct because the promises to withdraw motions and there's no contention here that anyone withdrew a motion within the two days.

[00:46:12] Speaker 01:
The contention and the reason the military judge found this relevant was because they refrained from questioning a witness on August 1st.

[00:46:20] Speaker 02:
Okay, I understand that.

[00:46:24] Speaker 02:
I'm getting to the premise of this whole equities thing and this whole issue about why it was prudent for the secretary to wait and see how this plays out.

[00:46:37] Speaker 02:
Because that's taking a big gamble because once before the ink is even dry on the signature of the convening authority,

[00:46:53] Speaker 02:
these detainees could all take some action that would be explicit and certainly beginning performance and then the secretary's hands would be tied.

[00:47:11] Speaker 02:
And that doesn't seem to me to be the way to run the railroad.

[00:47:18] Speaker 01:
Your Honor, I think you're right that there may have been a way that these respondents could have began performing.

[00:47:23] Speaker 01:
And I think you're right that that means that the window that 705D4B contemplates would closed.

[00:47:29] Speaker 01:
What we're here today to say is that that did not happen.

[00:47:32] Speaker 01:
These respondents did not do anything.

[00:47:34] Speaker 02:
Well, all I'm saying, my point is that your whole, I think it just kind of undermines the force and plausibility of your argument about, well, the secretary was being prudent by waiting.

[00:47:47] Speaker 02:
I don't see how it would be prudent at all because events outside the secretary's control could happen that would completely take away his authority to withdraw and to undo this.

[00:48:05] Speaker 02:
So that's why I'm having trouble with your argument.

[00:48:09] Speaker 02:
Am I making myself clear?

[00:48:11] Speaker 01:
I think so, and I think I'm going to return to the answer I gave Judge Rao earlier, which is even if this is not the way that you as the Secretary of Defense with your manifold responsibilities would have made this particular decision in this case, if you would have said, I'm going to run the risk of these arguments of unlawful influence.

[00:48:29] Speaker 01:
And at the outset, I am saying I get to decide whether there are any plea deals here.

[00:48:34] Speaker 01:
Even if all of that is true, even if the secretary with minute attention to 705D4B thought, I might be running a risk here, but I'm willing to run it.

[00:48:44] Speaker 01:
Let's, I'm going to grant you all of that for purposes of the hypothetical.

[00:48:47] Speaker 01:
And I still think the writ should be issued because I think that the secretary of defense should be the one to make this decision unless there is a legal impediment to him doing so.

[00:48:58] Speaker 01:
The only legal impediment I think we're talking about in this exchange is 705D4B.

[00:49:05] Speaker 01:
And as a matter of the larger equities, we do not think that a clear and unequivocal exercise of the Secretary of Defense's judgment on this particular matter regarding the fate of the 9-11 prosecutions should be held up on a loosey goosey interpretation of 705D4B, which is what we think happened here.

[00:49:25] Speaker 05:
Harrison, can I ask you,

[00:49:27] Speaker 05:
The question about whether they began performance of a promise in the agreement, is that a factual question or a legal question or a mixed question of law and fact?

[00:49:39] Speaker 01:
I think it's a legal question, both the interpretation of the pretrial agreements and the interpretation of Rule 705 D4B.

[00:49:46] Speaker 05:
So the interpretation, I agree, interpretation of an agreement or of a regulation is a legal question.

[00:49:52] Speaker 05:
But what about the facts of whether they have begun?

[00:49:57] Speaker 01:
I think there's no question of sort of disputed question of historical facts.

[00:50:01] Speaker 01:
I think we can all see the transcripts and all see what happened here that the military judge pointed to as performance.

[00:50:08] Speaker 01:
There's no dispute about that.

[00:50:10] Speaker 01:
The question is, what is the meaning of 705 D4B as it applies to these undisputed facts?

[00:50:17] Speaker 01:
And I think in the Dean case,

[00:50:19] Speaker 01:
The court very clearly said these are legal questions reviewed de novo.

[00:50:23] Speaker 01:
So they're just purely legal questions.

[00:50:25] Speaker 01:
I think that's right, Your Honor.

[00:50:26] Speaker 02:
What about cases like US v Pollard and others that say that we're basically, whether a party has adhered to its promise and that's really bound up in facts and course of dealing and what happened

[00:50:49] Speaker 02:
that that's reviewed for clear error.

[00:50:51] Speaker 02:
And that's the way that the court reviewed that question in Pollard.

[00:50:57] Speaker 02:
And in general, you look at foreign book contract law and contract cases.

[00:51:05] Speaker 02:
They say that the scope of a promise

[00:51:11] Speaker 02:
where there could be some ambiguity about what the scope of the promise is in the contract and how it's worded.

[00:51:21] Speaker 02:
But that's a question of fact.

[00:51:25] Speaker 01:
Your honor, I'm not disputing that there can be factual disputes that underlying contract disputes.

[00:51:31] Speaker 01:
What I am saying here is that the fight between the parties, the basis on which the military judge ruled,

[00:51:38] Speaker 01:
is a dispute about the meaning of the terms, promises performed, whether or not they began performance of a promise contained in the agreement.

[00:51:46] Speaker 01:
So if you look at the USCMCR's analysis on this, we think there's just a clear and legally incorrect leap between saying things like they refrain from questioning a witness

[00:51:59] Speaker 01:
and therefore they began performance under paragraphs either 22 or 23.

[00:52:03] Speaker 02:
I think that's a legal error because- The military commission judge in the CMCR had to identify what was the promise.

[00:52:14] Speaker 02:
You can't answer the question of whether someone has begun performance on a promise until you know what the promise is.

[00:52:25] Speaker 02:
And so the question of what is the promise and was this encompassed within the promise is a question that they had to answer by looking at the agreement and the conduct of the parties, et cetera.

[00:52:41] Speaker 02:
And isn't that a factual question?

[00:52:45] Speaker 01:
No, Your Honor.

[00:52:46] Speaker 01:
And I think where the USMCR legally erred and the same for the military judge

[00:52:52] Speaker 01:
is by failing to identify anything that qualifies as a promise within the legal meaning of the word promise in 705D4B.

[00:53:02] Speaker 01:
There are no sort of factual findings about who said what when in these cases.

[00:53:07] Speaker 02:
I mean, the rule itself, all of the rules about pretrial agreements say that one of the promises

[00:53:18] Speaker 02:
that is allowed or permissible and that's part of a common pretrial agreement is entry into a stipulation of fact, right?

[00:53:28] Speaker 01:
Yes, but these facts, these stipulations were executed before the agreement even existed.

[00:53:33] Speaker 02:
Well, the agreement says that

[00:53:36] Speaker 02:
That is a promise to enter into them is one of the promises that these detainees are making.

[00:53:44] Speaker 02:
And if they reach that promise by refusing to enter into them, then they will be in breach of the agreement, right?

[00:53:52] Speaker 01:
Your honor, I think we're talking about paragraph six that says language, I agree to enter into these stipulations.

[00:53:59] Speaker 01:
I think we also have to look at the final two paragraphs of the agreements and the actual attachments to the agreements that make clear that what was being part of the offer and what preceded and then became part of the agreement itself was an executed stipulation.

[00:54:15] Speaker 02:
You're saying we have to look at the attachments to the agreements, you mean the stipulations themselves?

[00:54:20] Speaker 01:
Yes, which I do not believe are currently in the record.

[00:54:23] Speaker 02:
But that was going to be my question.

[00:54:25] Speaker 02:
If you're arguing that we have to base our argument on that and you didn't put it in the record, what are we supposed to do with that?

[00:54:33] Speaker 01:
Your honor, it is uncontested that these stipulations were executed beforehand.

[00:54:37] Speaker 01:
If this court would like to see the stipulations, we're happy to submit them.

[00:54:40] Speaker 01:
They are under seal.

[00:54:42] Speaker 01:
But we can file sealed copies with the court.

[00:54:45] Speaker 01:
But again, it's not disputed between the parties.

[00:54:48] Speaker 02:
Could the government also

[00:54:48] Speaker 02:
have to execute the stipulations?

[00:54:52] Speaker 01:
I don't think so, your honor.

[00:54:53] Speaker 01:
I think that these were their stipulations that they signed attached to their offer.

[00:54:58] Speaker 02:
I want you to get the answer to that question, not what you think.

[00:55:02] Speaker 02:
I will.

[00:55:03] Speaker 01:
Whether or not.

[00:55:03] Speaker 01:
So whether or not.

[00:55:05] Speaker 02:
There are cases like, you know, USB, I think it's Forrester or Pruner and Forrester.

[00:55:15] Speaker 02:
some military commission cases where they talk about stipulations of fact and that they are signed by both the accused and the government and usually a stipulation

[00:55:33] Speaker 02:
is signed by both parties.

[00:55:34] Speaker 02:
That's what it means that the parties stipulate.

[00:55:38] Speaker 02:
So something could be an admission where one party signs it, but usually a stipulation is signed by both parties.

[00:55:46] Speaker 01:
I will certainly submit those under seal to the court.

[00:55:49] Speaker 01:
I'm not sure it has any legal relevance here because whether one or both parties signed them, these were actions done before the agreement existed.

[00:55:57] Speaker 02:
It is clear that this agreement- Well, when did the agreement begin to exist?

[00:56:04] Speaker 02:
On July 31st.

[00:56:05] Speaker 02:
When the detainee signed?

[00:56:11] Speaker 02:
or when the government signed and the convening, I guess, the trial council and then the convening authority and signed last, right?

[00:56:20] Speaker 01:
Emphatically the latter, Your Honor.

[00:56:22] Speaker 01:
It was not an agreement until the convening authority signed.

[00:56:25] Speaker 01:
The King of Feening authority is the only one with the authority to enter into a pretrial agreement.

[00:56:30] Speaker 02:
Okay.

[00:56:30] Speaker 02:
So, so my point is, is that

[00:56:34] Speaker 02:
Your argument is that there is no agreement that takes effect until the convening authority sign.

[00:56:46] Speaker 02:
Well, if the convening authority also had to sign the stipulation for it to have any effect,

[00:56:53] Speaker 02:
then why isn't the right way to look at this that basically they began performance of the agreement commensurate with the entry of the agreement.

[00:57:11] Speaker 01:
Your honor, paragraph 62 explains that the convening authorities acceptance of this offer

[00:57:17] Speaker 01:
including attachments A through C. And remember, attachment A is the already signed stipulation.

[00:57:23] Speaker 01:
We'll transform this offer into an agreement binding upon him and the government.

[00:57:28] Speaker 01:
I've been informed by my colleagues that the stipulations of fact were signed by the accused, the accused counsel, and the trial counsel, not by the convening authority.

[00:57:38] Speaker 01:
And if you would like, I can still certainly file those under seal in this court.

[00:57:43] Speaker 01:
Please do.

[00:57:47] Speaker 01:
But I think our point here is that these acts, these signing of these stipulations,

[00:57:57] Speaker 01:
came before the agreement even existed.

[00:57:59] Speaker 01:
The agreement did not exist until July 31st when the convening authority signed.

[00:58:05] Speaker 01:
And we do not think that doing something before the agreement existed counts as beginning performance of a promise contained in the agreement.

[00:58:15] Speaker 01:
We think that is a straightforward misreading.

[00:58:18] Speaker 07:
Did they begin performance on July 31st once the agreement was signed by the convening authority?

[00:58:24] Speaker 01:
No, Your Honor, I don't think there were any forward looking promises regarding the stipulations that they were performing.

[00:58:30] Speaker 07:
That moment that becomes at the moment, the Convenient Authority of Science, it becomes an agreement and it becomes that signing becomes a performance.

[00:58:39] Speaker 01:
I don't think it becomes I think it be.

[00:58:40] Speaker 01:
I don't think it becomes the respondents performance, Your Honor.

[00:58:43] Speaker 01:
There's no forward looking promise in here about doing anything else with the stipulations they had already entered into.

[00:58:49] Speaker 01:
Now, of course, they have promised to do other things in the future.

[00:58:52] Speaker 01:
like plead guilty on the basis of those stipulations or when the government tries to introduce evidence based on those stipulations.

[00:59:00] Speaker 02:
I have a problem with this because I see other cases like this Forrester case, USV Forrester at 48 MJ1 and USV Pruner at 37 MJ573.

[00:59:21] Speaker 02:
But in Pruner, what happens is that there's an agreement that the accused will enter into a stipulation of fact, but they hadn't hashed out all the details of that stipulation prior to signing the agreement.

[00:59:45] Speaker 02:
And essentially, it appears that those kind of negotiations broke down.

[00:59:51] Speaker 02:
and the parties couldn't agree on the language and wording of that stipulation, and then the government sought to withdraw, and they were allowed to withdraw.

[01:00:06] Speaker 02:
The point being is that the stipulation of fact

[01:00:15] Speaker 02:
you could either hash out all of the wording and every comma and et cetera beforehand, or you can leave it until afterwards, but then it raises a significant question that if you can't agree to any of that, to all of that, then the whole thing is for naught.

[01:00:45] Speaker 02:
And here, it appears, and there's email correspondence, et cetera, that's in the record.

[01:00:52] Speaker 02:
I think the JA 458, there's some email correspondence where the government says, you know, at a minimum, the stipulations of fact, they're going to need to include A, B, and C, and that sort of thing.

[01:01:06] Speaker 02:
But it appears that this is an incident

[01:01:14] Speaker 02:
incidents where both parties, for whatever reason, thought that it was in their best interest to hash out all of the terms of the stipulation effect ahead of time, and they attached it to the agreement as an exhibit so that there'd be no question

[01:01:38] Speaker 02:
And then it's signed by the accused and the trial counsel at the time that the agreement is entered so that, you know, that's out of the way.

[01:01:50] Speaker 02:
When they did all of that to preclude there from being any issues in the future, why wouldn't it be appropriate to consider that to be beginning performance?

[01:02:04] Speaker 01:
Because we're not talking about beginning performance on the contract generally or anything implied in the contract.

[01:02:11] Speaker 01:
The language of 705D4B is quite specific.

[01:02:14] Speaker 01:
That it has to be beginning performance of a promise contained in the agreement.

[01:02:19] Speaker 02:
Well, a promise in the agreement is to enter into a stipulation.

[01:02:23] Speaker 01:
But they had already done that, Your Honor.

[01:02:25] Speaker 01:
The agreement was not yet formed.

[01:02:28] Speaker 02:
The language of the rule doesn't say

[01:02:35] Speaker 02:
begin performance of promises, you know, pursuant, I don't know, some other verb, it just says contained in the agreement.

[01:02:53] Speaker 02:
So if we're just going to follow the rule, if we say that contained within the agreement are the words that the accused will enter into a stipulation,

[01:03:06] Speaker 02:
Um, then they've done that, right?

[01:03:10] Speaker 01:
Your honor, I think that what we have to look for is a promise contained in the agreement, and we think promise is a promise to do something in the future as a matter of basic contract law.

[01:03:21] Speaker 01:
I want to point out that this idea that your performance can begin the second the agreement forms really would render nougatory rule 705 D for bees primary purpose of giving

[01:03:34] Speaker 01:
convening authority a window to withdraw and I want to note more over the purpose of this rule I think is that is that the purpose the rule the rule is written to protect the convening authority by giving them the window I think that's that's part of it your honor and of course performance candidate them what the window could be a nanosecond

[01:03:55] Speaker 01:
We agree that that if respondents take actions, it's it's not much protection, but that doesn't mean it's nonexistent.

[01:04:01] Speaker 01:
But I think one of the larger purposes, it's one that can't be acted upon.

[01:04:05] Speaker 07:
That's the same as as nonexistent.

[01:04:08] Speaker 07:
You know, if they had one second later said they had somebody on the phone and they said file.

[01:04:15] Speaker 07:
I don't know how you can read this statute as protecting a right that there's no reason whatsoever it can never ever be exercised.

[01:04:24] Speaker 01:
Your honor, there may be ways that respondents could behave to shorten our window.

[01:04:29] Speaker 07:
Then we don't write statutes.

[01:04:30] Speaker 07:
But I think one of- We write them to protect rights.

[01:04:33] Speaker 01:
I think one of the other purposes that this rule is designed to protect is the idea that even if you undo an agreement, there may be circumstances where performance on a promise contained actions taken after the agreement can't be undone just because you've undone the agreement.

[01:04:50] Speaker 01:
So if the agreement says something like you signed the agreement convening authority and then I will disclose to the authorities where the bodies are buried.

[01:04:59] Speaker 01:
If we end, he is only willing to disclose once we've signed.

[01:05:04] Speaker 01:
If an accused performs on that promise, even if the agreement, we want to withdraw from the agreement and undo the agreement, we may not be able to undo all of the promised performance that happens.

[01:05:16] Speaker 01:
Now, I think the fact that the things that respondents are pointing to here as performance, they cannot point to any prejudice that they will suffer.

[01:05:26] Speaker 01:
reflects the fact, there is not, and I'm not saying there is, I am saying that it helps illustrate why nothing that happened counts as performance, that there is none of the kind of prejudice that I think the rule is designed to help protect.

[01:05:42] Speaker 01:
It may have a prophylactic aspect.

[01:05:44] Speaker 07:
Any case that says performance depends upon the existence of prejudice?

[01:05:47] Speaker 01:
No, Your Honor, and I am not.

[01:05:50] Speaker 01:
I'm not trying to read in a reliance aspect.

[01:05:52] Speaker 01:
I'm trying to appeal to the purposes of this rule is, I think, twofold.

[01:05:57] Speaker 05:
Not the text of the rule, just... Well, if we're talking... Isn't the text of the rule more in your favor than...

[01:06:04] Speaker 01:
And this non existent prejudice in indeed your honor, I was going to say that if what we are talking about is the text of the role.

[01:06:11] Speaker 01:
I don't think they can point to any promise contained in this agreement that they began performance of and I don't think the military judge either can do that they point to what they consider promises that and to date the agreement.

[01:06:25] Speaker 01:
They point to things that happened after the agreement, but bear no relationship to the actual text of the agreement or a promise therein.

[01:06:32] Speaker 01:
And that's why we think that under the plain text of this rule, the military judge error will.

[01:06:42] Speaker 02:
The military judge.

[01:06:45] Speaker 02:
and trial counsel thought that the text of the agreement precluded them from participating in this hearing on this motion to suppress.

[01:06:58] Speaker 02:
They didn't pull that out of thin air.

[01:07:02] Speaker 02:
They pulled that out of the text of the agreement and the way that guilty pleas work.

[01:07:09] Speaker 02:
I mean, the Supreme Court has said

[01:07:13] Speaker 02:
that the effect of a guilty plea is that you waive any further right to do factual development or have any sort of evidentiary hearing on the claim.

[01:07:27] Speaker 02:
Even a claim that if the claim itself isn't waived, like a double jeopardy claim, your guilty plea precludes you from having an evidentiary hearing

[01:07:40] Speaker 02:
in support of your double jeopardy claim.

[01:07:43] Speaker 02:
That's just what guilty pleas do.

[01:07:45] Speaker 02:
So the military commission judge, like the trial counsel, read the waiver language

[01:07:55] Speaker 02:
as precluding them from, you know, contesting at all anything, any facts in the stipulation or participating any further in this sort of litigation.

[01:08:13] Speaker 02:
And so that gets back to this whole question of, well, what was the scope of the promises?

[01:08:21] Speaker 02:
And the military commission judge upheld by the CMCR ruled that that was within the scope of the promises.

[01:08:31] Speaker 02:
So why was that clear error?

[01:08:35] Speaker 01:
Your honor, I think there is a difference between conditions in a contract and whether or not you have breached them, and whether or not you can point to a promise to do something in the future, and whether or not you have begun to fulfill that promise.

[01:08:48] Speaker 01:
I take it that we're talking about the exchange, and I think that JA 143 through 146 of the Joint Appendix.

[01:08:57] Speaker 01:
I think it's clear that our prosecutors thought that, and this was, I think, a very sensible thing, that it did not make sense to have respondents continue questioning a witness where that would only be in furtherance of motions that they had, at that point, we were all in agreement they would not be filing in the future.

[01:09:16] Speaker 01:
I don't think that suggestion means that we somehow agreed you are performing a promise by not questioning this witness.

[01:09:25] Speaker 01:
And of course nothing in the language of paragraphs either 22 or 23 says anything about sort of refraining from taking preparatory steps that might in the future aid you in filing the motions that you agree in the future to waive.

[01:09:40] Speaker 01:
It only talks about in the future

[01:09:43] Speaker 01:
not making these motions, about refraining from making these motions.

[01:09:46] Speaker 01:
What happened at that hearing?

[01:09:48] Speaker 01:
And the judge was very clear that it could be undone.

[01:09:51] Speaker 01:
On JA 146, the judge says, OK, make sense to have the respondents who've taken the pretrial agreements simply observe, not participate.

[01:10:02] Speaker 01:
But if for some reason this deal goes sideways, and of course we weren't anywhere near actual guilty pleas, which I think was the jumping off point for your question,

[01:10:12] Speaker 01:
This is 146.

[01:10:13] Speaker 01:
I'm going to give that team a chance to question the witness, the witness on that day, if they can demonstrate that they actually have any additional matters to present.

[01:10:22] Speaker 01:
If for some reason I'm not able to accept a guilty plea from one of the accused.

[01:10:26] Speaker 01:
So I think just both as a matter of the text of the agreement, we don't have a promise.

[01:10:33] Speaker 01:
We don't have, as a matter of the text of performance, we don't have performance on anything that's in the agreement.

[01:10:40] Speaker 01:
So no matter how sensible that way of proceeding at that time was, it does not mean that they began to perform on a promise contained in this agreement.

[01:10:55] Speaker 02:
I need my picket fence painted at my home.

[01:11:02] Speaker 02:
And I talked to a painter and I said, I'd like for you to do it.

[01:11:07] Speaker 02:
And the painter says, okay, I'll see when my schedule is available.

[01:11:18] Speaker 02:
But we don't have any further conversation.

[01:11:22] Speaker 02:
And the painter has some jobs that fall through.

[01:11:27] Speaker 02:
So he starts painting my fence and gets halfway done.

[01:11:32] Speaker 02:
And I come home.

[01:11:34] Speaker 02:
And we then agree about the price.

[01:11:38] Speaker 02:
And I'm going to pay him $1,000 to paint the fence.

[01:11:44] Speaker 02:
And we sign the agreement at that point.

[01:11:49] Speaker 02:
At that moment,

[01:11:50] Speaker 02:
Has the painter begun performing the promises in the contract?

[01:11:55] Speaker 01:
No, because the contract had not existed until you signed it.

[01:12:00] Speaker 02:
So what do we call the work that he did up to that point, if it's not performing a promise in the beginning, performing a promise in the contract?

[01:12:14] Speaker 01:
I suppose you could call it performance and anticipation of a contract.

[01:12:17] Speaker 01:
I suppose you could call it pre-contract performance.

[01:12:20] Speaker 01:
I think you could call it a lot of things, but what I don't think you can call it is performance and a promise contained in an agreement that did not yet exist.

[01:12:27] Speaker 02:
So contained in the agreement.

[01:12:33] Speaker 02:
Well, the agreement says, paint the fence and I'll give you $1,000.

[01:12:38] Speaker 02:
So you're saying that

[01:12:45] Speaker 02:
that that should be read or that should be understood that the 50% of the fence that was painted is not really contained in the agreement?

[01:13:00] Speaker 01:
I think he hadn't begun performance.

[01:13:02] Speaker 01:
Maybe there's a promise to paint or finish painting the fence contained in the agreement.

[01:13:06] Speaker 01:
I don't think he had begun performance on the promise contained in the agreement.

[01:13:10] Speaker 01:
Because the agreement did not, everyone could walk away on your hypothetical with your

[01:13:15] Speaker 01:
your fence half painted.

[01:13:17] Speaker 01:
So I think what we're looking for under D4B is beginning performance of a promise contained in the agreement.

[01:13:23] Speaker 07:
And that happens simultaneously with the formation of the agreement.

[01:13:27] Speaker 07:
Is your position, is the government's position that contracts cannot be performed simultaneous with the agreement itself?

[01:13:36] Speaker 01:
I think you could probably structure a contract that way.

[01:13:40] Speaker 07:
Taylor Swift concert with a child who desperately wants to go in, looking for someone who's selling tickets, I walk up and I say, you have a Taylor Swift concert ticket.

[01:13:51] Speaker 07:
I'll give you $500 for it.

[01:13:53] Speaker 07:
And they go, yeah, I have one here.

[01:13:56] Speaker 07:
And we just exchanged at that moment.

[01:13:59] Speaker 07:
All right, the agreement and the exchange happened at the same time.

[01:14:04] Speaker 07:
That's a valid contract, yes?

[01:14:06] Speaker 07:
I think so, Your Honor.

[01:14:06] Speaker 07:
All for acceptance consideration.

[01:14:07] Speaker 07:
They all happened simultaneously.

[01:14:10] Speaker 07:
Did that person perform them under the contract?

[01:14:13] Speaker 07:
Absolutely.

[01:14:14] Speaker 07:
You could promise to give me this in exchange for this.

[01:14:16] Speaker 07:
It's just we did it.

[01:14:16] Speaker 07:
We handed it simultaneously.

[01:14:18] Speaker 07:
This is a case about simultaneity.

[01:14:20] Speaker 07:
This is a case in which the stipulation of fact was simultaneously.

[01:14:29] Speaker 07:
entered into with the formation of the agreement.

[01:14:31] Speaker 07:
If that is a basic contract principle that they can, performance and agreement can happen at the same moment, which you said is true, and I think has to be true, why isn't that what happened here?

[01:14:44] Speaker 01:
I think because in your Taylor Swift example, we don't have a rule that contemplates a forward-looking action in the contract you've posited with the ticket scalper.

[01:14:52] Speaker 01:
A contract is filled with promises.

[01:14:54] Speaker 07:
Where does it say forward as opposed to simultaneous fulfillment of that promise?

[01:14:59] Speaker 01:
I think that's the basic definition of a promise as set out in this court's decision in Choate, as set out in the restatement, is that you can certainly do things that precede the formation of a contract

[01:15:10] Speaker 07:
There can be performances simultaneous not I'm not talking about free Agreement performance.

[01:15:17] Speaker 07:
I am talking about the second the convening authorities Signature was inked on that piece of paper as you pointed out at that moment according to the ending paragraphs of this agreement it sprung into

[01:15:37] Speaker 07:
a fulfilled obligation.

[01:15:39] Speaker 07:
It was no obligation until the committee authority signed, and at that point it was, and it was locked in, locked down.

[01:15:45] Speaker 07:
If we understand contract law that way, how is this not performance of a promise within the agreement?

[01:15:58] Speaker 01:
Because I think Rule 705D4B contemplates a forward-looking promise, some action after.

[01:16:05] Speaker 01:
Recall that this is a rule

[01:16:07] Speaker 01:
designed to govern when either side can withdraw from the contract.

[01:16:12] Speaker 07:
If we are taking that view of what it means to be... If you want a window, we all have, you know, a seven-day trial period, you can write that into the contract.

[01:16:23] Speaker 07:
But there's nothing like that here.

[01:16:25] Speaker 07:
And I think the fact that there are conditions and terms for withdrawal on both sides show that it is not... There's no time window.

[01:16:33] Speaker 07:
There's no time limit

[01:16:36] Speaker 07:
on or timeframe in which withdrawal is allowed if, in fact, performance happens simultaneous with the creation of the agreement.

[01:16:44] Speaker 07:
The secretary should have written a different agreement.

[01:16:48] Speaker 01:
Your Honor, I think the secretary, or not the secretary, the convening authority accepted an agreement that had as a done deal stipulations attached to it as part of the agreement that was entered.

[01:17:01] Speaker 01:
Under Rule 7, however you can construct a contract hypothetical,

[01:17:06] Speaker 01:
where the only promise is immediately performed as in your ticket exchange.

[01:17:11] Speaker 01:
That is not what 705D4B says.

[01:17:14] Speaker 01:
It contemplates that there will be a promise contained in the agreement.

[01:17:18] Speaker 01:
And at some point after the agreement, and I'm not saying it's a defined time window, but that there will be a window.

[01:17:25] Speaker 07:
You don't like it simultaneous?

[01:17:27] Speaker 07:
Were they not continuing to perform?

[01:17:30] Speaker 07:
Having that stipulation of facts the second after, they were continuing to perform it.

[01:17:35] Speaker 07:
They were continuing it.

[01:17:36] Speaker 07:
They weren't withdrawing it.

[01:17:38] Speaker 07:
They weren't saying never mind.

[01:17:40] Speaker 07:
They were continuing to adhere to their stipulation of facts.

[01:17:43] Speaker 07:
That next moment and the next moment after that and every moment for the next 48 hours, they were

[01:17:49] Speaker 07:
adhering to, locked in, and agreeing to.

[01:17:52] Speaker 07:
They were engaged in the act of agreeing to that now binding stipulation of facts.

[01:17:57] Speaker 07:
They didn't do anything.

[01:17:59] Speaker 07:
They continued to stick to their agreed upon stipulation of facts.

[01:18:05] Speaker 01:
I think they were not breaching by not trying to disturb the stipulation they had already executed.

[01:18:10] Speaker 01:
I do not think that counts.

[01:18:13] Speaker 01:
They were continuing to stick with it.

[01:18:16] Speaker 07:
They don't understand how it can be simultaneous performance, and then it's kept in place.

[01:18:21] Speaker 07:
They could have, you said, they could have withdrawn.

[01:18:24] Speaker 07:
There's reasons they could have withdrawn, and they didn't.

[01:18:27] Speaker 07:
That wouldn't be a breach.

[01:18:29] Speaker 07:
They continued to adhere to having a stipulation of fact.

[01:18:34] Speaker 01:
Governor, the very next clause of 705D4B talks about another circumstance when the convening authority can withdraw, and that is upon the failure to fulfill

[01:18:46] Speaker 01:
a material condition or promise.

[01:18:49] Speaker 01:
I think this rule and the text of it contemplates that there is a difference between conditions and not breaching conditions like having that executed stipulation of fact on file as an attachment to the agreement and beginning to perform a promise beginning to actually do acts

[01:19:08] Speaker 01:
under the agreement after the agreement has been executed.

[01:19:11] Speaker 01:
Ms.

[01:19:11] Speaker 05:
Patterson, is there a difference between performance and performance of a promise in a contract?

[01:19:18] Speaker 01:
I think there could be.

[01:19:19] Speaker 01:
I think sort of maybe in a looser sense, you're performing by not breaching, but I don't think that counts as performance of a promise contained in the agreement.

[01:19:27] Speaker 02:
So let's suppose the agreement is signed

[01:19:37] Speaker 02:
by the convening authority and five minutes later, the convening authority says, I am going to withdraw from this agreement because the accused have failed to fulfill a material promise

[01:20:01] Speaker 02:
in that they didn't file their motions to withdraw their guilty, their motions yet.

[01:20:10] Speaker 02:
Do you think that would be a reasonable way to construe the rule that they could, based on that argument, say that they've failed to fulfill this promise?

[01:20:27] Speaker 01:
In your five minute hypothetical scenario, I think that the convening authority could withdraw for any reason because no performance would have begun.

[01:20:36] Speaker 01:
So I don't think you would need to look to that second clause in D4B.

[01:20:40] Speaker 02:
Don't change the hypothetical.

[01:20:42] Speaker 02:
That's the argument that they make.

[01:20:45] Speaker 01:
I'm sorry.

[01:20:46] Speaker 02:
Should we or the court accept that?

[01:20:49] Speaker 01:
To make sure I understand?

[01:20:50] Speaker 02:
That they fail to fulfill their promise to file a motion

[01:20:57] Speaker 02:
the withdrawal of their motions.

[01:21:01] Speaker 01:
I want to make sure I understand the hypothetical.

[01:21:04] Speaker 02:
And the detainees say, well, I mean, we didn't have any time yet.

[01:21:09] Speaker 02:
It's only been five minutes.

[01:21:11] Speaker 01:
I think if there were, so there's no question about the first clause, about performing promise.

[01:21:15] Speaker 01:
And we are relying solely on, just to make sure I understand the hypothetical, we're relying solely on failure to fulfill a material condition.

[01:21:24] Speaker 01:
The I think at that point the parties could dispute whether or not they had an opportunity and whether or not it was in fact a breach or a true failure to fulfill a condition for which there had been inadequate time to perform.

[01:21:38] Speaker 01:
So I think to the extent you're suggesting, we might have trouble invoking that second clause of D4B on this hypothetical.

[01:21:45] Speaker 01:
I think I agree.

[01:21:46] Speaker 02:
My question to you is, would the convening authority be within their rights to rely on this?

[01:21:54] Speaker 02:
And should, if that issue were before us today, should we say that, yes, the convening authority can withdraw because the accused failed to fulfill this material promise?

[01:22:09] Speaker 02:
It doesn't matter that they only have five minutes.

[01:22:13] Speaker 02:
They fail to fulfill it, and the rule is the rule.

[01:22:17] Speaker 01:
I think in this hypothetical, there is no first clause where the convening authority can draw it any time before approval.

[01:22:23] Speaker 02:
For whatever reason, the government isn't relying on that first clause.

[01:22:27] Speaker 02:
The government is relying on this clause.

[01:22:31] Speaker 02:
I'm trying to get you to tell me how we should construe that second clause.

[01:22:37] Speaker 01:
I don't know in all of the particulars how that clause should be construed.

[01:22:41] Speaker 01:
It might well be that we could not invoke it, that clause, to satisfy that hypothetical.

[01:22:48] Speaker 01:
I think our point about this second clause is that it contemplates that conditions and failing to fulfill them and promises can stand on different ground.

[01:22:58] Speaker 01:
And so we don't want the court to adopt a reading of the first clause about beginning performance of a promise contained in the agreement.

[01:23:07] Speaker 01:
so capaciously that it essentially collapses into the second clause, or such that it essentially renders nougatory this window.

[01:23:15] Speaker 01:
And I know I'm going to make Judge Millett mad by referring to a window.

[01:23:19] Speaker 01:
I am not saying it is a fixed window, but I think this rule contemplates that there is some opportunity after the formation of the agreement for the convening authority to change.

[01:23:30] Speaker 07:
How long does this rule contemplate?

[01:23:33] Speaker 01:
Until the beginning of performance, Your Honor.

[01:23:35] Speaker 07:
So I just want to make sure I understand your position that the rule locks in for the secretary something that could be less than a second.

[01:23:46] Speaker 07:
That's the most that's really an important thing.

[01:23:48] Speaker 01:
Yes.

[01:23:49] Speaker 01:
And it's if you are suggesting that the secretary.

[01:23:52] Speaker 07:
It's just that you're assuming that since there's a right to withdraw for performance, there must be some gap between signing and performance.

[01:24:03] Speaker 01:
I'm saying that we should not adopt a reading of the rule that would make that window zero in almost every case.

[01:24:10] Speaker 01:
There will always be conditions and contracts.

[01:24:12] Speaker 02:
It won't be in every case.

[01:24:13] Speaker 02:
It's just in those cases where, for whatever reason, I mean, the government got the benefit of its bargain in the sense that

[01:24:23] Speaker 02:
It didn't want this case to be like others where we go through all of this and we can't agree on the stipulation later.

[01:24:30] Speaker 02:
The government apparently insisted on reaching an agreement about the contents of the stipulation and doing that contemporaneously.

[01:24:41] Speaker 02:
So the government chose to operate in that fashion.

[01:24:46] Speaker 02:
The government could have said,

[01:24:54] Speaker 02:
don't sign the stipulation yet, or the government could have elected itself not to sign the stipulation to give it some time.

[01:25:05] Speaker 02:
But it, for whatever reason in its wisdom, decided to do it all together.

[01:25:11] Speaker 01:
I very much disagree that we have already gotten the benefit of the bargain we struck here.

[01:25:15] Speaker 01:
No one has pleaded guilty.

[01:25:17] Speaker 01:
And I want to point out that these stipulations will have no ongoing effect.

[01:25:21] Speaker 01:
We cannot use them

[01:25:22] Speaker 01:
or any purpose if we withdraw from this agreement.

[01:25:25] Speaker 07:
Does that include impeachment?

[01:25:26] Speaker 01:
Yes, it is under our rule of military commission 410, which like its civilian analog, precludes, contemplates that there will be stipulations, there will be admissions, both in the plea negotiations leading up to a guilty plea and sometimes even after a guilty plea.

[01:25:43] Speaker 01:
If for any reason that guilty plea is allowed to be withdrawn, if those plea negotiations go sideways, the rule of evidence bars the government from using any statements or stipulations made for any purpose.

[01:25:58] Speaker 01:
I don't know that it governs information derived from those statements.

[01:26:01] Speaker 01:
But recall, they had offered us that information even before the agreement was struck.

[01:26:08] Speaker 01:
They did that knowing that the convening authority might never accept these agreements.

[01:26:13] Speaker 01:
And you asked about impeachment, Your Honor.

[01:26:15] Speaker 01:
There is an exception in the rule for statements made under oath and in the record.

[01:26:20] Speaker 01:
These stipulations were not made under oath.

[01:26:23] Speaker 01:
So there is no possibility that we could use them for any purpose in the future under 410.

[01:26:28] Speaker 07:
And I just want to confirm one thing.

[01:26:29] Speaker 07:
So the government's official position on 750, well 750, is that they're simply with this right to withdraw window.

[01:26:38] Speaker 07:
705, Your Honor?

[01:26:40] Speaker 07:
Sorry.

[01:26:41] Speaker 07:
Sorry.

[01:26:41] Speaker 07:
I just want to make sure I have the roll right.

[01:26:43] Speaker 07:
I apologize.

[01:26:43] Speaker 07:
There's a lot of numbers in here.

[01:26:47] Speaker 07:
That there cannot then ever be a contract

[01:26:54] Speaker 07:
covered by that rule in which there is simultaneous agreement and performance.

[01:26:59] Speaker 01:
I don't know that I would go that far, Your Honor.

[01:27:00] Speaker 07:
We have gone that for you.

[01:27:01] Speaker 07:
So there has to be a window for withdrawal.

[01:27:03] Speaker 01:
I think what I am saying is some of the readings that the respondents have put forward of this rule read promise beginning performance of a promise contained in the agreement so capaciously based on asking about.

[01:27:19] Speaker 07:
Don't tell me about their readings.

[01:27:20] Speaker 07:
I want you to tell me about your reading, which is that 7054 B.

[01:27:27] Speaker 07:
has to leave some window, even if it's a fantastical one of a nanosecond.

[01:27:35] Speaker 01:
Has to leave a possible window for withdrawal.

[01:27:37] Speaker 01:
A possible window for withdrawal, yes.

[01:27:39] Speaker 01:
A possible window or a window?

[01:27:43] Speaker 01:
A possible window, Your Honor.

[01:27:44] Speaker 01:
We're not saying that there aren't ways that respondents can close this window.

[01:27:48] Speaker 01:
We're not saying that there aren't ways to construct a contract.

[01:27:52] Speaker 07:
Can you have a contract

[01:27:56] Speaker 07:
in which performance occurs simultaneously with agreement or the government's position is no, because under a simultaneous performance and agreement, there's no window for withdrawal by the government.

[01:28:12] Speaker 01:
I think you could construct a contract that said the second after, I promise that in the second after the convening authority signs, I will not make any motions.

[01:28:25] Speaker 07:
second after.

[01:28:26] Speaker 07:
I am saying at the same moment.

[01:28:28] Speaker 07:
It's recognized in contract law that you can have performance at the time of agreement.

[01:28:34] Speaker 07:
That is recognized everywhere else in the world.

[01:28:37] Speaker 07:
Okay, so I'm not giving you a second.

[01:28:40] Speaker 07:
I am telling you performance at the moment of agreement.

[01:28:44] Speaker 07:
And under that question,

[01:28:46] Speaker 07:
Under that scenario, that's forbidden by Rule 705 because there's not a second, there's not a nanosecond.

[01:28:54] Speaker 07:
There's no time withdrawal by the government.

[01:28:57] Speaker 07:
So those contracts are just not allowed.

[01:29:00] Speaker 07:
That's the government's position.

[01:29:01] Speaker 01:
Not exactly, Your Honor.

[01:29:02] Speaker 01:
Rule 705 subsection C governs what types of terms and conditions can be written into these contracts.

[01:29:12] Speaker 01:
I don't think

[01:29:14] Speaker 01:
there is anything forbidding a contract term that said something like, the convening authorities signing on this line will be construed as beginning of performing of a promise contained in this agreement.

[01:29:29] Speaker 01:
I think you could contract around D4B.

[01:29:32] Speaker 01:
I'm not sure it's forbidden by the rules, but what I am saying is you should not adopt a reading of the rule.

[01:29:39] Speaker 07:
Okay, so then why wouldn't we, so if we read this contract,

[01:29:43] Speaker 07:
and how it dealt with the stipulation of fact, something that was written and agreed upon before.

[01:29:49] Speaker 07:
And then you have a clause that says, at the moment this is signed, and by the way, this is a really important thing to perform, is to have the stipulation of fact.

[01:29:58] Speaker 07:
It's really, really important.

[01:29:59] Speaker 07:
It's in here many, many, many, many, many references to it throughout the agreement.

[01:30:04] Speaker 07:
At that moment, it springs into

[01:30:07] Speaker 07:
and agreed upon stipulation of fact as to which they're obligated to enter.

[01:30:11] Speaker 07:
If we read it as having been written to accomplish simultaneous agreement and performance, then there's no 7054 problem.

[01:30:25] Speaker 01:
I think that's right, Your Honor.

[01:30:26] Speaker 01:
I think our argument is very much that these agreements do not contain a forward-looking promise and that nothing happened in these two days by the response that count as performance, whether it's the moment signed or in the next 48 hours.

[01:30:41] Speaker 01:
I think our argument is not that you could not and I think it would

[01:30:45] Speaker 01:
B through explicit language contract around D for B that that is somehow forbidden by the rule.

[01:30:51] Speaker 01:
We are urging a rule that is not in construction of this rule that is not so capacious that it makes it essentially the default that by fulfilling the conditions or not breaching the conditions that went into the formation of the contract, you did things to induce us to enter into the agreement.

[01:31:08] Speaker 01:
If those

[01:31:09] Speaker 01:
count sort of on a very broad understanding of both what counts as performance and what counts as promise.

[01:31:16] Speaker 01:
We think you are more or less rendering 705D4B.

[01:31:19] Speaker 01:
We wouldn't be the contract would be.

[01:31:21] Speaker 07:
You just said it's fine for them to contract out of it.

[01:31:24] Speaker 01:
They put it on us.

[01:31:25] Speaker 01:
But I think the question is whether or not we had to contract into it.

[01:31:28] Speaker 01:
And I think the answer here is I think we contracted against the backdrop of 705D4B and the window.

[01:31:36] Speaker 01:
So I don't mean to make the question.

[01:31:37] Speaker 07:
No, I'm just telling you, if one were to read this, look at this contract language and say,

[01:31:43] Speaker 07:
As you pointed out, it says something magical happens at the moment it's signed, ultimately, by the convening authority.

[01:31:50] Speaker 07:
Stop it.

[01:31:50] Speaker 07:
The convening authority.

[01:31:52] Speaker 07:
I don't think what happens.

[01:31:52] Speaker 01:
That's what happens with the agreement.

[01:31:54] Speaker 01:
I think the magical thing that happened at that moment was that the agreement came into existence.

[01:32:00] Speaker 01:
I don't think that that meant.

[01:32:01] Speaker 01:
Which includes the attachment.

[01:32:02] Speaker 01:
But I think the attachment.

[01:32:03] Speaker 01:
The agreement included the attachment.

[01:32:05] Speaker 01:
It does.

[01:32:05] Speaker 01:
But the agreements, the attachments predated the existence.

[01:32:10] Speaker 01:
No.

[01:32:10] Speaker 01:
The agreement.

[01:32:12] Speaker 07:
They were just an offer before that.

[01:32:13] Speaker 07:
But at the moment it was signed, they changed from an offer from the defendants to agreement.

[01:32:22] Speaker 07:
That's what changed.

[01:32:24] Speaker 07:
And that's what it says changed.

[01:32:26] Speaker 07:
Before that, just an offer.

[01:32:28] Speaker 01:
It is an offer.

[01:32:29] Speaker 01:
But I think what we are doing in this hypothetical is reading in the language.

[01:32:33] Speaker 07:
No, I'm talking about this contract right now.

[01:32:34] Speaker 01:
Is reading into this contract.

[01:32:37] Speaker 01:
I will enter into stipulations.

[01:32:39] Speaker 01:
That's the language of this contract.

[01:32:42] Speaker 01:
They had already performed that promise beforehand.

[01:32:49] Speaker 07:
They had just entered into a proposed stipulation, because it didn't become a stipulation, as Judge Wilkins has said before, until the government agreed.

[01:32:56] Speaker 07:
Before that, it was just an offer of stipulation.

[01:32:58] Speaker 07:
But when the government signed off and said, yes, this agreement, that statement of facts attached as Addendum A,

[01:33:08] Speaker 07:
We're on board with that too.

[01:33:09] Speaker 07:
It was no longer an offer.

[01:33:13] Speaker 07:
It was the stipulation of facts.

[01:33:17] Speaker 07:
I think the stipulation was- The joint stipulation of facts.

[01:33:20] Speaker 01:
The stipulation existed before and was signed by both sides before- Was it before the Military Council signed it?

[01:33:26] Speaker 01:
Before the Convenient Authority signed it?

[01:33:27] Speaker 01:
As we have discussed earlier, as my colleagues informed me, it was signed by both sides before it was attached.

[01:33:33] Speaker 01:
It then became part of, it was, it was

[01:33:36] Speaker 01:
a done, a certainly revocable, and in ways that we could not use it if this did not result in a binding plea agreement, but it existed before the agreement ever did.

[01:33:48] Speaker 07:
It did not exist as a contracted stipulation of fact.

[01:33:51] Speaker 07:
What they agree in this agreement is to enter into that contracted stipulation of fact, contracted one, mutually contracted, and it became a mutually contracted

[01:34:01] Speaker 07:
It was not a mutually contracted statement of fact the second before the convening authority signed.

[01:34:06] Speaker 01:
I think it was, Your Honor.

[01:34:07] Speaker 01:
I think it did not have the same force or it is not part of the same agreement before the convening authority assigned.

[01:34:13] Speaker 02:
Help me understand the chronology as you understand it present.

[01:34:21] Speaker 02:
When was the stipulation of fact signed by the respondents?

[01:34:28] Speaker 01:
I don't know.

[01:34:28] Speaker 02:
All on the same day.

[01:34:30] Speaker 01:
I don't know, Your Honor.

[01:34:31] Speaker 01:
I believe it was several days before the convening authority assigned.

[01:34:34] Speaker 01:
I know they signed their agreements on July 29th and 30th.

[01:34:37] Speaker 01:
I don't know what date the attached stipulations were signed.

[01:34:40] Speaker 01:
We can probably find out.

[01:34:43] Speaker 02:
And what day did the either you're saying trial counsel signed the stipulations?

[01:34:53] Speaker 01:
Yes, and I don't know what day they signed.

[01:34:54] Speaker 01:
I don't know if it was the same.

[01:34:57] Speaker 02:
Are you contending that trial counsel signed the stipulations prior to the time that either party signed the pretrial agreement?

[01:35:12] Speaker 01:
I certainly, before the convening authority signed the pretrial agreement, I don't know about the chronology of dates of the trial counsel signing the stipulation and then the detainees signing the agreement offers.

[01:35:26] Speaker 01:
But we can find out.

[01:35:28] Speaker 01:
We will file them under seal in this court.

[01:35:30] Speaker 02:
So what does paragraph six mean when it says the accused understands that a failure to enter into a stipulation of fact is a breach of a material term of disagreement?

[01:35:45] Speaker 02:
That sounds like a promise.

[01:35:47] Speaker 01:
It does.

[01:35:48] Speaker 01:
I think you have to read it in light of the entire package here.

[01:35:51] Speaker 01:
And attachment A was not, I think if attachment A had been an unsigned stipulation, then you would read this language as a forward looking promise to sign it.

[01:36:00] Speaker 01:
But that is not what attachment A was.

[01:36:02] Speaker 01:
Attachment A was an already signed stipulation.

[01:36:06] Speaker 01:
So given that the entirety of the contract of the papers offered to the convening authority,

[01:36:12] Speaker 01:
was an executed stipulation, not an offer to execute a stipulation in the future, I do not think this constitutes a promise contained in the agreement.

[01:36:22] Speaker 05:
Ms.

[01:36:23] Speaker 05:
Patterson, who drafted the pretrial agreements?

[01:36:25] Speaker 05:
Were they drafted by the respondents or by the government?

[01:36:28] Speaker 01:
I don't know, Your Honor, and I don't know if it was a joint effort.

[01:36:31] Speaker 01:
I know that the parties had jointly discussed everything in these agreements over the course of a while, so it would not surprise me if both sides had input.

[01:36:38] Speaker 01:
But as a factual matter, I don't know.

[01:36:42] Speaker 07:
I want to ask you a question.

[01:36:43] Speaker 07:
I'm going to ask you carefully, because it refers to a paragraph that's under seal.

[01:36:47] Speaker 07:
And so if you can't answer, then you can go into closed session at the end of this argument to get the answer.

[01:36:56] Speaker 07:
If you look at paragraph 60, does that have relevance to our discussion here?

[01:37:06] Speaker 07:
In which we bring out C0 and start with a Muhammad agreement.

[01:37:18] Speaker 01:
I don't think it has, and I'm going to answer carefully for the same reason.

[01:37:23] Speaker 01:
I don't think it has any relevance here because I don't think there's any contention that they did any of the acts referred to by verbs in this paragraph.

[01:37:36] Speaker 01:
I apologize for being so obtuse.

[01:37:38] Speaker 01:
I think we can answer, we can have a discussion without getting into the details.

[01:37:41] Speaker 01:
I don't think they did any of the things discussed in this paragraph.

[01:37:48] Speaker 01:
And I think this was something that would happen later.

[01:37:52] Speaker 01:
And it would happen later.

[01:37:53] Speaker 01:
And there's not even an allegation it happened.

[01:37:55] Speaker 01:
Of course, this is not something respondents point to as a basis.

[01:37:59] Speaker 01:
And I think there's a reason why I think this had not happened yet.

[01:38:02] Speaker 07:
So when I ask whether it has any relevance, I'm wondering if that has relevance to the language in paragraph six.

[01:38:10] Speaker 01:
I think to put it on par with paragraph six,

[01:38:16] Speaker 01:
I think what we would have to have is an attachment that says, we've already done these things.

[01:38:24] Speaker 07:
I think our question's not being understood, so we may have to go into closed session briefly at the end of this argument.

[01:38:28] Speaker 07:
Certainly.

[01:38:28] Speaker 07:
We're here at the courts.

[01:38:29] Speaker 07:
Not communicating well with our direct language, and that's not your fault at all.

[01:38:34] Speaker 07:
And so now, back in the unsealed material, does the phrase enter into

[01:38:43] Speaker 07:
means have sort of specialized meaning under this contract that's different than proposing it and having it signed at the contract time.

[01:38:55] Speaker 01:
I think we understand it as signing it.

[01:38:57] Speaker 01:
As signing the stipulation.

[01:38:59] Speaker 01:
Signing the stipulation, yes.

[01:39:02] Speaker 02:
But you can't enter into a stipulation until it's signed by both parties.

[01:39:11] Speaker 02:
just like you can't enter into a contract until it's signed by the department.

[01:39:16] Speaker 01:
I'm not sure.

[01:39:17] Speaker 01:
I'm not entirely sure that you couldn't have a one-sided stipulation.

[01:39:20] Speaker 01:
If one party just wants to say, I admit these things, I think that could be, if it's the party doing the admitting, I think that could be a one-sided thing.

[01:39:27] Speaker 02:
But this was a stipulation that had signatories on both sides and all the negotiating

[01:39:36] Speaker 02:
history that we have in there is that the government was going to allow the respondents to unilaterally say what they were stipulating to the government had to agree.

[01:39:46] Speaker 01:
I think that's right, your honor.

[01:39:50] Speaker 02:
So, so how can one enter into a stipulation by just signing it?

[01:39:58] Speaker 02:
Um,

[01:40:01] Speaker 02:
Because unless and until the other party signs it, they haven't entered into the stipulation yet, right?

[01:40:13] Speaker 01:
I think you can have a unilateral stipulation.

[01:40:15] Speaker 01:
I think in government and even in civil litigation, we stipulate to things happening, saying we admit these things happened.

[01:40:22] Speaker 01:
Now, of course, we cannot hold.

[01:40:23] Speaker 01:
If you don't enter into.

[01:40:25] Speaker 01:
I'm asking about the phrase.

[01:40:27] Speaker 01:
And I think we could enter into a stipulation unilaterally.

[01:40:31] Speaker 01:
I don't think that that is language that could be used exclusively with a two-sided agreement.

[01:40:35] Speaker 01:
This was a two-sided agreement.

[01:40:37] Speaker 01:
Both sides signed it before it was presented to the convening authority.

[01:40:41] Speaker 07:
Is there any more stipulating to be done once the ink was dried on this agreement?

[01:40:47] Speaker 07:
I don't think so.

[01:40:48] Speaker 01:
No, your honor.

[01:40:49] Speaker 01:
Okay.

[01:40:49] Speaker 07:
I think the I think the condition in the contract was you don't pull back in some forward looking aspect to it because there's language in here that says failure enter into it will be a material breach and that doesn't make much sense.

[01:41:04] Speaker 07:
If it was never a promise, it was something that was completed as you would say before or as one might say at the same time as

[01:41:12] Speaker 07:
the agreement was concluded, why have language about a material breach if it wasn't going, if it came into existence upon the signing of the agreement?

[01:41:20] Speaker 07:
There's no window in which a material breach could occur.

[01:41:23] Speaker 01:
And why have an attachment that already has a pre... I would like to answer my question before you ask me a question.

[01:41:30] Speaker 01:
My answer is that you have to read that language against the contract as a whole.

[01:41:36] Speaker 01:
And the contract included a stipulation that had already been entered into.

[01:41:41] Speaker 07:
I don't even understand that answer.

[01:41:43] Speaker 07:
Given that this was going to be done and dusted at the time the convening authority signed, how could there ever then have been a material breach by failing to enter into the stipulation of facts?

[01:42:02] Speaker 07:
How could that ever happen at a later stage?

[01:42:04] Speaker 01:
I think if they had pulled back from the stipulation, that would be fairly described as failing to enter into or failing to abide by their entry into the stipulation of fact.

[01:42:16] Speaker 01:
I understand the court's concerns under paragraph 6.

[01:42:20] Speaker 07:
Not withdrawing would be abiding by their entry into the stipulation of facts.

[01:42:24] Speaker 07:
And then trying to get out of it would be failing to abide by their entry in the stipulation of facts.

[01:42:31] Speaker 01:
I think the stipulation of facts were a material condition that they continue that they abided by finished at the time this agreement was signed that this was not a promise to do something in the future and that the language of paragraph six that we've been focusing on agrees to enter into the stipulation of fact.

[01:42:48] Speaker 01:
has to be read against the contract as a whole.

[01:42:50] Speaker 07:
Do they not have to enter it again in front of the military judge or not?

[01:42:55] Speaker 07:
Are these proceedings not like civilian criminal courts where there's going to be eyeball to eyeball with the judge allocution going over the facts, statements of facts, either it's read or resided?

[01:43:03] Speaker 07:
Do they not have to enter into a stipulation of facts again at that point?

[01:43:10] Speaker 01:
Yes, is the short answer.

[01:43:11] Speaker 01:
There's a providence inquiry in front of the military judge who, much like a plea colloquy in a civilian court, has to

[01:43:17] Speaker 07:
this was an ongoing obligation at the start and then there were going to be other stages where it had to happen at least one other stage where it had to happen again as construed thus I think what that would mean is that is that an accurate I don't want to I'm not this is not a hypothetical question I think is that what this contract envisions the I

[01:43:37] Speaker 01:
I have understood, I think we have understood the enter into the stipulation of facts to refer to a done deal, a done but revocable deal under attachment A. I think you are correct that in the future they were agreeing to not challenge any of these facts in the Providence inquiry before the judge when they actually pleaded guilty, which is of course the central promise here.

[01:44:01] Speaker 01:
I don't think that they have breached, they did nothing to breach this paragraph six.

[01:44:07] Speaker 01:
or any future obligations to plead guilty.

[01:44:10] Speaker 01:
My only point here is I don't think they began performance of a promise contained in the agreement by virtue of acts they completed before.

[01:44:18] Speaker 01:
And whether or not you see that as the absence of a forward-looking promise, or you see that as the absence of any performance, by which I mean actions taken after this contract was entered, I think we have not entered 705D4B territory here, and that the military judge's decision

[01:44:34] Speaker 01:
to not give effect to the secretary's withdrawal on this basis was wrong.

[01:44:39] Speaker 07:
Does the convening authority not having signed the stipulation of fact have any relevance given paragraph 62 and 63?

[01:44:49] Speaker 07:
Or in signing this agreement, do you necessarily sign on to the attachments?

[01:44:56] Speaker 07:
Which is kind of how I read it.

[01:44:58] Speaker 01:
I think that's, I think we're in agreement, Your Honor.

[01:45:00] Speaker 01:
I think by signing the agreement, the convening authority was signing an agreement that include attachment A, which was the stipulation.

[01:45:07] Speaker 07:
It was incorporated into a single unit, so effectively signed.

[01:45:11] Speaker 07:
Yes, I think that's right.

[01:45:13] Speaker 07:
The stipulation effect as well.

[01:45:15] Speaker 01:
I think that's right, Your Honor.

[01:45:18] Speaker 01:
I'm happy to answer any further questions.

[01:45:20] Speaker 01:
I see, I have over time, I'm hoping for at least a few minutes of rebuttal.

[01:45:25] Speaker 07:
We offered, contracted for 20 minutes, and you've gotten four multiples of it.

[01:45:30] Speaker 01:
Whether you wanted it or not.

[01:45:32] Speaker 01:
I appreciate the court's time.

[01:45:34] Speaker 01:
I do know that we are under a demanding standard and that we have made a big ask of this court.

[01:45:41] Speaker 01:
But we think there have been, I think, something like 31 petitions for mandamus to this court from these military commissions, all by respondents.

[01:45:51] Speaker 01:
This is the first time the United States has sought one.

[01:45:54] Speaker 01:
We think this is the circumstance to issue the writ and effectuate and allow the Secretary of Defense's determinations to govern the course of the prosecutions of the alleged mastermind of 9-11 and two alleged co-conspirators.

[01:46:09] Speaker 01:
We will give you some time for rebuttal.

[01:46:10] Speaker 01:
Thank you very much, Your Honor.

[01:46:13] Speaker 07:
Can we take a five-minute break?

[01:46:14] Speaker 07:
Would everyone like that?

[01:46:17] Speaker 04:
This honorable court is again in session.

[01:46:19] Speaker 04:
Be seated, please.

[01:46:22] Speaker 07:
I hear now from Council for the respondents for respondents.

[01:46:30] Speaker 07:
And that for responded been attached.

[01:46:34] Speaker 09:
Morning, Your Honor.

[01:46:35] Speaker 09:
Thank you.

[01:46:37] Speaker 09:
Michelle Parity for Respondents Mohammed and Saoui.

[01:46:41] Speaker 09:
My colleague, Mr. Engel, will be making a few remarks on behalf of Mr. Ben-Ataj, specifically focusing on the negotiation and performance in Mr. Ben-Ataj's case.

[01:46:50] Speaker 09:
He's also Mr. Ben-Ataj's counsel before the Military Commission.

[01:46:55] Speaker 09:
If I could just start with, I think where your honor started with my friend this morning, and that is appropriateness, because it is not appropriate for the government to come to this court to save itself from an agreement that it entered into, on which the parties began to perform.

[01:47:14] Speaker 09:
and which the Secretary of Defense had plenty of opportunity to not only know about, but to prevent for years.

[01:47:22] Speaker 09:
He could have prevented it.

[01:47:24] Speaker 09:
Judge Rao, you and I had a lengthy colloquy about the convening authority's powers.

[01:47:28] Speaker 09:
In the Albalula case, you identified several of the powers the Secretary of Defense has over the convening authority.

[01:47:34] Speaker 09:
The Secretary of Defense exercised none of those here.

[01:47:38] Speaker 09:
Secretary Mattis, just to give you one example, terminated a prior convening authority, which had the effect of terminating pretrial negotiations in this case back in 2018, when the Secretary of Defense came back into office, when President Biden came into office in 2021 and the Secretary of Defense continued on, he provided no qualifications on

[01:48:01] Speaker 09:
the existing convening authority's authority.

[01:48:04] Speaker 09:
And more importantly, he put no conditions on General Escalier's authority in August of 2023.

[01:48:10] Speaker 09:
And that's significant.

[01:48:11] Speaker 05:
Let me ask you a question, though.

[01:48:12] Speaker 05:
So if under Fokker Services and Kellogg Brown and Root, the court looked at the question of mandamus this way.

[01:48:22] Speaker 05:
First, is there a legal error?

[01:48:23] Speaker 05:
And if there is a legal error,

[01:48:26] Speaker 05:
you know, is it appropriate to grant mandamus under the Cheney factors?

[01:48:30] Speaker 05:
So assuming we think that the military judge did err here, you know, on both questions, given the importance of this prosecution, I mean, even if the secretary could have done more, why would this not be an appropriate case for the writ, given how extraordinary the circumstances are and the importance of the government's interest?

[01:48:52] Speaker 09:
I think that's completely fair because I think the very extraordinarily of this case is precisely why mandamus is not appropriate and why ultimately it's not this court's responsibility it was the government's responsibility to make they made political decisions and I don't mean that in a partisan sense they made decisions as a political branch they're unhappy with the consequences perhaps

[01:49:16] Speaker 09:
Of those decisions, either due to a lack of controlling the committee authorities authority in advance to oversight during the long negotiation of this pre trial agreement in which the Secretary of Defense was directly involved, including in August of 2023 when he.

[01:49:32] Speaker 09:
appointed General Escalier to be the convening authority.

[01:49:36] Speaker 09:
And the secretary took none of those actions.

[01:49:39] Speaker 09:
And one of the most important jurisdictional principles of mandamus is that the party have neither a prospective means of potentially attaining the relief that they desire, or that they had a past means that they forwent for any reason.

[01:49:55] Speaker 09:
And that's in Ray Stone, just to put a case on it.

[01:49:58] Speaker 02:
Your friend on the other side, though, says

[01:50:01] Speaker 02:
If Secretary of Defense had, you know, let's say in June or May said, I'm withdrawing the power of the convening authority to negotiate and enter into pretrial agreements with these three accused, that

[01:50:32] Speaker 02:
that would have been the subject of attack by the accused counsel because that would have been unlawful interference.

[01:50:46] Speaker 02:
Is that right?

[01:50:48] Speaker 09:
Whether the accused were filed motions.

[01:50:50] Speaker 09:
I don't know.

[01:50:51] Speaker 09:
It's a capital case.

[01:50:52] Speaker 09:
A lot of motions get filed.

[01:50:53] Speaker 09:
A lot of motions are denied.

[01:50:55] Speaker 09:
To the extent there is a question about how that motion would have likely been viewed by Colonel McCall who issued the order in this case.

[01:51:03] Speaker 09:
He specifically said that the convening authority can have her powers limited ex ante by the Secretary of Defense.

[01:51:10] Speaker 09:
And so whether or not that's affected by essentially a revised delegation order or appointment order, or sort of I think Colonel McCaul's problem, if I can just get to a point with how the Secretary of Defense withdrew the convening authority in this case, is that he wasn't actually just following the ordinary rules and procedure.

[01:51:30] Speaker 09:
There's no provision for the

[01:51:31] Speaker 09:
Secretary of Defense to just reach in ad hoc.

[01:51:36] Speaker 09:
But to the extent that convening authority could have her powers limited ex ante, I don't think Colonel McCall said that she couldn't.

[01:51:43] Speaker 09:
She just said the Secretary of Defense didn't do that, which is why we got to the point where we are today.

[01:51:48] Speaker 07:
Would your position be the same if it had been the president himself that said ex nih on these agreements as commander in chief?

[01:52:00] Speaker 07:
A position about an ability to do that, make that ultimate prosecutorial judgment?

[01:52:05] Speaker 09:
Just to be clear, ex ante or ex post?

[01:52:08] Speaker 07:
Same time as the Secretary of Defense here.

[01:52:10] Speaker 09:
Here, so two days after the fact?

[01:52:12] Speaker 07:
No, our position- And let's just assume no performance in there.

[01:52:15] Speaker 07:
So I just only want to focus on the question of authority.

[01:52:17] Speaker 09:
Yeah, of course.

[01:52:18] Speaker 09:
No, we would say the same problem persists here because- To influence by the commander-in-chief on a prosecution.

[01:52:27] Speaker 09:
I just want to make sure I understand the question properly.

[01:52:29] Speaker 09:
Would we argue that it's undue influence for the Commander-in-Chief to say, I don't agree with these plea deals that have been entered and I think we should do everything we can to get out of them?

[01:52:37] Speaker 09:
I just want to make sure I understood the question.

[01:52:39] Speaker 07:
Do exactly what the Secretary of Defense said here, withdrawing.

[01:52:43] Speaker 09:
I don't know that it would be unlawful influence.

[01:52:46] Speaker 09:
I think it's just an improper use of authority that's not authorized by the rules in terms of withdrawing.

[01:52:52] Speaker 07:
Isn't it forbidden by the rules?

[01:52:54] Speaker 07:
It's forbidden in the sense that the – There's sort of background executive power principles here, so I don't think we have to look for authorization between Article 2 beyond – I'm asking you where it's forbidden for the secretary, or if it's for the secretary, I guess it would be the same for the president to say, we are not agreeing to this and put aside performance issues.

[01:53:21] Speaker 07:
I just want to know about the power issue.

[01:53:23] Speaker 07:
Where does it say they can't?

[01:53:25] Speaker 09:
Just in the rules and regulation for trial by military commission.

[01:53:29] Speaker 09:
So specifically, Colonel McCall pointed out the regulation for trial by military commission says that once the committee authority has been delegated the power to enter into a pretrial agreement, that power is hers alone.

[01:53:40] Speaker 09:
Now, the secretary, or the president, or the president firing the secretary could certainly change that regulation.

[01:53:46] Speaker 09:
But so long as that regulation is in place, we're in the world of a Cardney versus Sonnessy, US versus Nixon.

[01:53:52] Speaker 05:
Why doesn't that just mean that the convening authority has the sole authority while the convening authority has the delegation from the secretary?

[01:54:00] Speaker 05:
That doesn't mean the secretary can't withdraw the delegation and act as the convening authority himself.

[01:54:07] Speaker 09:
That might be a permissible interpretation of the rules.

[01:54:10] Speaker 09:
I don't think it's particularly relevant here to be perfectly candid, but the way Colonel McCaul certainly interpreted the existing rules, which I think is correct, is that the Secretary of Defense has called a superior convening authority in the terminology of the rules.

[01:54:25] Speaker 09:
And there are various circumstances under which the superior convening authority can yank little bits of the convening authority's powers out without having to appoint a new convening authority or go through any of the processes that would set out limitations ex ante.

[01:54:41] Speaker 09:
And none of those exist with respect to pre-trial agreements.

[01:54:44] Speaker 09:
And I think that's all Colonel McCaul was saying.

[01:54:46] Speaker 09:
I think that's entirely correct, just as a reading of the rules.

[01:54:49] Speaker 09:
You could write rules that allow the secretary to have sort of a more a la carte

[01:54:53] Speaker 09:
Say in the exercise of the committee authorities powers ex ante but without that legal authority and that off literally that authorization by law, then you would arguably start getting into before the pre trial agreements were entered into could the secretary withdraw the delegation.

[01:55:10] Speaker 09:
Again, I don't mean to be pedantic about this, but I'm just trying to answer your question exactly.

[01:55:15] Speaker 09:
Could the Secretary do exactly what he did saying, I hereby withdraw your authority?

[01:55:20] Speaker 09:
I think Colonel McCaul said for very good reason that's just not contemplated by the rules.

[01:55:24] Speaker 09:
Could the Secretary have fired the Convening Authority, which has never happened to be clear.

[01:55:28] Speaker 09:
Colonel Scalia is still the Convening Authority.

[01:55:30] Speaker 09:
Or could the Convening Authority have been reappointed or given a new document of appointment?

[01:55:35] Speaker 09:
Or could the Secretary of Defense have

[01:55:37] Speaker 09:
assumed convening authority himself entirely over the case.

[01:55:40] Speaker 09:
That's certainly authorized by the rules.

[01:55:42] Speaker 09:
All of those options were available.

[01:55:44] Speaker 09:
Just this, again, it's sort of a formal, I don't mean to fight your hypothetical.

[01:55:49] Speaker 09:
I'm trying to answer it.

[01:55:49] Speaker 05:
So your view is under the rules of the Military Commission rules that the secretary cannot partially withdraw authority.

[01:55:58] Speaker 09:
The secretary is given authority in certain circumstances to include grants of immunity to essentially

[01:56:04] Speaker 09:
withdraw individual authorities and to essentially put a backseat driver's hand on the wheel.

[01:56:10] Speaker 09:
Pre-trial agreements just aren't one of them.

[01:56:11] Speaker 09:
And I think that is what Colonel McCall's objection was to the manner in which the Secretary of Defense was attempting to sort of ollie.

[01:56:20] Speaker 05:
Aren't those exceptions, though, things that the secretary can do or the superior convening authority can do short of pulling back the delegation of authority to the convening authority?

[01:56:32] Speaker 05:
So there are ways of like having say lawful command influence.

[01:56:36] Speaker 05:
Lawful, yeah.

[01:56:37] Speaker 05:
Right?

[01:56:37] Speaker 05:
And so, but that assumes that the delegation is still in place and the inferior convening authority still has, you know, the delegation from the secretary.

[01:56:46] Speaker 05:
But I don't, I mean, weird, why would we read the rules to suggest those specific examples somehow foreclose the secretary's ability to pull back?

[01:56:55] Speaker 09:
So really for two reasons, one the exclusion of the one as the exclusion of the other.

[01:56:59] Speaker 09:
But I think more importantly, and this does get to the UI question, which again, we don't think is actually relevant, unlawful influence case, which we don't actually think is relevant here.

[01:57:06] Speaker 09:
But the unlawful influence provision protects the convening authority from influence except as authorized by law, influence authorized by law.

[01:57:15] Speaker 09:
And that is generally interpreted as requiring at least some express authority on those who loom over the convening authority to interfere or intervene in those supervision of a prosecuting view.

[01:57:28] Speaker 07:
In this part of the community authorities story, there's other things that not like normal prosecutors, but in this part of the agreement.

[01:57:35] Speaker 07:
Why isn't supervision of a prosecutor's judgment to enter into a plea agreement something that's quite ordinarily a lawful exercise of authority?

[01:57:48] Speaker 07:
An attorney general could overrule a US attorney and certainly an AUSA.

[01:57:54] Speaker 07:
And no one would say that's improper.

[01:57:57] Speaker 07:
And there can be problems the other way if we think that there's a prosecutorial authority that isn't answerable to anybody.

[01:58:05] Speaker 07:
and can't be overridden by anyone, particularly in a military context, but can be overridden by the commander-in-chief seems to me like an extraordinary way to read sort of as a backdrop for this rule.

[01:58:17] Speaker 09:
It's not, at least in these two respects.

[01:58:20] Speaker 09:
And one is the fact that the community authority does exercise both judicial and prosecutorial functions that are very much swirled together, that are not always clear cut.

[01:58:30] Speaker 07:
There may be other times, and there's some unusual things for sure that the community authority can do that no prosecutor would get to do in the civilian courts.

[01:58:39] Speaker 07:
But it seems to me that entering into a plea agreement is not

[01:58:44] Speaker 07:
even arguably an exercise of the judicial functions of the convening authority, which is where you generally see the unlawful influence issues coming up.

[01:58:55] Speaker 07:
I assume it's lawful, it's permissible for a convening authority to say, no, we're not agreeing to that plea offer.

[01:59:06] Speaker 09:
So yes, and I just want to put a huge but here, is that this is a respect in which the military justice system is a little different.

[01:59:13] Speaker 09:
Because when the convening authority accepts the pretrial agreement and it becomes binding, it's somewhere between the judge finally accepting the plea in a federal court and the prosecution signing.

[01:59:24] Speaker 07:
Not here.

[01:59:25] Speaker 07:
They still had to go before a judge.

[01:59:27] Speaker 07:
Of course.

[01:59:27] Speaker 07:
So it definitely was not there in this case.

[01:59:29] Speaker 07:
This was just a plea agreement.

[01:59:32] Speaker 07:
pre plea agreement really is a lot of what we're talking about before the plea was actually entered.

[01:59:36] Speaker 09:
That's correct.

[01:59:37] Speaker 09:
But in an ordinary in an ordinary federal prosecution, we wouldn't talk about a binding plea agreement until the defendant pleads necessarily agreement, but you would have a pretrial agreement and proposed as a pretrial agreement.

[01:59:51] Speaker 07:
That's correct and proposed

[01:59:53] Speaker 07:
I'm correct, but the name of the documents is all an offer for pre-trial agreement.

[01:59:59] Speaker 07:
This is not the plea agreement itself.

[02:00:01] Speaker 07:
This is a pre-trial agreement.

[02:00:03] Speaker 07:
You don't have those in the civilian world?

[02:00:05] Speaker 09:
No, you have, I guess, my only point.

[02:00:08] Speaker 07:
I think you do.

[02:00:09] Speaker 09:
Of course you do, yes.

[02:00:10] Speaker 07:
And no one would say that a prosecutor entering into that was engaged in any sort of judicial function.

[02:00:17] Speaker 09:
And I'll pre-trial agreement.

[02:00:20] Speaker 09:
I just want to point out, and we did cite some of the cases in our responsive brief, the military just treats that differently because it gets to the convening authority's sentencing discretion, which is traditionally treated as one of the most judicial of the convening authority's judicial acts.

[02:00:34] Speaker 09:
And Congress, for a variety of reasons, has been very interested in that over the past 10 years.

[02:00:38] Speaker 07:
Sentencing authority in any form, as in this form, or do you mean the specific sentencing authority to essentially ratchet down a sentence?

[02:00:47] Speaker 07:
after the military judge rules which is a different situation that that is the traditional situation but again as a matter of the statutory provisions i saw there that addressed pre-trial agreements as to a recommended sentence to the body i mean i get if if what the secretary had done is called up the military judge and said hey don't take this plea of course

[02:01:10] Speaker 07:
Or if a trial were to go forward and were to call up, you know, the commanding officer or the officers are sitting on the panel itself and say, hey, this is how you should vote.

[02:01:18] Speaker 07:
That's what we call undue influence in the judicial function at that point, right?

[02:01:24] Speaker 07:
The convening authority just can't pick the judge or the decision makers.

[02:01:29] Speaker 07:
But that seems to me, what authority is there that the prosecutorial judgment

[02:01:38] Speaker 07:
to enter into a prospective, a pretrial agreement that has contained within it a prospective plea and sentencing, you know, range at least.

[02:01:49] Speaker 07:
If there were, I guess you could have pleas that sometimes have locked down time periods and others will have ranges and things like that.

[02:01:54] Speaker 07:
But assuming that's what the prosecutors do in either one of those, what is your best authority that supervision as to that judgment

[02:02:07] Speaker 07:
would ever, by now I'm calling it the super-convenient authority, would be undue influence in military justice?

[02:02:16] Speaker 09:
Again, I just want to say we don't need to win on this argument to win in this case, but to the extent- I'm just trying to understand- No, no, I understand.

[02:02:24] Speaker 09:
Because the convening authority also makes promises in the pretrial agreement that the convening authority is bound to follow at the end of the process, which are exercises of the convening authority's judicial discretion.

[02:02:35] Speaker 09:
And so to the extent that entering into PTAs in the military context is viewed as one of the convening authority's protected acts, that's at least in part why, because the convening authority sits as the alpha and the omega of the military trial process.

[02:02:49] Speaker 09:
And so when the convening authority is making representations or promises and binding themselves or their officers, successors, to take certain actions at the end, which are unquestionably judicial in the military,

[02:03:01] Speaker 09:
system for which they have unfettered discretion, et cetera.

[02:03:04] Speaker 09:
That is just why this is treated as something that is protected generally from unlawful influence protections.

[02:03:10] Speaker 09:
But again, I don't think that is, first of all, essential to essentially denying or dismissing the writ in this case.

[02:03:18] Speaker 09:
And I also kind of candidly think it's sort of a distracting point, because the only reason we're having this sort of Rococo discussion about who is the unmoved mover in the military justice system

[02:03:30] Speaker 09:
It's because the Secretary of Defense didn't take any number of the steps that everyone agrees the Secretary could have taken over the span of many years when he was very much on notice that there were pretrial negotiations in this case, that he was a party to the terms of those pretrial negotiations.

[02:03:47] Speaker 09:
And appointed General Escalier, I point back again to August of 2023, is really a pivotal time.

[02:03:52] Speaker 09:
Because that's not only the time when General Escalier is appointed as convening authority.

[02:03:56] Speaker 09:
It's when the Secretary is being given

[02:03:59] Speaker 09:
explicit warnings by a member of Congress not to enter into this deal, that it's not in the public interest to enter into this deal.

[02:04:05] Speaker 09:
And it's right after this court decided the second Albuol decision, which declined to revisit the 2020 Albuol decision on the scope of the convening authority's authority.

[02:04:15] Speaker 09:
And both in the argument, in the briefing, in the public commentary, indeed in an amicus brief filed by the chief defense counsel pursuant to an on-bank petition in this court,

[02:04:25] Speaker 09:
The plea negotiations, the ongoing plea negotiations in this very case was a central cause of concern.

[02:04:31] Speaker 09:
To say, hey, to the extent there is any concern about the convening authority exercising unfettered discretion in certain areas, it may very well be in the resolution of the 9-11 case.

[02:04:43] Speaker 09:
And as this court's jurisprudence stand, that's a decision the convening authority can make without any intervention whatsoever by the Secretary of Defense.

[02:04:50] Speaker 07:
this court denied review and that remains the law of the circuit and so authority that they don't have to have the secretary of defense's sign off i'm sorry they don't have to have the secretary of defense's sign off but that's different than saying the secretary of defense couldn't disagree and override

[02:05:07] Speaker 09:
No, no, this was squarely put before this court because the very question was, could the convening authority make final determinations that were binding upon the government and therefore implicate the appointments clause without supervising authority by a principal officer, i.e.

[02:05:24] Speaker 09:
the Secretary of Defense?

[02:05:26] Speaker 09:
The government at that time said, you bet you can.

[02:05:29] Speaker 09:
We said that creates a pretty stark potential accountability problem.

[02:05:33] Speaker 09:
which all manner of individuals to include, as I mentioned, the amici filed in this court noted.

[02:05:38] Speaker 09:
And this court, you know, ruled that yes, the convening authority can bind the federal government, including in this very case.

[02:05:45] Speaker 09:
And so to the extent it's the government's burden to come to this court,

[02:05:48] Speaker 09:
to show not only a clear and indisputable right to relief, but to show that it's appropriate for this court to ultimately take responsibility for what I admit are probably very good faith objections to how this case is being resolved in some quarters.

[02:06:04] Speaker 09:
But that's not this court's problem.

[02:06:06] Speaker 09:
It's the government's problem.

[02:06:07] Speaker 09:
And this is an inter-branch dispute where the government has come to the federal courts because

[02:06:11] Speaker 09:
of the secretary's essentially failure to either intervene earlier or to oversee a subordinate that this court held repeatedly, he had the ability to oversee.

[02:06:20] Speaker 07:
The secretary has said upfront in appointing this convening authority, go forth, handle these cases, exercise your best judgment.

[02:06:32] Speaker 07:
But if there are going to be plea agreements with A, B, C, D, E, however long the list wanted to be,

[02:06:40] Speaker 07:
I have to sign those.

[02:06:42] Speaker 07:
Would that be lawful?

[02:06:43] Speaker 09:
Yes, 705A says exactly that.

[02:06:46] Speaker 09:
Subject to such limitations as the secretary may impose, right?

[02:06:50] Speaker 07:
That wouldn't have been attacked as unlawful interference or undue influence.

[02:06:55] Speaker 09:
I can't tell you what motions defendants in a capital case will or will not file.

[02:06:59] Speaker 09:
But again, just going by Colonel McCall's ruling on this very issue, I'm pretty sure that motion would have failed precisely because it is authorized by law to wit 705A.

[02:07:10] Speaker 09:
And again, I think this whole question about the Secretary of the Authority is a bit of a red herring because it's primarily just a question of form and how the Secretary of Defense has sought to intervene as opposed to his actual power to intervene at many, many, many, many decision points.

[02:07:24] Speaker 07:
in advance of that power to limit the committee authority is always there.

[02:07:30] Speaker 07:
And so the only question is whether it can be limited after signing rather than before after signing what garage signing the agreement rather than before.

[02:07:40] Speaker 09:
Yes.

[02:07:40] Speaker 09:
And in that review of that.

[02:07:43] Speaker 09:
By the secretary, no.

[02:07:44] Speaker 09:
This court, that was squarely before this court in Al-Bilal, I promise you.

[02:07:48] Speaker 09:
And this court was not moved by that at the time.

[02:07:52] Speaker 09:
And it shouldn't be moved by it here, particularly because, and I know this is a slightly different part of the case, but I do think it's relevant.

[02:07:59] Speaker 09:
The government and the respondents in this case did begin performance of promises under the pretrial agreement contained in the pretrial agreement, which I understand is a different question.

[02:08:10] Speaker 09:
But to the extent the secretary was

[02:08:13] Speaker 09:
you know, too late in a dollar short in trying to do it at any point after the entry of the plea.

[02:08:18] Speaker 09:
Several days went by to include proceedings on the record, to include the questioning of witnesses, to include the following of the promise to forbear from either following motions or asserting any rights, which are not just contained.

[02:08:32] Speaker 09:
I know the government focused.

[02:08:33] Speaker 05:
Where's the promise to forbear?

[02:08:35] Speaker 09:
It's in two places, at least in the Muhammad pre-trial agreement.

[02:08:40] Speaker 09:
First of all, the one the government often points to is paragraph 23.

[02:08:44] Speaker 09:
And the first says the accused agreed to waive all motions at the time of the entry of the plea, et cetera, et cetera, et cetera.

[02:08:52] Speaker 07:
The next provision is the- Entry of the plea, not entry of the guilty plea, not signing of this agreement.

[02:08:59] Speaker 09:
That's correct.

[02:08:59] Speaker 09:
Yes, we don't fight that.

[02:09:01] Speaker 09:
But if you go then to the very next sentence,

[02:09:04] Speaker 09:
It says the accused agrees to file no more motions except for essentially scheduling purposes, procedural scheduling purposes.

[02:09:18] Speaker 09:
But I would also point.

[02:09:20] Speaker 07:
Is that sentence not governed by the same timeframe upon entry and acceptance of the accused guilty plea?

[02:09:27] Speaker 09:
No, if I could give a grammatical as well as a logical reason, one is the antecedent covers the prior sentence, not the following.

[02:09:35] Speaker 09:
Furthermore, just in context, that sentence would actually make no sense, particularly with its carve-out with respect to scheduling, if it had to post-state the accused entry of the plea.

[02:09:48] Speaker 09:
This is exactly what the government keeps complaining that they need to see, a forward-looking promise

[02:09:53] Speaker 09:
that post-dates the agreement in this case.

[02:09:55] Speaker 09:
That's a forward-looking further agree, promise, not to make any motions except for scheduling.

[02:10:00] Speaker 09:
And that's precisely what the accused did in this case.

[02:10:03] Speaker 09:
That's one of the main reasons they didn't question this witness.

[02:10:07] Speaker 09:
But in addition, I would also point, and I apologize if I can't, I apologize if this is, I'm not sure that this is out of seal.

[02:10:14] Speaker 09:
I think it is, so I won't say the text of it.

[02:10:17] Speaker 09:
But if you go to paragraph five of the,

[02:10:21] Speaker 09:
pre-trial agreement.

[02:10:24] Speaker 09:
And this part of it, I. I believe that's still sealed.

[02:10:29] Speaker 09:
Is paragraph five still out of seal?

[02:10:30] Speaker 09:
So I would then just.

[02:10:31] Speaker 07:
Oh no, paragraph five, sorry.

[02:10:33] Speaker 07:
I'm sorry, are you talking Roman five or?

[02:10:35] Speaker 09:
I'm sorry, no, numeral five.

[02:10:36] Speaker 09:
Paragraph five sub-Roman four.

[02:10:39] Speaker 02:
It's still sealed.

[02:10:40] Speaker 02:
That's sealed.

[02:10:41] Speaker 09:
Okay, so without saying anything that's out of seal, I would simply point to all of the language immediately following the comma, following the precatory clause.

[02:10:56] Speaker 09:
Which, again, is a forward-looking promise.

[02:10:58] Speaker 07:
You want to talk about that a little bit more when we go into sealed session?

[02:11:01] Speaker 09:
Absolutely, Your Honor.

[02:11:02] Speaker 09:
I don't want to skirt the line on that.

[02:11:04] Speaker 09:
But I would just sort of point to that again.

[02:11:05] Speaker 07:
I'm not suggesting you're skirting anything.

[02:11:06] Speaker 07:
I'm sorry.

[02:11:07] Speaker 07:
It might help us to understand better your point.

[02:11:09] Speaker 09:
OK.

[02:11:10] Speaker 09:
But again, that's another forward-looking promise that was clearly in the contemplation.

[02:11:14] Speaker 07:
the notion that you all agreed that that language which is similar but not identical in all three agreements seems to me after you know there's much discussion and I apologize the same transcript appears in two different places and I'm I'm in JA 225 to 26 here which is the same pages that appear earlier I just highlighted and read the wrong the wrong way

[02:11:41] Speaker 09:
Yeah, I apologize, Your Honor.

[02:11:43] Speaker 09:
We were putting the JA together.

[02:11:44] Speaker 07:
Well, everything was going fast.

[02:11:45] Speaker 07:
So JA 225.

[02:11:48] Speaker 07:
And this is all unclassified.

[02:11:51] Speaker 07:
I take it all unsealed, I believe.

[02:11:54] Speaker 07:
It says unclassified.

[02:11:55] Speaker 07:
It doesn't say sealed.

[02:11:57] Speaker 07:
So quickly tell me if I'm not supposed to say this out loud.

[02:11:59] Speaker 07:
But you've all been quoting parts of it, so I think it's fine.

[02:12:02] Speaker 07:
So after the government had said its thing about with the waiver, they can't do anything.

[02:12:09] Speaker 07:
They can't participate.

[02:12:11] Speaker 07:
With the waiver, all motions, they can't actively continue to participate in any of the contested litigation.

[02:12:18] Speaker 07:
That's the quote that's been read many times from the government.

[02:12:21] Speaker 09:
Yes, Your Honor.

[02:12:22] Speaker 09:
I think it's page 233, if I recall.

[02:12:25] Speaker 07:
The government, what I have is on 224.

[02:12:27] Speaker 09:
OK, I apologize.

[02:12:30] Speaker 07:
It could be in here three times.

[02:12:31] Speaker 07:
But anyhow, so the government says that.

[02:12:34] Speaker 07:
And then Mr. Connell, his defense counsel, says, and this is the bottom half of it, seems to disagree with the government's view.

[02:12:47] Speaker 07:
It could be that they haven't abandoned all legal rights by pleading guilty or even agreeing to plead guilty.

[02:12:53] Speaker 07:
They may have some legal position on something that happens that is separate from pursuing relief under a motion.

[02:12:58] Speaker 07:
They may have an objection or privilege or something else they may wish to assert.

[02:13:04] Speaker 07:
So that seems to be direct disagreement with the government's reading of that paragraph.

[02:13:11] Speaker 07:
I'll just finish it.

[02:13:11] Speaker 07:
And then on the next page 226, Colonel McCall says, I agree with the government and with you, Mr. Connell.

[02:13:22] Speaker 07:
So the government, I don't read the military judge here is saying, I agree with the government.

[02:13:26] Speaker 07:
They can't do anything.

[02:13:27] Speaker 07:
He says, I agree with you and the government.

[02:13:30] Speaker 07:
And here's how we're going to thread this needle.

[02:13:33] Speaker 07:
And that's down on line sort of 12 to 16.

[02:13:37] Speaker 07:
Here's what I'm going to do.

[02:13:38] Speaker 07:
All right.

[02:13:39] Speaker 07:
They say you can't do anything.

[02:13:40] Speaker 07:
You say you have a right to do there.

[02:13:42] Speaker 07:
You still have a right to file objections and participate.

[02:13:47] Speaker 07:
What I'm going to do is go forward with Mr. Ali, because he doesn't have a guilty plea.

[02:13:52] Speaker 07:
We're going to go forward and question this witness with Mr. Ali, because I'm not going to hold everything up.

[02:13:58] Speaker 07:
There's the guy who doesn't have a plea agreement.

[02:14:00] Speaker 07:
And essentially, we're going to freeze your situation.

[02:14:03] Speaker 07:
So he's not agreeing.

[02:14:06] Speaker 07:
with Mr. Trevett that you can't file motions, make objections, do anything, or sorry, not file motion, but you can't make objections, you can't participate in hearings, it's not even great, there's nothing about questioning witnesses.

[02:14:15] Speaker 07:
He's not agreeing with that.

[02:14:17] Speaker 07:
He's agreeing with both of you.

[02:14:19] Speaker 07:
What are you gonna freeze yours?

[02:14:22] Speaker 07:
And then, when we get this all sorted one way or the other, there'll be a plea or not, but if there's not,

[02:14:29] Speaker 07:
then you're gonna have your full trial rights, right?

[02:14:32] Speaker 07:
So it seems to me when you say, everyone understood we couldn't do these things, that in fact is not accurate.

[02:14:39] Speaker 07:
I don't mean that in a pejorative way.

[02:14:42] Speaker 07:
That is not what the record reflects as I read it, that in fact, defense counsel said, no, we see things, we beg to differ.

[02:14:50] Speaker 07:
And the judge said, you both got points here.

[02:14:55] Speaker 07:
We're going to avoid it for now.

[02:14:58] Speaker 07:
We'll just go forward with Mr. Ali, and then we'll come back with the status of what you're going to participate in once we know what's happening with these, please.

[02:15:10] Speaker 07:
Tell me first if that's just a wrong reading of this record, and if so, why?

[02:15:16] Speaker 07:
And if it is an accurate reading of this record, then isn't that pretty strong evidence that in fact,

[02:15:23] Speaker 07:
that whatever the paragraph 23 and the equivalent paragraphs in the other agreements were, it was not a limitation at this stage of the proceeding on not questioning this witness.

[02:15:36] Speaker 07:
It was sort of a procedural case management judgment by the military judge to just separate these proceedings for now.

[02:15:46] Speaker 09:
So I think you're not misreading it, but I think this may be just a point of confusion given the sequencing of some of the pages.

[02:15:54] Speaker 08:
I've got plenty of confusion, I'm sure.

[02:15:56] Speaker 08:
Am I in the wrong?

[02:15:57] Speaker 08:
Are there more pages somewhere else I didn't see?

[02:15:59] Speaker 09:
Is the part you're referring to, I believe, occurs after the secretary attempted to withdraw.

[02:16:05] Speaker 09:
And there is a question about what the modus vivendi would be going forward insofar as the government is.

[02:16:13] Speaker 07:
No, I think this is the August 1 hearing.

[02:16:14] Speaker 09:
Is this the August 1 hearing?

[02:16:15] Speaker 09:
I just want to make sure I understand.

[02:16:20] Speaker 07:
Because back on 222 says, I think, sorry, this is where I think Mr. Trivet stands up and says, yes, because a few pages before 219, they're announcing the pretrial agreements on 219.

[02:16:34] Speaker 07:
Now, if there's pages that were taken out here and I don't know, then let me know.

[02:16:39] Speaker 09:
Oh, I see.

[02:16:40] Speaker 09:
I see.

[02:16:40] Speaker 09:
I'm sorry.

[02:16:41] Speaker 09:
I misunderstood.

[02:16:42] Speaker 09:
Yes.

[02:16:42] Speaker 07:
Okay.

[02:16:42] Speaker 07:
And then on 2 22, the judge says, I know the government said perhaps motions were beat, perhaps.

[02:16:47] Speaker 07:
I mean, the judge hasn't even seen the agreement at this point, so I don't know how the judge could agree.

[02:16:51] Speaker 09:
That's not correct.

[02:16:53] Speaker 07:
It was before him, but I just, I mean, he'd been just done.

[02:16:56] Speaker 07:
And he says, I need time.

[02:16:58] Speaker 07:
That was some of the time.

[02:17:00] Speaker 07:
I need time to sort this stuff and read this stuff.

[02:17:04] Speaker 07:
And that asks what the questions of what motions are waivable.

[02:17:06] Speaker 07:
And we're going to need the parties to be prepared to address that.

[02:17:09] Speaker 07:
And I'm planning on putting out something.

[02:17:10] Speaker 07:
So he's trying to figure out what this all means.

[02:17:13] Speaker 07:
The notion that the military judge is signing off on what it meant seems to me hard to reconcile

[02:17:19] Speaker 07:
with that.

[02:17:20] Speaker 07:
And that's when we get into, OK, well, now what are we going to do today with this suppression hearing and the witness in the Ali case?

[02:17:27] Speaker 07:
And that's when we get to the, you know, you have the government says, well, we think you can't do anything.

[02:17:31] Speaker 07:
And defense counsel says, oh, we don't agree with that.

[02:17:34] Speaker 07:
And the judge says, I agree with both of you.

[02:17:38] Speaker 07:
Let's just go forward with Mr. Ali.

[02:17:40] Speaker 07:
Be here if you want.

[02:17:42] Speaker 07:
But there's no place here that I read where either defense counsel or the military judge is saying, we agree with the government, we can't do anything.

[02:17:52] Speaker 07:
So we are hereby performing under the agreement.

[02:17:55] Speaker 07:
I wouldn't have to add those words, but in so many words, we are performing under the agreement by not questioning.

[02:18:00] Speaker 09:
So I also just wanted to, you're correct about the sequencing.

[02:18:05] Speaker 09:
No, no, no, no, it's quite right.

[02:18:06] Speaker 09:
You're correct about the sequencing, but also Mr. Connell is not counsel for any of the respondents.

[02:18:10] Speaker 09:
He's counsel for Mr. Lee.

[02:18:13] Speaker 09:
And so, first of all, I would just say his

[02:18:16] Speaker 09:
interpretation of a pre-trial agreement for which his client is not a party and for which he potentially has an adverse.

[02:18:21] Speaker 07:
Sorry, Mr. Connell is for Mr. Ali.

[02:18:24] Speaker 09:
That's correct.

[02:18:25] Speaker 09:
Yeah, Mr. Ali or Mr. Appalucci, as he's sometimes called on the record, not any one of the respondents.

[02:18:31] Speaker 07:
I mean, I don't hear any of the defense attorneys there saying he's got it wrong.

[02:18:35] Speaker 07:
They have an illegal, you know, they haven't abandoned all, they, he's not talking about Mr. Ali.

[02:18:40] Speaker 07:
They may have some things.

[02:18:41] Speaker 07:
So they're still a part of this case just in a much different posture.

[02:18:45] Speaker 07:
And all I'm saying is that, and you could say, well, that's just Mr. Ali, but then the judge says, I agree with Mr. Connell as well as with

[02:18:54] Speaker 09:
So if I may, Your Honor, and I promise I'm not quibbling you.

[02:18:59] Speaker 08:
I'm sorry if I got the wrong person.

[02:19:00] Speaker 09:
No, no, not at all.

[02:19:01] Speaker 09:
Again, Mr. Connell is a separately represented party who, again, may have adverse interest to our client, is not part of the pretrial agreement.

[02:19:10] Speaker 09:
And so I wouldn't rely on his particular interpretation of the pretrial agreement.

[02:19:13] Speaker 09:
He also says quite a lot.

[02:19:16] Speaker 09:
And so it's not entirely clear there what

[02:19:18] Speaker 09:
Precisely, Judge McCall is saying he agrees to specifically respecting his representations, because a lot is going on there.

[02:19:27] Speaker 09:
But I think the more valuable exchanges come about 10 pages later, when counsel for respondents in the government do begin to address these issues squarely.

[02:19:37] Speaker 09:
One is where the government says, at this point,

[02:19:42] Speaker 09:
I believe this is 233 and I'm sure someone will yell at me from behind me if I've gotten the precise page correct.

[02:19:53] Speaker 09:
Where the government says at this point it is our view that the accused essentially may not participate.

[02:20:01] Speaker 09:
Someone could give me the precise page site.

[02:20:04] Speaker 09:
I will give it to your honor.

[02:20:05] Speaker 09:
But then I think just as significant

[02:20:08] Speaker 07:
But just so I can back up to 30, then have the military judge saying, here's what this hearing is.

[02:20:16] Speaker 07:
Remember, he just said, I agree with both these points, but the right person speaking, he agreed with both points.

[02:20:22] Speaker 07:
Um, when it was said that they haven't given up everything, have a right to be here, have a right to participate or may have a right to participate.

[02:20:29] Speaker 07:
Leave that up.

[02:20:30] Speaker 07:
And what we're doing was going, we're going forward with the Ali case.

[02:20:35] Speaker 07:
We're not going forward with Mohammed.

[02:20:37] Speaker 07:
the Hal Hawassi or the Benetash case.

[02:20:43] Speaker 07:
We're just going forward with the Ali case.

[02:20:46] Speaker 07:
And any concerns or need for clarification on the next page?

[02:20:53] Speaker 07:
I'm seeing head shakes.

[02:20:55] Speaker 07:
I assume that's not just Mr. Connell's.

[02:20:57] Speaker 07:
All right, so now you're on 233.

[02:20:59] Speaker 07:
So we're only going forward with the Ali case today.

[02:21:02] Speaker 07:
And so you were on 233, is that right?

[02:21:05] Speaker 09:
Sure, so I think the colloquy is then beginning on 223, which is Mr. Trivet, who's counsel for the government.

[02:21:13] Speaker 07:
Sorry, 223 or 33.

[02:21:14] Speaker 09:
I'm sorry, exactly, 233, excuse me.

[02:21:18] Speaker 09:
When he's again explaining the understanding of the agreement between the parties, i.e.

[02:21:23] Speaker 09:
counsel for the government as well as counsel for the respondents, which does include him saying, at this point, we, at this point, it is our position that the accused may not essentially seek affirmative relief or question witness or, and again, this goes.

[02:21:41] Speaker 07:
There's a lot of talk on 33, but I'm going to have to get together and talk to defense counsel and figure out what's going on here.

[02:21:47] Speaker 07:
We'll have to talk to clients over the weekend, which all would be after the secretary acts.

[02:21:54] Speaker ?:
Sure.

[02:21:56] Speaker 07:
I'm sorry.

[02:21:56] Speaker 07:
It's just been kind of confusing.

[02:21:57] Speaker 07:
No, I apologize.

[02:21:59] Speaker 07:
We are.

[02:22:14] Speaker 09:
But if I can jump ahead before, because I'm having a little trouble just finding the precise quote from council, which is in our respondents brief at some length is, it's just as valuable though, I think, and again, far more valuable than what- I assume you're talking about the 237 language.

[02:22:31] Speaker 09:
Yes, that may, well, that's where- Please.

[02:22:34] Speaker 09:
Council for Mr. Saoui, Mr. Ruiz, speaks up.

[02:22:38] Speaker 07:
You're council.

[02:22:41] Speaker 07:
Your client's counsel are not in speaking in here.

[02:22:43] Speaker 09:
That's correct.

[02:22:44] Speaker 09:
Well, Mr. Sowers, I believe, does speak later, although I'm not sure if that part is in this particular colloquy.

[02:22:52] Speaker 09:
But what Mr. Cannell, again, Mr. Cannell, or excuse me, what Mr. Ruiz, who does represent the respondent, Mr. Al-Sawi says, is we are foregoing questioning of this witness.

[02:23:04] Speaker 07:
That is, we view that as- Oh, it says, we have not been engaging in any examination of the witness.

[02:23:09] Speaker 07:
But it hasn't even started yet.

[02:23:10] Speaker 09:
That's correct.

[02:23:11] Speaker 07:
I don't even understand what that sentence means.

[02:23:13] Speaker 07:
We haven't been engaging a witness.

[02:23:15] Speaker 07:
It's when the witness is still not engaged.

[02:23:20] Speaker 07:
We're abstaining.

[02:23:21] Speaker 07:
It all sounds like he's doing it right now, but the witness isn't there.

[02:23:24] Speaker 07:
The judge has said, we're just going for Mr. Ali's case.

[02:23:29] Speaker 09:
That's correct.

[02:23:30] Speaker 07:
That doesn't make sense to me.

[02:23:32] Speaker 07:
It will the reason Mr. Lee trying to black the government ever somehow to revoke to remove.

[02:23:36] Speaker 07:
Well, we've done performed.

[02:23:37] Speaker 07:
I mean, that's a very strategic and why his statement, but it doesn't seem to fit factually what was going on at this hearing.

[02:23:43] Speaker 09:
Again, I'm I apologize.

[02:23:46] Speaker 09:
We're having some J a lining up the J a sites, but the top of 230 starts.

[02:23:51] Speaker 07:
Oh, yes, I understand.

[02:23:53] Speaker 07:
That doesn't make sense to me.

[02:24:01] Speaker 07:
And what seems I'm sorry to talk to you while you're trying to look.

[02:24:05] Speaker 07:
It just seems really important to me when the judge said.

[02:24:09] Speaker 07:
Green with you both, whatever that means, when you had two contrary statements.

[02:24:15] Speaker 07:
I take your point that it wasn't by counsel here, but I think you're also there together in the room, I assume.

[02:24:22] Speaker 07:
That's correct.

[02:24:22] Speaker 07:
And no one's going, not talking for me.

[02:24:24] Speaker 07:
And the judge says, I actually am adopting the view that you're not giving up rights to make objections or privileges.

[02:24:32] Speaker 07:
these types of things.

[02:24:34] Speaker 07:
And certainly they can be here if they want in the hearings.

[02:24:36] Speaker 07:
But we're just, I'm going to thread the needle right now by saying today, this is now just Mr. Ali's case.

[02:24:43] Speaker 07:
And when this is all sorted, then it'll be a plea agreement and we'll have nothing more to do on the questioning witnesses front, or there won't be.

[02:24:52] Speaker 07:
And then we'll have your hearing on questioning this witness.

[02:24:56] Speaker 09:
So if I can just respond in turn just to the questions, and I apologize, we've had to just get the citations all lined up, is the specific point is the government says at this point with the waiver of all motions from three of the four accused.

[02:25:10] Speaker 09:
You're on which page?

[02:25:11] Speaker 09:
It's reported as JA 233 in our brief, but I have a feeling that may not be 100% correct because I have not been able to read and listen to you at the same time and find it quickly.

[02:25:24] Speaker 09:
But it can also be found because this is, I think, was crucial both to Colonel McCall and the CMCR's own reading of the record.

[02:25:31] Speaker 09:
So it's cited both at petitioner appendix exhibit A, which is Colonel McCall's ruling, page 26, as well as CMCR decision, which is petitioner appendix B at page 17.

[02:25:44] Speaker 09:
And the quote, again, specifically, this is the day the, this is counsel for the government.

[02:25:49] Speaker 09:
At this point, with the waiver of all motions from the three of the four accused,

[02:25:52] Speaker 09:
They can't actively participate or they can't actively continue to participate in any of the contested litigation based upon the pretrial agreement, right?

[02:26:03] Speaker 09:
In order to be compliant, they cannot continue to participate.

[02:26:06] Speaker 07:
The witness that made that same Mr. Trivet, did he sign these agreements?

[02:26:10] Speaker 09:
He did.

[02:26:10] Speaker 09:
Yes, your honor.

[02:26:11] Speaker 09:
He signed the stipulation of fact.

[02:26:12] Speaker 07:
He bothered to tell anybody where on earth he saw that language in the agreement.

[02:26:15] Speaker 09:
Again, I don't mean to get into things that are under seal, but certainly I think paragraph five as well as obviously paragraph 23, which we've been, I think, spending the most time talking about because it's unsealed, which is the prospective promise to file no more motions, which would include any predicates to the filing of motions as well.

[02:26:36] Speaker 07:
That's a pretty big question, at least Colonel McCall at the time.

[02:26:42] Speaker 09:
I disagree.

[02:26:43] Speaker 09:
I think Colonel McCall fully understood what the parties were saying, particularly when Mr. Ruiz.

[02:26:47] Speaker 07:
I agree when a defense counsel said they still have the right to make objections.

[02:26:54] Speaker 07:
They still have the right to state privilege.

[02:26:56] Speaker 07:
They still need to be here.

[02:26:58] Speaker 07:
So he was not thinking that this was a complete shutdown of defense counsel.

[02:27:04] Speaker 07:
Now, he might have later come to that conclusion and he said, I need to get briefing on what this all means, particularly this withdrawal of motions language.

[02:27:14] Speaker 07:
He said, I need to hear from the parties on what that means.

[02:27:17] Speaker 07:
But it seems a lot then to read into this hearing.

[02:27:21] Speaker 07:
Which is the only thing that is identical, apart from the stipulation facts, but for these purposes, the purposes of that paragraph, performance, this is the only thing people point to, and it strikes me as.

[02:27:32] Speaker 09:
Sorry.

[02:27:33] Speaker 09:
If I can just.

[02:27:33] Speaker 07:
That's very confusing.

[02:27:35] Speaker 09:
No, no, no.

[02:27:36] Speaker 09:
And I'll do my best to provide some clarity about it.

[02:27:39] Speaker 09:
Mr. Ruiz's statements that the respondents, and at least Mr. Hasawi, but I think it's true of all the respondents, were engaged in what he referred to as specific performance.

[02:27:49] Speaker 09:
This witness had been on the stand the day before.

[02:27:51] Speaker 09:
And so by announcing that it's even though I understand the question him the day before, I believe that I don't believe so because it was the government's witness.

[02:28:00] Speaker 09:
But I didn't have the opportunity day before.

[02:28:04] Speaker 09:
But it was certainly that it to the extent there's a tense sort of ambiguity in the tense of what Mr.

[02:28:12] Speaker 09:
that this is an ongoing proceeding and this has sort of altered the days, you know, the expectation of what would happen that day.

[02:28:19] Speaker 07:
You said it after the judge had already altered the day to be, all right, this is just Ali's hearing.

[02:28:24] Speaker 09:
Well, again, this is partly because a lot is going on in this hearing.

[02:28:29] Speaker 09:
And so I don't blame you for being slightly confused by what's happening.

[02:28:32] Speaker 09:
But this is also after the government said, we fear or anticipate a lot of the prospect of some unlawful influence on the proceedings.

[02:28:41] Speaker 09:
And so we're going to need to move quickly.

[02:28:43] Speaker 09:
And so I think certainly when Mr. Ruiz made that remark, he was very much just making sure everyone on the record understood he was performing under the pre-trial.

[02:28:52] Speaker 07:
Or he was planning to perform.

[02:28:54] Speaker 09:
No, he was performing by forbearing.

[02:28:56] Speaker 07:
Forbearing from questioning.

[02:28:58] Speaker 07:
There was no witness on the stand that had yet been for defense counsel.

[02:29:04] Speaker 07:
He was predicting future behavior that in fact

[02:29:08] Speaker 07:
carried out uh... did not get carried out because the judge said this is out this is ali day it's no longer your day but that's how i'm threading this needle of these conflicting arguments that i'm getting from an agreement you all just free agreements you all just dumped in my lap i haven't had time to look at

[02:29:24] Speaker 09:
Sure.

[02:29:25] Speaker 09:
But the government itself acknowledges, and I think this is on J.A.

[02:29:28] Speaker 09:
150, 152, that this witness was relevant not just to Mr. Ali, but to everybody.

[02:29:32] Speaker 07:
Absolutely.

[02:29:33] Speaker 07:
And the person taking the stand that day.

[02:29:35] Speaker 09:
They did, Your Honor.

[02:29:36] Speaker 07:
I'm sorry.

[02:29:37] Speaker 07:
I know.

[02:29:37] Speaker 07:
I'm sorry.

[02:29:38] Speaker 07:
And the judge not said today is just Ali hearing day.

[02:29:45] Speaker 07:
freeze your situation for now.

[02:29:47] Speaker 07:
It seems, you know, he just didn't have enough information at this point and was getting conflicting arguments.

[02:29:54] Speaker 07:
He's freezing that.

[02:29:55] Speaker 07:
And if the judge has already said, this is not your suppression hearing day.

[02:30:00] Speaker 07:
It's just Mr.

[02:30:04] Speaker 07:
If you can show me on the record where the judge and maybe if it's some other part of the record where once this witness was on the stand counsel for one of the three defendants was there and the judge said, would you like to ask any question to the non Ali counsel?

[02:30:22] Speaker 07:
Would you like to ask any questions?

[02:30:25] Speaker 07:
And they all said, we can't and sort of the terms that we've been talking about here, that would be much more helpful.

[02:30:30] Speaker 07:
It's just these pages here, we're not, we're raising more questions than answers for me.

[02:30:34] Speaker 09:
And I, we apologize and we'll happy to provide the transcript is what it is, but we're happy to provide the full transcript of the hearings that week, which I think will provide more content.

[02:30:43] Speaker 07:
Do you know?

[02:30:44] Speaker 07:
when the witness was on the stand, were counsel for these three defendants still in the room?

[02:30:49] Speaker 07:
And yes, yes, they were.

[02:30:51] Speaker 07:
Okay.

[02:30:52] Speaker 07:
And did any of them, did the judge ever say, do you want to ask questions?

[02:30:56] Speaker 07:
Did the judge suggest that they had the opportunity to ask questions at that point?

[02:30:59] Speaker 07:
And they said, essentially, we can't in the terms.

[02:31:01] Speaker 09:
Well, the day before the respondents had been questioned this witness, it was a government witness, but I was just corrected by my colleague if I missed before the start.

[02:31:11] Speaker 09:
Yes, exactly.

[02:31:11] Speaker 07:
And then forbear from proceeding further so that only the evidence of forbear because I'm reading the judges having said,

[02:31:19] Speaker 07:
What going on here?

[02:31:21] Speaker 07:
So instead of this, at the beginning of the day when he drank his coffee and came on in, he thought this was going to be suppression hearing for Mr. Ali, Mr. Mohammed, Mr. Binatash, Mr. Al-Hasawi.

[02:31:35] Speaker 07:
And then he says, oh, hang on.

[02:31:40] Speaker 07:
I hear different things coming from you and here's what we're gonna do.

[02:31:43] Speaker 07:
We're going forward with Mr. Ali.

[02:31:47] Speaker 07:
His case is going forward today.

[02:31:51] Speaker 07:
not any of these three defendants' cases, not their motions to suppress, not their interest in this witness.

[02:31:57] Speaker 07:
That's frozen, and we'll sort out what happens with that once we see if these pleas go forward or not.

[02:32:02] Speaker 07:
You're telling me that's a wrong interpretation and that there's something later in the record that shows he, in fact, was still inviting you all to ask questions and then you forbore.

[02:32:15] Speaker 09:
So I can get you a specific answer to any sort of invitation.

[02:32:19] Speaker 09:
I don't think that happened though, precisely because of the colloquy at the beginning and everyone might have not happened precisely because the judge had already said.

[02:32:26] Speaker 07:
You all are put to the all are frozen off for today.

[02:32:29] Speaker 07:
Uh, well, not just Rosen officer and watch, but this is not your suppression hearing.

[02:32:33] Speaker 07:
This is no longer your suppression hearing.

[02:32:36] Speaker 09:
But, but even that, let me, let me, I'll just say two things to that.

[02:32:38] Speaker 09:
Your honor, even that would be the promise to fulfilling the promise to forbear from further litigation, which is precisely what Colonel McCall found.

[02:32:46] Speaker 07:
Uh, secondarily, even when the judge has, as a matter of procedure, having not read the agreements, but wanting to.

[02:32:54] Speaker 07:
wisely, do no harm, not step on anything, just said, we're just setting, it's almost like freezing the status quo.

[02:33:02] Speaker 07:
We're just not doing anything with your case today.

[02:33:05] Speaker 07:
I'm not saying whether you could question or couldn't question.

[02:33:09] Speaker 07:
That's how he could somehow agree with both Mr. Trevitt and Mr. Connell.

[02:33:14] Speaker 09:
Again, I don't want to over read his agreement with Mr. Connell, but I also do think that if only not in a

[02:33:22] Speaker 09:
That's fine.

[02:33:24] Speaker 09:
But in not objecting, certainly all of the accused, if they were actively participating, would object to questions from Mr. Connell or for the government, particularly given the fact that at this point, Mr. Connell, they went from being in a joint trial to adverse to him, if only because he had not entered into a pretrial negotiation and they were stipulating to facts that implicated him.

[02:33:44] Speaker 09:
So in all of those circumstances, they were forbearing from the ordinary conduct of litigation in these cases, which again, we're happy to provide more record sites to this court that hopefully won't just add to the morass.

[02:33:57] Speaker 09:
But it is routine in this trial for everyone to sort of click through and participate.

[02:34:03] Speaker 07:
I assume everyone was filing a motion to suppress.

[02:34:06] Speaker 09:
Oh, that's correct.

[02:34:06] Speaker 09:
It was a joint motion to suppress.

[02:34:07] Speaker 07:
Everybody wanted to question this witness about their motion to suppress.

[02:34:10] Speaker 07:
Everyone might have their own different, might be some common questions, might be different questions, but every attorney had, every client had their own attorney.

[02:34:16] Speaker 07:
Right.

[02:34:17] Speaker 07:
And all I'm saying is that we hear this world that the day before was, I don't know if there were other defendants at well, but with four, at a minimum here, four defendants with four motions,

[02:34:28] Speaker 07:
all wanting to question the same witness through four separate counsel.

[02:34:33] Speaker 10:
That's correct.

[02:34:33] Speaker 07:
And then as I read what Colonel McCall did here is when plea agreements dropped, it's only for him for three of them.

[02:34:40] Speaker 07:
He didn't even have time to read and had questions about what it meant and was hearing conflicting arguments.

[02:34:44] Speaker 07:
He just said, I agree with both of you, which is only, I kind of think it's not decided who has to do what.

[02:34:50] Speaker 07:
The way I'm going to deal with that is this is no longer a four-party case.

[02:34:55] Speaker 07:
This is today.

[02:34:57] Speaker 07:
This is a one-defendant case on a one-defendant suppression motion, and that defendant can go forward and question this witness.

[02:35:05] Speaker 07:
And the rest, by the judge, as a matter of, again, I think, wisely not stepping on anything of which he hasn't had an opportunity to inform himself, it just said, we're just not formally severing.

[02:35:19] Speaker 07:
He was clear about that, but we are just setting that off for now.

[02:35:23] Speaker 07:
So if we read that as this was no longer

[02:35:28] Speaker 07:
Mr. Mohammed's day for motion to suppress that question this winter witness or any of the other two.

[02:35:33] Speaker 07:
Then nobody forbear or from anything.

[02:35:37] Speaker 07:
Well, it does sound just that I can't sort this right now.

[02:35:40] Speaker 07:
I need I'm just gonna I don't want to hold up Mr. Ali.

[02:35:43] Speaker 07:
Of course, I can make an adjustment about I need to do this.

[02:35:47] Speaker 07:
for your performance.

[02:35:49] Speaker 07:
We need to sort this out later.

[02:35:52] Speaker 09:
He's making that judgment as he needing to do it, precisely because that's exactly what counsel for the government and responders are telling him.

[02:35:58] Speaker 09:
But even if you disagree with me on that.

[02:36:00] Speaker 07:
He's certainly not needing to do it as a matter of contract language or performance of the plea agreements because he got contradictory arguments and he hasn't had time to read it.

[02:36:08] Speaker 07:
And you earlier in the thing, he's like,

[02:36:10] Speaker 07:
I need to hear from the parties what this clause means.

[02:36:14] Speaker 07:
So I don't think there's any way we can read his actions as interpreting the defendant's obligations under the agreement at that moment.

[02:36:23] Speaker 09:
I can disagree with you just on this one specific ground, which I also think is why this case is completely inappropriate for mandamus is that if there are these sort of ambiguities about precisely what everyone thought and meant and understood to be performance or not at the time.

[02:36:38] Speaker 09:
Colonel McCall was unquestionably in the best position to decide those questions and he affirmatively clearly explicitly decided.

[02:36:46] Speaker 09:
that when the government made this representation and when he instructed parties about the modus vivendi that that is exactly what they were doing was performing under the terms of the agreement contradicted by sort of a textual reading of the transcript what do we do um i i certainly don't think it's clearly and indisputably contradicted by both attorneys

[02:37:05] Speaker 07:
Again one of those return all agreed with him doesn't matter there was an argument from a dense council they this wasn't all given up and he agreed with that he adopted that reading as well as the one they adopted he adopted that they can't do anything and yes, they can do something but but I don't see actually I don't know how to interpret that, you know, I'm

[02:37:27] Speaker 07:
He's a thoughtful guy, and I'm going to say that I think then it makes perfect sense when... I'm sorry, I don't mean to beat it at home.

[02:37:36] Speaker 07:
No, no, no.

[02:37:37] Speaker 07:
Maybe with a judge hat on, it makes perfect sense when things are dumped in your lap, and you haven't had yet time to read anything, and you're getting contradictory arguments to just say, boom, we'll deal with that.

[02:37:51] Speaker 07:
later but there's no reason any of this should slow down Mister Ali that would be that's no one has disputed that was a reasonable thing for him to do that's correct into the so the question is in doing that was he somehow answering.

[02:38:06] Speaker 07:
the debate between the two parties about what an agreement he hadn't yet read yet, and in particular, a clause that he said, I need briefing on?

[02:38:13] Speaker 07:
That just seems an implausible reading of the transcript.

[02:38:17] Speaker 09:
I frankly disagree, Your Honor.

[02:38:18] Speaker 09:
And I don't think Colonel McCall was acting in bad faith when he interpreted his own conduct on the bench in his final ruling.

[02:38:24] Speaker 07:
I'm not suggesting bad faith.

[02:38:25] Speaker 07:
It could be crystal clear.

[02:38:27] Speaker 07:
You learn things over time, and that affects sometimes how you look backwards.

[02:38:31] Speaker 07:
But I want you to look at that 48-hour window here, which is so important.

[02:38:35] Speaker 09:
Sure, but again, if we're parceling out precisely what Mr. Connell, who is not a party to this agreement, is saying about the way the proceedings should go forward and what Mr. Trivet, who is counsel for the government and a party and a signatory, indeed a drafter of both this agreement and stipulation in fact are saying, and Colonel McCall is saying, I agree with both of you and not specifying precisely what he agreed with, I think the fairest reading of that statement

[02:38:59] Speaker 09:
in context is he agrees with Mr. Trivet that the pre-trial agreement requires forbearance, contains promises to forbear on the parts of respondents.

[02:39:07] Speaker 09:
And yet, and yet, if you'll remind me, he agrees with Mr. Connell that that does not require immediate severance of the defendants from the case and allows, because that is most of what, and we may read it differently, sorry.

[02:39:20] Speaker 02:
So when I look at that statement by Mr. Connell, he says they haven't,

[02:39:28] Speaker 02:
You know, they haven't abandoned all legal rights by pleading guilty.

[02:39:32] Speaker 02:
They may have some legal position on something that is separate from pursuing relief under a motion.

[02:39:43] Speaker 02:
So there he seems to be saying that they agreed to waive all motions, but they may still be able to assert some sort of objection that one doesn't have to make.

[02:39:58] Speaker 02:
by filing a motion or making a motion.

[02:40:02] Speaker 02:
And he says they may have an objection or privilege or something else they wish to assert.

[02:40:10] Speaker 02:
I mean, if, for instance, a witness was going to testify about attorney-client privilege information for one of these respondents,

[02:40:24] Speaker 02:
Would that be precluded?

[02:40:27] Speaker 02:
Would an objection to eliciting that testimony be precluded by the pretrial agreement?

[02:40:35] Speaker 09:
It might be.

[02:40:37] Speaker 09:
I think it would depend on the context.

[02:40:39] Speaker 09:
It would probably look a lot like collateral order doctrine litigation, perhaps.

[02:40:43] Speaker 09:
But I also want to emphasize that, again, not only is Mr. Connell not a party to the pretrial agreements in this case, he did not have a copy of the pretrial agreement.

[02:40:51] Speaker 09:
He has no basis to know.

[02:40:53] Speaker 09:
what these pretrial agreements require or don't require.

[02:40:55] Speaker 09:
And again, I would point back to paragraph five, which I think is far more explicit as a prospective performance to cover the kind of forbearance that we're talking about here.

[02:41:05] Speaker 09:
And even paragraph 23 is, if you don't agree with me, that paragraph 23, I think, covers it as well.

[02:41:10] Speaker 09:
There's a bit of a belt and suspenders quality to some of this pretrial agreement.

[02:41:15] Speaker 09:
You know, these are promises.

[02:41:17] Speaker 09:
And I'll point to one other promise that Colonel McCaul didn't find.

[02:41:20] Speaker 09:
It's not part of his findings of performance, but I think is explicit on the record and explicit on the record that we gave you and relates to a lot of the discussion we've been having, which is paragraph 57 and 58 of the pre-trial agreement.

[02:41:36] Speaker 09:
And this is out of seal because it is cited in our briefing.

[02:41:41] Speaker 09:
Explicitly require the respect

[02:41:43] Speaker 07:
you to which one I still have that mark is that wrong I'm sorry have them Mohammed

[02:41:49] Speaker 09:
uh... yes in the of the mohammed when i i'm so that is sealed uh... it's it's it's quoted in our briefs i'm i'm a little uh... i apologize if there is some uh... back-and-forth there but specifically uh... with respect to the promises and again it's their terms and we agree to language

[02:42:14] Speaker 09:
to seek the expedition of the entry of the pleas and further proceedings in the cases and all the parties all the respondents in uh who are governed by the pre-trial agreement do that at the very outset of this hearing and that if nothing else that's clear performance that's

[02:42:29] Speaker 09:
forward-looking performance.

[02:42:30] Speaker 09:
That's performance after the agreement.

[02:42:31] Speaker 09:
That's affirmative acts.

[02:42:33] Speaker 09:
It's not just a promise to forbear.

[02:42:34] Speaker 09:
And that was a very valuable promise to the government.

[02:42:37] Speaker 09:
And this is unsealed because it is part of our- Was that argued below?

[02:42:41] Speaker 07:
Because I don't hear any mention, remember any mention of these, that performance.

[02:42:47] Speaker 09:
Um, Colonel McCall did not make a specific finding.

[02:42:51] Speaker 07:
The Court of Military Commission Review did not either?

[02:42:53] Speaker 07:
No, no they didn't.

[02:42:54] Speaker 07:
You argued to them that this was the relevant performance?

[02:42:56] Speaker 09:
It was, or it's at least tied up in this broader question that you were having with my friend about the stipulation of fact, because... That's a very different question.

[02:43:05] Speaker 09:
It is a different question, but I do want to... The performance on the stipulation follows the performance under paragraphs 57 and 58, precisely because one of the

[02:43:15] Speaker 09:
reasons why the convening authority had given instructions to Mr. Trivet to ensure that the stipulation effect was signed before it was provided to the convening authority for agreement was so that there wouldn't be these kinds of sort of post hoc dickering problems that could delay the entry of the pleas and track these proceedings anymore.

[02:43:37] Speaker 09:
And so 57 and 58 are directly pointing at

[02:43:41] Speaker 07:
the expedition of the proceedings, which is also why it does not actually seem relevant to this discussion much later.

[02:43:47] Speaker 07:
Maybe it's just 57 more about whether this argument was.

[02:43:57] Speaker 09:
Well, it's not our burden, you know, to the extent we're going to engage in like fairly fine parsing of fairly fine parsing of the transcript in this case and fairly ambiguous statements that that is making respecting counsel who are not, you know, representing anyone in this case as a basis to conclude there's at least uncertainty.

[02:44:20] Speaker 05:
So your position is that these are findings of fact.

[02:44:24] Speaker 09:
Yes, aspects of them are finding a fact, yes.

[02:44:27] Speaker 05:
So the question of what the pretrial agreements requires a question of law.

[02:44:31] Speaker 09:
That's generally correct, yes.

[02:44:35] Speaker 05:
It's a kind of contract interpretation, if we would review de novo.

[02:44:38] Speaker 05:
So what precisely then are the facts or the findings of fact that you think would be subject to a different standard?

[02:44:47] Speaker 09:
So, you know, I know everyone's been digging into the restatement, but I think the clearest term that would be relevant to the finding of the fact is what is performance?

[02:44:54] Speaker 09:
But performance is traditionally for hundreds of years, treated as a jury question in contract cases, whether or not someone has or has not performed.

[02:45:01] Speaker 09:
And so to the extent questions of performance were or findings of performance were made by the fact finder.

[02:45:07] Speaker 07:
real world fact questions of who did what, which really isn't so much in dispute here, as opposed to whether certain factual conduct counted as performance under the agreement.

[02:45:21] Speaker 07:
And I would think the latter question would be something viewed de novo.

[02:45:26] Speaker 07:
Will, I think… It's law and fact at a minimum.

[02:45:28] Speaker 09:
The lengthy colloquy you and I had trying to precisely interpret exactly what the parties were or were not doing at the hearing, I think, suggests precisely the kind of ambiguity, which is why this is a question of fact, which is the kind of question that's committed to a fact finder who's able to see the party's behavior.

[02:45:45] Speaker 09:
And again, more importantly, just a basic contract interpretation, where there is ambiguity about what a term means.

[02:45:52] Speaker 09:
And we don't think paragraph 23 and certainly not paragraph 5 is ambiguous.

[02:45:56] Speaker 09:
But if there's any ambiguity about what those promises entail, the course of performance of parties is a question of fact, and it was also used to resolve any of these.

[02:46:05] Speaker 05:
What's the course of performance here?

[02:46:06] Speaker 05:
Is it just the hearings?

[02:46:07] Speaker 09:
Yes, the behavior of the parties on the hearings.

[02:46:10] Speaker 07:
What's your best case that course of conduct can be determined by a single event?

[02:46:15] Speaker 07:
I think a lot of case law and restatement expect that it's more than, it's a series of actions.

[02:46:21] Speaker 09:
To the extent there is a series of events, I would point this court to from about, I'm pretty sure it's paragraph or page 149 forward of the joint appendix, which is the hearing to follow.

[02:46:32] Speaker 09:
That follows the Secretary of Defense's attempt to withdraw.

[02:46:37] Speaker 09:
Where, again, the question of how do we proceed forward?

[02:46:41] Speaker 05:
And the respondents... So, but a hearing that occurred after the withdrawal, if the withdrawal was valid, then that wouldn't really be a course of performance, would it?

[02:46:51] Speaker 09:
Well, it goes to the, what do these, how do the parties interpret the terms of the contract if it were valid?

[02:46:57] Speaker 09:
So, you know, the question after the secretary withdrew is not what the contract meant.

[02:47:02] Speaker 09:
It's what the contract required, assuming it is still in effect.

[02:47:06] Speaker 09:
And again, the course of performance of the parties was that the forbearance from litigation that everyone had understood to be required under the performances due under the contract before had to continue.

[02:47:21] Speaker 09:
And the government, and this is on page 157, the government is squarely asked whether or not that is their understanding.

[02:47:26] Speaker 09:
of the of how should they should proceed and the transcripts a little sort of opaque exactly what happens.

[02:47:35] Speaker 09:
So on paragraph I believe it's page 157.

[02:47:47] Speaker 09:
After they go through the continued requirement to forbear from questioning witnesses, objecting to questions, filing motions, et cetera, it's put to the parties that this is the way they're going to go forward.

[02:48:02] Speaker 09:
It's put to Mr. Trivet and then anything other from the defense or prosecution.

[02:48:06] Speaker 09:
Mr. Trivet, can I have just a second to consult, sir?

[02:48:09] Speaker 09:
Of course.

[02:48:09] Speaker 09:
Counsel, confer.

[02:48:11] Speaker 09:
Nothing from the government, sir.

[02:48:12] Speaker 09:
So if nothing else, the government acquiesced in this interpretation and has continued to acquiesce in this interpretation.

[02:48:21] Speaker 05:
Are you trying to make an estoppel argument?

[02:48:23] Speaker 09:
It would be a pretty good estoppel argument.

[02:48:26] Speaker 09:
But I don't even think you need to go that far.

[02:48:27] Speaker 09:
Because I do think, to the extent, Your Honor makes a good point.

[02:48:31] Speaker 09:
One hearing is not a course of performance.

[02:48:34] Speaker 09:
But to the extent that what was understood to be required at that initial hearing,

[02:48:39] Speaker 09:
continues to be understood by all the necessary parties to include the military commission judge, and without objection at any point by the government, I think is pretty, again, the best evidence for what a particular term of the contract means.

[02:48:55] Speaker 05:
Who drafted the pretrial agreements?

[02:48:58] Speaker 09:
Mostly the government, and specifically the stipulation of fact.

[02:49:03] Speaker 09:
It was almost entirely written by the government.

[02:49:06] Speaker 05:
But what about the pretrial agreement?

[02:49:08] Speaker 09:
It was written between the parties.

[02:49:10] Speaker 09:
The terms were negotiated between the parties, but the government was the principal draft.

[02:49:14] Speaker 09:
Because the government actually initiated the pre-negotiations in March of 22.

[02:49:22] Speaker 09:
So this is at the government's initiative.

[02:49:24] Speaker 09:
The government is coming forward with both the terms of the agreement as well as the stipulation of fact.

[02:49:32] Speaker 09:
Again, if we're breaking out sort of 1L contract law, again, contra proferentum, the government is the primary drafter of this contract.

[02:49:39] Speaker 09:
And so, you know, if there's a dispute about the interpretation, certainly.

[02:49:42] Speaker 07:
Does that apply when you've jointly drafted it?

[02:49:44] Speaker 09:
I'm sorry?

[02:49:45] Speaker 07:
Does that apply?

[02:49:46] Speaker 07:
Does that principle apply when you've jointly drafted it?

[02:49:49] Speaker 09:
I'm sorry.

[02:49:49] Speaker 07:
Does that principle apply of construing it against the government when it's been jointly drafted?

[02:49:54] Speaker 09:
Generally, no.

[02:49:55] Speaker 09:
I'm not pinning our case on that.

[02:49:57] Speaker 07:
I'm not pinning your case.

[02:49:58] Speaker 07:
I'm just... I mentioned the fact question.

[02:50:01] Speaker 09:
I was just curious.

[02:50:02] Speaker 07:
Was there sufficient participation by the defense counsel?

[02:50:06] Speaker 09:
We don't dispute that these terms were negotiated by all the parties, but the contract, the agreement was put forward by the government and then modifications were made to conform to a particular defense team's interests.

[02:50:18] Speaker 07:
So it's essentially co-written?

[02:50:19] Speaker 09:
Yes, we're not running away from that.

[02:50:21] Speaker 07:
But again, to the extent that... Is there any case then that would construe language in a bill against the government when it's co-written?

[02:50:29] Speaker 09:
I'm not claiming there is, so I wouldn't say there would be.

[02:50:35] Speaker 09:
But to the extent the parties to the agreement understood it to mean something, behaved precisely as you would expect, given that commonly understood meeting, continue to behave that way up until today, as far as I understand.

[02:50:48] Speaker 09:
Again, without objection from the government below, I just think that's

[02:50:53] Speaker 09:
That's course of performance in any normal contractual situation.

[02:50:59] Speaker 09:
And particularly when the stakes are this high, particularly where it's not as if the government doesn't know that this case is coming, ultimately, perhaps, to this court.

[02:51:08] Speaker 09:
The government had plenty of opportunities, plenty of off-ramps, frankly, around this deal to begin with.

[02:51:13] Speaker 09:
And I know I've been up here a long time, and so I'm not trying to belabor your patience.

[02:51:18] Speaker 09:
If there are no further questions, I'll just sit down.

[02:51:20] Speaker 09:
But at this late date,

[02:51:22] Speaker 09:
when there's been so much delay, it's not the job of this court to delay a case that has already been delayed, arguably, by 20 years for reasons entirely of the government's own making, another 20 years or more.

[02:51:35] Speaker 09:
I heard the government say, respecting their right to post-trial relief, that this could take another three years before this case returned to this court.

[02:51:44] Speaker 09:
Three years in the life of this case, in the life of Guantanamo, that strikes.

[02:51:49] Speaker 09:
I was like, yeah, that sounds both reasonable and pretty brisk.

[02:51:52] Speaker 09:
Because the alternative is, and we lay it out in our brief, this case is not coming back to this court potentially until 2050.

[02:51:58] Speaker 09:
And that's shocking.

[02:51:59] Speaker 09:
That is shocking.

[02:52:01] Speaker 09:
And that's not something, certainly, that equity commands.

[02:52:04] Speaker 09:
And given the government's own conduct in this case, I don't think they've made a case for Mendenes.

[02:52:09] Speaker 02:
So is your,

[02:52:13] Speaker 02:
co council going to address whether entry into the stipulation is beginning performance.

[02:52:23] Speaker 02:
Do you have anything else you want to say on that issue?

[02:52:27] Speaker 09:
Your honor has asked a lot of questions about that in advance and we would simply concur with the position that entry into

[02:52:33] Speaker 09:
A stipulation effect does occur at the time it's accepted, in the same way that entry into a marriage begins when both parties say, I do.

[02:52:40] Speaker 09:
And just because the husband says, I do first, doesn't mean that he has entered into the marriage before the wife has.

[02:52:48] Speaker 09:
And so we entirely agree with the analysis.

[02:52:51] Speaker 09:
And there are circumstances, to be sure.

[02:52:54] Speaker 09:
And I think some of the cases Your Honor pointed out

[02:52:57] Speaker 09:
specifically the Pruner case are one of them, where stipulations and all the performances do under the pretrial agreement post-state the agreement itself.

[02:53:05] Speaker 09:
But there are also circumstances where the parties want, for very good reasons, which are explained in our briefs and on the record in this case, to have the pretrial agreement be binding as binding as possible immediately.

[02:53:19] Speaker 09:
the entry into the stipulation, in fact, occurs at the time the pretrial agreement is accepted by the convening authority.

[02:53:26] Speaker 09:
And the government pointed to this paragraph, and I would just point you back to it, paragraph 62 of the pretrial agreement says that it is binding from the moment the pretrial agreement is accepted by the convening authority on both the accused and the government.

[02:53:43] Speaker 09:
And as they noted, it is not a forbidden term

[02:53:47] Speaker 09:
to limit the ability of the government to withdraw from a pretrial agreement.

[02:53:52] Speaker 09:
They could have negotiated for a window.

[02:53:54] Speaker 09:
They could have negotiated to say only performance after this agreement will count for 705 purposes.

[02:54:02] Speaker 09:
Instead, they concluded an agreement that said the moment this is signed to include this stipulation of fact,

[02:54:11] Speaker 09:
that this is binding on the government henceforth.

[02:54:14] Speaker 09:
And that's what they did.

[02:54:16] Speaker 09:
They don't like that now.

[02:54:17] Speaker 09:
We understand that they have compelling reasons to not like that.

[02:54:21] Speaker 09:
But there were many opportunities that they could have exploited long before entering into this pre-trial agreement or to include into the pre-trial agreement itself that could have avoided them having to come to you at this late date.

[02:54:36] Speaker 07:
Can you, Monjay, 149.

[02:54:42] Speaker 07:
Um, I assume this is a call is speaking here.

[02:54:47] Speaker 11:
I think that is, uh, yes, correct.

[02:54:50] Speaker 11:
Your honor.

[02:54:52] Speaker 07:
He says line 16 17.

[02:54:56] Speaker 07:
Um, we're going back to what we were doing last week.

[02:55:00] Speaker 06:
Um, council don't need to be present.

[02:55:03] Speaker 06:
You're obviously welcome to, um, so

[02:55:12] Speaker 06:
What does he mean by what we were doing last week?

[02:55:15] Speaker 09:
He's referring to Friday when the defense teams are forbearing.

[02:55:19] Speaker 09:
And that from participating in the proceedings, questioning witnesses, or having anyone other than.

[02:55:25] Speaker 07:
Are they allowed, if only Mr. Ali had filed the suppression motion, does it work in these military commission cases that other defense counsel can show up and question witnesses for other defendants who didn't file the motion?

[02:55:42] Speaker 09:
The rule is that all motions filed are automatically joined by co-defendants unless they actively unjoin those motions.

[02:55:49] Speaker 07:
So my hypothetical, let's imagine there's only a motion by Mr. Elliott to suppress.

[02:55:54] Speaker 07:
That's a hearing on his witness.

[02:55:57] Speaker 07:
Do other counsel have a right to show up and question that witness?

[02:56:01] Speaker 09:
I generally do not think so.

[02:56:03] Speaker 09:
No, they might be able to object to assert individual rights that come along.

[02:56:08] Speaker 08:
But even to be there to observe, to observe.

[02:56:11] Speaker 09:
Correct.

[02:56:12] Speaker 09:
But I would say if nothing else, that is probably tackling me to the ground.

[02:56:22] Speaker 09:
Yeah, this motion was jointly filed.

[02:56:25] Speaker 09:
They just wanted to be clear.

[02:56:26] Speaker 09:
Yeah, I thought that.

[02:56:27] Speaker 08:
That's basically where we were last week, what he meant by where we were last week.

[02:56:30] Speaker 09:
But why I think that actually cuts significantly against the government in this context is because the rule isn't substantially performed to your prejudice, performed fully.

[02:56:42] Speaker 09:
It's begun to perform.

[02:56:44] Speaker 09:
And to the extent withdrawing the motion to suppress, part of beginning performance on that promise was to not question witnesses and to then, henceforth, treat it as only the motion of an individual defendant, which would ordinarily be the course when you did not or otherwise withdrew from a motion.

[02:57:02] Speaker 09:
I think, again, it's just evidence that certainly Colonel McCall understood in the hurly burly of a trial process to be performance, at least in the very beginning.

[02:57:11] Speaker 07:
So much of this will speak to me.

[02:57:15] Speaker 07:
The next page, 150 lines 14 to 16.

[02:57:19] Speaker 07:
This is Mr. Sowards.

[02:57:22] Speaker 07:
Who does he defend?

[02:57:23] Speaker 09:
No, he's in Guantanamo right now.

[02:57:28] Speaker 07:
He's a defendant, Mr. Sowards.

[02:57:29] Speaker 09:
No, Mr. Sowards is the representative learned counsel for Mr. Muhammad.

[02:57:34] Speaker 07:
Okay, so he says.

[02:57:35] Speaker 07:
to the judge.

[02:57:36] Speaker 07:
You had mentioned before on August 2nd that you compared this to the arrangement that we have with Mr. Brooke on behalf of Mr. Binalchi.

[02:57:48] Speaker 07:
What was that arrangement?

[02:57:49] Speaker 07:
Of course, the judge just says no.

[02:57:51] Speaker 07:
But I'm just trying to understand the framework.

[02:57:55] Speaker 07:
Thinking about what the judge was doing.

[02:57:57] Speaker 09:
So Mr. Benalsheib had been severed from the case due to mental incompetence.

[02:58:02] Speaker 09:
And so that's why earlier when Mr. Connell was having the colloquy with Colonel McCall about severance, and Mr. Benalsheib, you'll see his name pop up a number of times.

[02:58:13] Speaker 09:
That's what they're talking about.

[02:58:14] Speaker 09:
It's like, is this actually a severing of the trial?

[02:58:16] Speaker 09:
Are we now treating?

[02:58:17] Speaker 07:
um essentially right there's things well what was the arrangement they had with mr brock on behalf of mr binalchi

[02:58:27] Speaker 09:
So I believe Mr. Brock and I can be corrected by my counsel, but they could have someone at council table to essentially observe the proceedings, given the fact that if nothing else, Mr. Ben Al-Shaib had been a defendant in that case and was still certainly under jeopardy.

[02:58:41] Speaker 09:
He's still charged under that case.

[02:58:43] Speaker 09:
He's just presently incompetent to stay in charge.

[02:58:45] Speaker 07:
All right.

[02:58:45] Speaker 07:
So what at least counsel for Mr. Muhammad is saying the arrangement we agreed to last week was we get to sit there and observe.

[02:58:56] Speaker 09:
Yes, so basically, and Colonel McCall explains this a little further as this particular hearing goes on.

[02:59:03] Speaker 09:
He says he would like to have essentially at least one lawyer from each defense team in court, primarily so that there's a lot.

[02:59:10] Speaker 09:
He says at one point, so we have a line of communication to one another.

[02:59:13] Speaker 09:
And to be clear, and I think this is actually a legally significant point, even though it's not evident necessarily from the record.

[02:59:21] Speaker 09:
is that in all of those subsequent hearings, the person, the body at the table in these hearings on behalf of the respondents in this case, has not been the actual learned counsel, which is a specific requirement of the Military Commissions Act, military law.

[02:59:37] Speaker 07:
But on the next page, then, on 154, and he says, this is the judge speaking now.

[02:59:42] Speaker 07:
Because he said, no, this isn't that situation.

[02:59:45] Speaker 07:
He said, this is like when Mr. Ruiz, who I think is one of the defense counsels,

[02:59:50] Speaker 09:
Uh, yes.

[02:59:51] Speaker 07:
Or I think you can see for Mr. For Mr. Hussow.

[02:59:56] Speaker 09:
He's learning council.

[02:59:58] Speaker 07:
And there's a reference to this in the prior here in the August one hearing as well that something rose up Mr. Reese because couldn't get down for a session.

[03:00:06] Speaker 07:
Um, and they were going to be arguing something and just allowed his team to not participate in those arguments and do it later.

[03:00:14] Speaker 07:
Right.

[03:00:15] Speaker 10:
Yes.

[03:00:16] Speaker 07:
And that maps on to what Judge McCall said on August 1 of, okay, you're just not part of this right now.

[03:00:25] Speaker 07:
And if the need arises, you'll participate in it later.

[03:00:28] Speaker 07:
So this is what Mr. McCall again is saying, Judge McCall, excuse me, is saying he understood the arrangement on August 1 to be

[03:00:38] Speaker 07:
that y'all are not participating, because we got to sort out a lot of things here.

[03:00:44] Speaker 07:
So we're turning it into the Mr. Ali-only hearing, at which point you then would not be forbearing.

[03:00:51] Speaker 09:
Well, to be clear, it's to treat.

[03:00:54] Speaker 09:
So what he's talking about, specifically with Mr Wheeze is Mr Wheeze was not present.

[03:00:58] Speaker 09:
Mr Wheeze is the learned counsel for Mr Hisawe.

[03:01:01] Speaker 09:
So he is he's statutorily required to be present during all of the hearings.

[03:01:04] Speaker 07:
Right.

[03:01:04] Speaker 07:
And that's why he said he said this again on August 1st and he's saying it again here.

[03:01:07] Speaker 07:
This is what he thought he was setting up on August 1st.

[03:01:10] Speaker 07:
And that is that is

[03:01:13] Speaker 07:
need to be there then you know what then we're just that case is not severing the cases which is a bigger permanent of course yeah what i'm doing is just turning this into not that defendant's day in court um

[03:01:29] Speaker 07:
Mr. Ali's day in court on the suppression hearing.

[03:01:32] Speaker 07:
I'm just setting those aside.

[03:01:34] Speaker 07:
A matter of, you know, judges could do this.

[03:01:38] Speaker 07:
I could say for a variety of reasons, but I say, so today now it's only a one-person suppression motion.

[03:01:43] Speaker 07:
And this is where he's once again saying, that's what I'm doing.

[03:01:45] Speaker 07:
It's not that you're not allowed to be here.

[03:01:48] Speaker 07:
It's not that you're not allowed to do something.

[03:01:50] Speaker 07:
It's that we got to sort some things out here.

[03:01:53] Speaker 07:
And so I'm not going to make any decisions

[03:01:56] Speaker 07:
right now, other than to make this only Mr. Ali's day.

[03:02:00] Speaker 07:
But this is a reaffirmation of that because he talks about Mr. Ruiz not being able to come down with airplane flights or whatever it was.

[03:02:05] Speaker 07:
He has the same discussion of the analogy to the Mr. Ruiz case.

[03:02:11] Speaker 06:
on August 1.

[03:02:12] Speaker 09:
Right.

[03:02:13] Speaker 09:
But again, I want to emphasize that ordinarily, and I'm sure my colleague can explain this with more detail just from practical experience than I can.

[03:02:21] Speaker 09:
Ordinarily, not only must learned counsel be present, the accused must either be present or actively waive presence at a given hearing.

[03:02:27] Speaker 09:
And so what this arrangement is, is essentially de facto removing these defendants from the case without issuing formal severance the way they did in Mr. Van Alsheeb's case.

[03:02:39] Speaker 09:
And so if I might, Your Honor, and so to say that it's, well, it's Mr. Ali's day, it's a joint trial.

[03:02:46] Speaker 09:
And so if it's Mr. Ali and only Mr. Ali's day, well, then it's not any of the respondents' day.

[03:02:52] Speaker 09:
And they're essentially being excluded actively from the proceedings.

[03:02:56] Speaker 09:
And so that's.

[03:02:57] Speaker 07:
It's just that it's not their hearing day.

[03:03:00] Speaker 07:
It's not even their day to make motions.

[03:03:01] Speaker 07:
And then on the next page, 152, it says Mr. Forwards, again, the defense counsel, alluding to Mr. Ruiz's analogous situation, I guess you had a family emergency.

[03:03:12] Speaker 07:
So the record is clear that that does not constitute any sort of participation in the proceedings or substantive hearings, merely observers.

[03:03:21] Speaker 07:
So they weren't participating.

[03:03:24] Speaker 07:
They just weren't participants in the hearing.

[03:03:26] Speaker 07:
on August 1 because the judge hadn't figured out what was going on yet.

[03:03:30] Speaker 09:
Well because they promised not to participate and the government, well they did and that's how the government.

[03:03:35] Speaker 07:
That would mean it wouldn't be analogous to I can't do anything because a council is not here so we're just going to put that person's part of the trial aside today.

[03:03:47] Speaker 07:
Today won't be their day of trial.

[03:03:50] Speaker 07:
Because their attorneys on your attorney has to be here, it will just be this other person's day of trial, which point you don't have a right.

[03:04:00] Speaker 09:
Make objections and things like that, but no, that's just for that's not really what's being contemplated here, but moreover, I that's that would be impermissible under the rules precisely because.

[03:04:10] Speaker 09:
The rules very clearly state that not only must the accused and their learning counsel be present at every hearing involving that accused, otherwise they're in like a getters lack of counsel situation.

[03:04:22] Speaker 07:
But that wouldn't apply if, in fact, my question of Mr. Ali alone had filed a suppression motion.

[03:04:27] Speaker 07:
Mr. Ali alone had filed it.

[03:04:29] Speaker 09:
It would.

[03:04:29] Speaker 09:
All proceedings must be attended by all defendants unless there is a specific motion to proceed either ex parte or in... They're all co-defendants in a single proceeding?

[03:04:38] Speaker 09:
That's correct.

[03:04:39] Speaker 09:
And again, I just want to foot stomp the next word out of Colonel McCall's mouth when Mr. Southerns, very much again, looking at the obligations under the pretrial agreement as understood, as explicitly stated at the August 1st hearing, he says that we want to make sure that nothing we're doing is construed as any sort of participation essentially because that would violate our obligations under the pretrial agreement.

[03:05:05] Speaker 09:
And Colonel McCall says, sure.

[03:05:07] Speaker 09:
This isn't ambiguous what's happening and why people are doing what they're doing.

[03:05:15] Speaker 09:
They're forbearing from performing because they're obligated to forbear from participating.

[03:05:23] Speaker 09:
I'm sorry.

[03:05:23] Speaker 09:
I just.

[03:05:24] Speaker 05:
I think we should hear from Mr. Anfield.

[03:05:27] Speaker 07:
I'm sorry.

[03:05:29] Speaker 07:
I apologize.

[03:05:29] Speaker 07:
Before that, can I just ask you a question?

[03:05:32] Speaker 07:
Statutory question.

[03:05:34] Speaker 09:
I'm eager for a mundane statutory question.

[03:05:38] Speaker 07:
So this is 950.

[03:05:42] Speaker 07:
I get it.

[03:05:46] Speaker 07:
950 G. Sorry.

[03:05:47] Speaker 07:
So this is about whether the government could appeal.

[03:05:51] Speaker 07:
I'm looking at A and use some help understanding your view on it.

[03:05:58] Speaker 07:
We have exclusive jurisdiction over a final judgment rendered by a military commission, parentheses, as approved by the convening authority.

[03:06:11] Speaker 07:
And I know there's this whole procedure that the convening authority gets to look at final judgments and essentially ratchet down but not up.

[03:06:17] Speaker 09:
Generally, it's the equivalent of entry of a final judgment by a district court.

[03:06:24] Speaker 07:
They can't increase punishments or anything like that.

[03:06:26] Speaker 09:
Or no, no, no, that's not, yes, that's correct.

[03:06:30] Speaker 07:
Would the, as approved by the convening authority be met if the convening authority opposed the entry of the plea and the entry of final judgment?

[03:06:43] Speaker 09:
I want to make sure I understand your question.

[03:06:45] Speaker 07:
So this is presumably something not foreseen by Congress when writing that.

[03:06:53] Speaker 07:
But there's a process where after, even after the military judge would impose sentence and would ordinarily be sort of final judgment in a civilian court, the convening authority has to sign off and could even adjust down, but not up.

[03:07:05] Speaker ?:
That's correct.

[03:07:06] Speaker 07:
Okay.

[03:07:08] Speaker 07:
But we're now in a situation where

[03:07:12] Speaker 07:
If we were to go forward under the theory that the government could appeal later, the convening authority, presumably now under new instructions, would be standing there saying, no, no, don't agree, don't agree, don't agree, don't agree, and presumably wouldn't approve the final judgment.

[03:07:34] Speaker 07:
Could the convening authority just not

[03:07:36] Speaker 09:
to essentially pocket veto the final judgment approval.

[03:07:41] Speaker 07:
Yeah, I don't know what happens.

[03:07:43] Speaker 09:
That has not happened so far as I'm aware.

[03:07:45] Speaker 09:
The closest analog.

[03:07:49] Speaker 09:
None of this has happened before.

[03:07:50] Speaker 09:
But the closest analog, and I can offer this potentially for whatever guidance it's worth, is there have been circumstances where the convening authority has approved final judgment.

[03:07:59] Speaker 09:
but has not then taken the step of referring the case automatically to the Court of Military Commission review because the way the appellate scheme is structured, the Court of Military Commission review appeals are actually automatic.

[03:08:13] Speaker 09:
They're essentially part of the process and the committee authority essentially once finalization happens has to sort of ministerially sign over the record to the CMCR.

[03:08:21] Speaker 09:
And there have been circumstances involving pleas where for one reason or another the defendant did not actually sign the

[03:08:28] Speaker 09:
waiver of appeal in the CMCR.

[03:08:30] Speaker 09:
And the convening authority nevertheless essentially pocket vetoed the record and refused to turn it over to the CMCR.

[03:08:36] Speaker 09:
I believe this actually came up in the Cotter case, in which I believe Your Honor was on Judge Wilkins.

[03:08:43] Speaker 09:
And the way that that has thus far been resolved, for whatever it's worth,

[03:08:48] Speaker 09:
is the court of military commission review actually did issue a writ of mandamus to the convening authority because there it was a ministerial act to refer the record of trial to the court of military commission review so that if we were in a the theory here i think is it doesn't go through the court of military commission review it's that the government would come straight here on appeal is that right that was how i understood the arguments um well certainly nine we're going to have to mandamus a convening authority to approve

[03:09:16] Speaker 09:
that judgment that it says heck no we don't yeah that's where we are we're a bit down a garden path but if for if you if you had it no i i i i'm just doing my best with the with something that doesn't have a lot of um historical support board but i do think if there was a situation where a community authority was essentially pocket feeding

[03:09:38] Speaker 09:
the final action, I think mandamus probably would be both available and probably appropriate in those circumstances because it's a non-discretionary act.

[03:09:49] Speaker 09:
There is discretion embedded in the final judgment they make, but the entry of the judgment itself, that is sort of traditional obstructing the higher court's jurisdiction, sort of an in ray United States, the long ago in ray United States

[03:10:04] Speaker 09:
uh scenario where a lower court is just refusing to act and um there'd be a flip problem that if the convening authority did approve it that that would then stop the government from challenging the final judgment that was approved um i i i have to both approve it and and say it was unlawful i i don't um i don't think so and again we're we're in an area of uncertainty but i don't think so because there the question would be has the convening

[03:10:34] Speaker 09:
is the judgment itself lawful?

[03:10:37] Speaker 09:
And that very much can turn on whether or not the convening authority behaved in a lawful or abused to their discretion in some form or another.

[03:10:44] Speaker 09:
And so the convening authority's actions are not immune from review.

[03:10:47] Speaker 09:
It's just that those actions are the trigger ultimately for the jurisdiction of the court and then first for the CMCR, but assuming CMCR is waived, which is required under the PTA, then any sort of petition for review in this court.

[03:10:59] Speaker 07:
the government be able to clarify that their view on that how that would work.

[03:11:03] Speaker 10:
Okay.

[03:11:04] Speaker 07:
Yeah, I hope that when you when you're out as well, I think do you have more questions?

[03:11:09] Speaker 07:
Sorry.

[03:11:09] Speaker 07:
Thank you for your patience.

[03:11:10] Speaker 11:
Thank you.

[03:11:14] Speaker 07:
Hey, Mr. Engel, can't promise your six minutes will only be six minutes.

[03:11:36] Speaker 00:
May it please the court.

[03:11:37] Speaker 00:
My name is Matthew Engel.

[03:11:38] Speaker 00:
I represent Waleed Binatash, one of the three men who signed the pretrial agreements on July 29th.

[03:11:45] Speaker 00:
I want to focus on the merits, as we did in our brief, and particularly the fact that the secretary had no clear and indisputable right to withdraw.

[03:11:55] Speaker 00:
One thing we all agree on here is that rule 705 does apply and does limit the convening authority of the secretary

[03:12:03] Speaker 00:
at the government writ large ability to withdraw and that they cannot withdraw under that rule once the accused begins performances, begins performance of the promises in the pretrial agreement.

[03:12:14] Speaker 00:
And there are two points I was hoping to make about that standard before sort of getting into the facts.

[03:12:20] Speaker 00:
And the first point is that beginning performance is by design a very low standard.

[03:12:27] Speaker 00:
Occasionally, I have heard the government sort of slip into arguments about prejudice and detrimental reliance.

[03:12:33] Speaker 00:
They did it in their briefing.

[03:12:35] Speaker 00:
They did it this morning.

[03:12:36] Speaker 00:
That is not the standard.

[03:12:38] Speaker 00:
That has been rejected as the standard, both by the drafters of Rule 705, when they created in the UCMJ, in the court martial system, they created the Rule 705, which then got adopted into the military commissions.

[03:12:54] Speaker 00:
They said they were doing that specifically to create a clearer line of when the right to withdraw ends and that it was no longer detrimental reliance.

[03:13:07] Speaker 00:
And I've listened to hours of argument about this case today and I haven't heard anybody talk about the Dean decision.

[03:13:13] Speaker 00:
And I really want to emphasize the United States versus Dean case that we cite and rely on extensively in our brief.

[03:13:20] Speaker 00:
Because in that case, a four to one decision in the Court of Appeals for the Armed Forces, the highest military court in the country interpreting the verbatim language out of RMC 705, they were interpreting the court martial version.

[03:13:37] Speaker 05:
He is not binding on this court.

[03:13:38] Speaker 00:
binding but I'm going to articulate why I think it should be incredibly persuasive to this court because it is the highest military court in the land and they were interpreting the exact same language that we have at issue here and what Kaft said indeed is that the government concedes and we agree that the accused must only show detrimental reliance only if he did not begin performance on the agreement so

[03:14:04] Speaker 00:
Let's put that aside.

[03:14:06] Speaker 00:
Let's not focus on detrimental reliance.

[03:14:07] Speaker 00:
That is not the standard.

[03:14:10] Speaker 00:
The second reason I think that the Dean, the second point I wanted to make about the standard and the reason I think Dean is entitled to great respect is that it is a military court interpreting military rules.

[03:14:21] Speaker 00:
There is no analog to RMC 705 in the Article III system.

[03:14:26] Speaker 05:
So in Dean, though, there were other acts of performance.

[03:14:29] Speaker 00:
There were three acts of performance identified in Dean.

[03:14:32] Speaker 00:
Two of those acts took place before the convening authority accepted the pretrial agreement.

[03:14:39] Speaker 05:
Dean doesn't provide any reasons for why something that occurred before an agreement was entered into could count as performance, which is a principle that is contrary to basic contract law.

[03:14:52] Speaker 00:
I don't think, I don't think it is.

[03:14:53] Speaker 00:
And I think this has been fleshed out quite a bit already this morning, but I'll just sort of throw my two cents in on top of that, which is, you know, the, the, the actual language of the pretrial agreement.

[03:15:04] Speaker 00:
Um, I think this is important.

[03:15:05] Speaker 00:
This is, and this is not under seal.

[03:15:07] Speaker 00:
It's in paragraph six of our pretrial agreement.

[03:15:09] Speaker 00:
This is what it says.

[03:15:10] Speaker 07:
Give me a second to get there.

[03:15:11] Speaker 07:
Yes, your honor.

[03:15:12] Speaker 00:
It's in the seal.

[03:15:19] Speaker 00:
Yes, your honor.

[03:15:19] Speaker 00:
Paragraph six is what I'm about to read from.

[03:15:21] Speaker 07:
That is unsealed, okay?

[03:15:23] Speaker 00:
Yes, it is.

[03:15:25] Speaker 00:
The accused agrees to enter into the stipulation of fact included as attachment A to the pretrial agreement.

[03:15:33] Speaker 00:
He understands that he has an absolute right to refuse to enter into the stipulation of fact.

[03:15:39] Speaker 00:
However, he knowingly and voluntarily agrees to enter into the stipulation of fact.

[03:15:45] Speaker 00:
He understands that failure to enter into a stipulation of fact

[03:15:49] Speaker 00:
is a breach of a material term of the agreement.

[03:15:52] Speaker 00:
This is all forward-looking.

[03:15:54] Speaker 00:
This is all saying this is this is a PTA and a binding agreement entered into by Mr. Benatosh and by the convening authority.

[03:16:02] Speaker 05:
Even though paragraph six uses forward-looking language, the actual the actions of the government

[03:16:10] Speaker 05:
and the parties here were that they entered into the stipulation of fact before the agreement was signed.

[03:16:16] Speaker 05:
So this language does look forward.

[03:16:19] Speaker 05:
But when you look at attachment A, it's already been.

[03:16:22] Speaker 05:
executed, that the stipulation of fact has already been signed and agreed to.

[03:16:26] Speaker 00:
Absolutely.

[03:16:28] Speaker 00:
I'm with you 100%, which is exactly what happened in Dean.

[03:16:31] Speaker 00:
And what I will say is that it is the government who insisted on us signing the stipulation of fact before they would endorse the agreement.

[03:16:40] Speaker 05:
So under ordinary contract principles, pre the signing of something, the performance or pre-performance becomes part of the offer of the contract.

[03:16:52] Speaker 05:
It's not a promise for future action.

[03:16:54] Speaker 00:
But this case is not governed by contract law.

[03:16:56] Speaker 00:
This case is governed by Rule 705, which talks about beginning performances of promises in the PTA.

[03:17:03] Speaker 00:
Now the government can say, as it did in this case, we want those PTAs locked in up front.

[03:17:08] Speaker 00:
I think Your Honor Judge Wilkins made this point.

[03:17:10] Speaker 00:
We don't want any dispute about those down the road.

[03:17:12] Speaker 00:
We want them here and now, today, black and white, signed, locked and loaded.

[03:17:17] Speaker 05:
And so it's no longer a promise.

[03:17:18] Speaker 05:
It's already been done.

[03:17:19] Speaker 00:
It is a promise.

[03:17:20] Speaker 00:
It is a promise.

[03:17:21] Speaker 00:
It's a promise that has already been fulfilled.

[03:17:23] Speaker 00:
And that means that once the convening authority accepts the PTA, which she did, and signs it, and it becomes binding on the parties, it is a promise that has been fulfilled, which I believe, Judge Millett, you were getting at that point earlier.

[03:17:40] Speaker 00:
It springs into existence.

[03:17:42] Speaker 00:
It's already there.

[03:17:43] Speaker 00:
That's exactly what happened.

[03:17:45] Speaker 00:
I see that I'm over time.

[03:17:46] Speaker 00:
I just want to make sure that I have the court's permission to continue.

[03:17:48] Speaker 00:
Yes, please.

[03:17:51] Speaker 00:
That's exactly what happened here.

[03:17:53] Speaker 00:
The government is worried about maintaining its window or its safe harbor provision or whatever it wants to call it.

[03:17:59] Speaker 00:
Well, it can do that.

[03:18:01] Speaker 00:
All it has to do is not require the stipulation of fact to be signed prior to acceptance of the PTA.

[03:18:07] Speaker 00:
There's nothing in the rules that requires that to happen.

[03:18:10] Speaker 00:
There's nowhere anywhere in the MCA or in any of the rules or regulations that says the PTA should be done upfront.

[03:18:16] Speaker 00:
They wanted that they insisted on that.

[03:18:18] Speaker 00:
So we complied with that.

[03:18:20] Speaker 00:
What they can't do is have their cake and eat it too.

[03:18:22] Speaker 00:
What they can't do is say we're going to make you promise you're going to have to make this promise and we're going to require you to do up front and we're going to keep that window of withdrawal becomes part of the offer of the respondents.

[03:18:35] Speaker 05:
Because the government wouldn't enter into these pretrial agreements without the stipulation of facts.

[03:18:41] Speaker 05:
So it becomes part of the offer.

[03:18:43] Speaker 05:
Signing the stipulation of facts is part of the offer.

[03:18:45] Speaker 05:
It's not part of the performance.

[03:18:48] Speaker 00:
I don't agree that it can't be both of those things, Your Honor.

[03:18:50] Speaker 00:
It's a promise.

[03:18:51] Speaker 05:
How can something be in basic contract law, both an offer and performance?

[03:18:56] Speaker 00:
Again, one of my goals up here today, Your Honor, is to get us away from contract analogies.

[03:19:02] Speaker 00:
This is not a contract case.

[03:19:04] Speaker 00:
This is a Rule 705 case.

[03:19:07] Speaker 00:
So the question is, how can something be both the fulfillment of a promise and something that's already occurred?

[03:19:14] Speaker 00:
Well, Dean says it can be.

[03:19:17] Speaker 00:
In fact, Dean says that it is.

[03:19:19] Speaker 00:
And that is a holding that really is entitled to a great deal of deference in this court.

[03:19:24] Speaker 05:
So when we review a pretrial agreements interpretation de novo, we shouldn't apply ordinary contract principles.

[03:19:31] Speaker 05:
We should just look to CAF

[03:19:33] Speaker 00:
I actually don't think there's any de novo review here at all.

[03:19:36] Speaker 00:
That's something I want to take issue with.

[03:19:37] Speaker 00:
I think this court should be looking at this petition under a doubly differential standard of review.

[03:19:43] Speaker 00:
First, because the government has elected to proceed by way of writ of mandamus, which requires a clear and indisputable right, among other standards.

[03:19:52] Speaker 00:
But secondarily, as I started to say, because this is a question that is unique to military justice.

[03:19:59] Speaker 00:
And we cited in our brief,

[03:20:03] Speaker 00:
Footnotes 66 and 68, page 21 of our brief, two Supreme Court cases, Noyde versus Bond and Middendorf versus Henry, that talk about the federal courts should be deferential to military courts when interpreting provisions which have no analogs in civilian jurisprudence.

[03:20:22] Speaker 00:
That's where we are, Your Honor.

[03:20:23] Speaker 00:
That's where we are.

[03:20:25] Speaker 00:
We are dealing here with a provision of military law that has no analog in

[03:20:30] Speaker 00:
in Article 3, has no article in, I'll tell you, the Virginia state courts where I practiced for a long time.

[03:20:35] Speaker 00:
This is a military rule.

[03:20:37] Speaker 00:
So when the CAF, the highest military court in the land, says a promise can be fulfilled even if that action takes place before the PTA is executed, that should carry a lot of weight with this court because they are interpreting the military law.

[03:20:54] Speaker 00:
And so that's why I talk about this as sort of a doubly deferential standard that I asked this court to apply.

[03:21:02] Speaker 07:
The Dean didn't say that ordinary principles of contract law don't apply.

[03:21:05] Speaker 07:
It was just interpreting how there was performance in that case.

[03:21:11] Speaker 07:
It doesn't seem to me them saying we reject all application of general contract principles on, for example, when the contract was formed.

[03:21:20] Speaker 00:
And I apologize if I made it sound as though I was saying a contract law could never apply to here.

[03:21:26] Speaker 07:
You just said this is not a contract case.

[03:21:27] Speaker 07:
This is a Rule 705 case.

[03:21:28] Speaker 07:
And I don't know what to do with a Rule 705 case if we aren't interpreting.

[03:21:32] Speaker 07:
And maybe I... Or there was an agreement.

[03:21:34] Speaker 00:
Maybe I overstated it.

[03:21:35] Speaker 00:
What I should say is our claim is not grounded in contract law.

[03:21:38] Speaker 00:
It's grounded in Rule 705.

[03:21:40] Speaker 00:
What Dean specifically did reject is the application.

[03:21:43] Speaker 07:
This is not unlike.

[03:21:46] Speaker 07:
There's some wording similarities, including the absence of substantial performance.

[03:21:50] Speaker 07:
I get that.

[03:21:51] Speaker 07:
But this is not alien to contract law.

[03:21:53] Speaker 07:
This is what counts as formation, what counts as agreement, what counts as a performance before someone can withdraw.

[03:21:59] Speaker 07:
And so I don't understand even, I still don't understand why you're saying this is a rule 10.05 case, other than that, you know, no substantial performance is required.

[03:22:08] Speaker 07:
This is just, we're just looking to see if there's beginning of performance.

[03:22:11] Speaker 00:
That's exactly right.

[03:22:12] Speaker 00:
Beginning of performance.

[03:22:13] Speaker 00:
I think the reason I'm saying that, Your Honor, is because we're not really in dispute about the other, about offer and acceptance and consideration and all sort of all the contract law stuff.

[03:22:21] Speaker 07:
I was asking some questions and I had earlier about when did the contract come into existence and how did that timing map on to when the proposed stipulation of fact became the stipulation of fact.

[03:22:37] Speaker 00:
Yeah, and to put precise dates on that, the contract by its own terms became binding when it was accepted by the convening authority.

[03:22:45] Speaker 00:
That was July 31st of 2024.

[03:22:48] Speaker 00:
So I know there's been a lot of back and forth about the sequence of events.

[03:22:54] Speaker 07:
So July 31st is when the convening authority signed.

[03:22:57] Speaker 07:
Yes.

[03:22:59] Speaker 07:
But then the agreement obligates the defendants to enter into

[03:23:04] Speaker 07:
Among other things, lots of things as relevant here entered into a stipulation of facts and failure to do so will breach the agreement.

[03:23:15] Speaker 07:
And so it assumes that there's something that's going to be done when there is already an agreement.

[03:23:23] Speaker 07:
that could breach it and that could be not entering into a stipulation of facts.

[03:23:29] Speaker 07:
But if the whole premise of the agreement is that the stipulation of facts is fully entered into the moment an agreement is born, why would there then be an obligation to enter into a stipulation of facts under the agreement and not doing so would be a breach of the agreement?

[03:23:48] Speaker 07:
How can you breach something

[03:23:50] Speaker 07:
that exists, that is fully performed at the moment the agreement is formed.

[03:23:55] Speaker 07:
How could there ever be a breach?

[03:23:57] Speaker 00:
Oh, many ways.

[03:23:58] Speaker 00:
Okay.

[03:23:59] Speaker 00:
Many ways.

[03:24:00] Speaker 00:
And one of them, if I don't think, I think I stopped reading before I got to this part of paragraph six,

[03:24:05] Speaker 00:
But what it goes on to say is that the accused understands he may not ordinarily attack, contradict, or otherwise challenge his stipulation of fact.

[03:24:15] Speaker 00:
Again, that's a forward-looking promise.

[03:24:17] Speaker 07:
I know, but I'm talking about the phrase, enter into a stipulation of fact.

[03:24:21] Speaker 07:
And the sentence that says, failure to enter into a stipulation of fact is a breach.

[03:24:27] Speaker 07:
I'm not talking about attacking.

[03:24:28] Speaker 07:
That comes after this.

[03:24:30] Speaker 07:
Tell me how these sentences make sense if it's fully accomplished at the moment the agreement is formed.

[03:24:35] Speaker 00:
Because we have fulfilled our promise at that point.

[03:24:38] Speaker 07:
Because we can just cross out, he understands that a failure to enter into a stipulation fact is a breach of material terms of agreement, because that can never happen.

[03:24:47] Speaker 00:
Well, it can happen in every other case except one in which the government has required us to satisfy that.

[03:24:54] Speaker 00:
That's right.

[03:24:55] Speaker 07:
Well, then why is it here?

[03:24:57] Speaker 07:
Don't talk about other contracts.

[03:24:59] Speaker 07:
In this very contract, it sounds like the argument is

[03:25:03] Speaker 07:
that he fulfilled his duty, his obligation, to enter into a stipulation of fact the moment the Convenient Authority signed off and his counsel didn't throw a body across the papers and say don't sign.

[03:25:19] Speaker 07:
But at that moment, once the Convenient Authority assigned, he was all done performing his duty to enter into a stipulation of fact.

[03:25:28] Speaker 07:
Is that correct?

[03:25:28] Speaker 00:
Yes, that provision was satisfied.

[03:25:30] Speaker 07:
Then why would we say in this very same contract that is predicated on that performance being completed, the moment agreement is created, that there could ever then be a breach of that failure to enter into it?

[03:25:44] Speaker 00:
Because we're talking about two different things here, right?

[03:25:45] Speaker 00:
We're talking about the PTA, which is signed between Mr. Benatosh and the convening authority, in which he promises to enter into a PTA.

[03:25:52] Speaker 00:
Meanwhile, there's the actual stipulation.

[03:25:56] Speaker 00:
I think I might have misspoke there.

[03:25:58] Speaker 00:
Meanwhile, there's the actual stipulation, which is negotiated and signed by Mr. Benatosh and trial counsel.

[03:26:03] Speaker 00:
Convening authority doesn't sign the stipulation of fact.

[03:26:06] Speaker 00:
Convening authority signs only the pre-trial agreement.

[03:26:09] Speaker 07:
So the government just said, and I think this has to be right, just reading the plain text here, that given the last two paragraphs of 62, complete agreement, including those addenda, is that when the convening authority signed the agreement, it was the same as signing

[03:26:25] Speaker 07:
the stipulation of facts.

[03:26:29] Speaker 00:
No, I don't think I agree with that.

[03:26:31] Speaker 07:
The committee authority is not bound by the stipulation of facts?

[03:26:33] Speaker 00:
The committee authority is not a party to the stipulation of facts.

[03:26:36] Speaker 00:
The committee already has accepted the stipulation of facts.

[03:26:38] Speaker 07:
Well, they accepted the contract in which that is expressly a part of the agreement and is brought in fully as a part of the agreement.

[03:26:44] Speaker 07:
I don't know how you can sign an agreement and say this attachment is fully a part and hereby incorporated into this agreement and say, not part of my agreement.

[03:26:56] Speaker 00:
For example, we could have submitted an unsigned stipulation of fact as attachment A to the pretrial agreements.

[03:27:04] Speaker 00:
And we could have said, we hammered this out just like we actually did, spent years going back and forth and revising.

[03:27:10] Speaker 00:
I mean, it was a process.

[03:27:13] Speaker 00:
But instead of executing it on July 29, which is what we did,

[03:27:16] Speaker 00:
Well, because that's what the government required us to do.

[03:27:18] Speaker 00:
We could have just sent that up to the convening authority as Exhibit A, along with the promise to enter into that stipulate, that precise stipulation of fact, right?

[03:27:29] Speaker 07:
Attachment A. I mean, so I get it's a theoretical matter you could have, but I thought you said earlier that's not how they wanted it.

[03:27:35] Speaker 07:
They insisted.

[03:27:36] Speaker 07:
So you couldn't have just done that under this agreement.

[03:27:39] Speaker 07:
That's how they insisted this agreement would work.

[03:27:41] Speaker 07:
And yet the agreement textually envisions a breach that can happen after the agreement is formed.

[03:27:47] Speaker 07:
And no one can tell me what that breach, a breach by failing to enter into a stipulation of fact, and no one can tell me what that breach would be.

[03:27:53] Speaker 00:
And I think the only point I'm trying to make to your honor is that there is another way that this could have played out.

[03:27:58] Speaker 00:
And I get your point.

[03:27:59] Speaker 00:
That's not what happened here.

[03:28:01] Speaker 00:
Totally agree with you on that.

[03:28:02] Speaker 00:
But there is another way this could have played out, which is that we could have and had been with.

[03:28:07] Speaker 07:
Hypothetically, but not literally.

[03:28:09] Speaker 00:
Hypothetically, but not literally.

[03:28:11] Speaker 00:
OK.

[03:28:11] Speaker 00:
Yes, there is a way that this could have played out that would have required Mr. Benatosh to sign the pretrial.

[03:28:15] Speaker 07:
That would have been a much easier case for me.

[03:28:17] Speaker 00:
Yes, well.

[03:28:19] Speaker 07:
That's not helping me.

[03:28:19] Speaker 00:
I don't know if it would have been easier for me or not.

[03:28:21] Speaker 00:
But I'll stew over that one for a while.

[03:28:23] Speaker 00:
But the bottom line here, and I really just want to come back to this, is that Dean already decided this.

[03:28:30] Speaker 00:
The government isn't arguing anything new here.

[03:28:32] Speaker 00:
Take a look at the dissent in Dean.

[03:28:34] Speaker 00:
It was a 4-1 decision.

[03:28:35] Speaker 00:
One judge agreed with the government.

[03:28:39] Speaker 00:
One judge agreed that you can't perform a promise before the

[03:28:44] Speaker 00:
before the agreement is signed.

[03:28:45] Speaker 07:
I think we're all familiar with Dean and recognize the certain expertise of that court generally, but we're struggling.

[03:28:55] Speaker 07:
It's not binding on us.

[03:28:58] Speaker 07:
We're struggling to reconcile it with just contract law.

[03:29:00] Speaker 00:
But I think it is entitled to great respect.

[03:29:02] Speaker 00:
And the other point I would make about it, Your Honor, is that the government has been on the books since 2009.

[03:29:08] Speaker 00:
This is a 15-year-old decision.

[03:29:10] Speaker 00:
They understood that Dean existed.

[03:29:13] Speaker 00:
as we're negotiating this and we're working out when a stipulation is going to be signed, etc.

[03:29:17] Speaker 00:
They know that the Court of Appeals for the Armed Forces has held that a stipulation of fact signed prior to acceptance of the PTA is beginning a performance under Rule 705, at least under court martial analog, which again is identical to the Military Commission Rule 705.

[03:29:35] Speaker 00:
Um, and one last, I'm sorry.

[03:29:38] Speaker 07:
You have one last point.

[03:29:39] Speaker 00:
Yeah, one last point that I wanted to make on that because I think I heard you Judge Malette say something when I was sitting at council table that thought was really kind of incisive and cut to the heart of this, which is we're flipping through some of the transcript pages.

[03:29:53] Speaker 00:
And I thought I heard you say, this is like Greek to me.

[03:29:56] Speaker 00:
I agree.

[03:29:57] Speaker 00:
You know, I came into the military commissions in June of 2022, and it was like Greek to me, too.

[03:30:02] Speaker 00:
This is foreign stuff.

[03:30:04] Speaker 00:
And I talked to my law partner, who I'm also married to, about this stuff all the time.

[03:30:09] Speaker 00:
And she looks at me like I'm speaking a foreign language.

[03:30:12] Speaker 00:
That's because these are military issues.

[03:30:15] Speaker 00:
That's because Rule 705 is a weird concept for those of us who have practiced in Article III courts and or state courts our whole career.

[03:30:22] Speaker 00:
We don't have an analog to it.

[03:30:24] Speaker 00:
And that's the reason I keep coming back.

[03:30:26] Speaker 00:
And I don't mean to be pedantic about it.

[03:30:28] Speaker 00:
But I do keep coming back to Dean and the importance of Dean.

[03:30:31] Speaker 00:
These issues have been rejected by a court that is immersed in these military standards and issues.

[03:30:40] Speaker 07:
Any questions?

[03:30:42] Speaker 07:
OK.

[03:30:42] Speaker 07:
Thank you.

[03:30:43] Speaker 00:
OK.

[03:30:43] Speaker 00:
Thank you, Rana.

[03:30:43] Speaker 07:
We'll give the government five minutes for rebuttal.

[03:30:46] Speaker 07:
And then after that, we'll have a press reschedule proceeding.

[03:30:56] Speaker 01:
Thank you, Your Honor.

[03:30:57] Speaker 01:
I will not tax the court's patience long.

[03:31:00] Speaker 01:
I think the court has our argument on most of the main points covered.

[03:31:10] Speaker 01:
And I just wanted to address quickly three things and then reiterate my request for an extended stay should the court deny relief.

[03:31:17] Speaker 07:
I don't know that you need to reiterate that.

[03:31:19] Speaker 07:
I think we understand the request.

[03:31:22] Speaker 07:
I will consider it reiterated then.

[03:31:23] Speaker 07:
Save some air time on that.

[03:31:25] Speaker 07:
Thank you, Your Honor.

[03:31:27] Speaker 07:
I will let you make your points, but can you answer my 950G question, 950GA question about the predicate for a government appeal coming here, even let's assume they've all signed their waivers like they're supposed to.

[03:31:46] Speaker 07:
As approved by the convening authority, what happens if the convening authority?

[03:31:51] Speaker 07:
Dissents from the whole darn thing.

[03:31:55] Speaker 07:
The I think be a procedural approval that would bring it here.

[03:31:59] Speaker 01:
I don't know your honor.

[03:32:02] Speaker 01:
The the convening authority has a requirement under section 950 B to take action on the sentence and as as you noted correctly that they can dial it down, but not up.

[03:32:14] Speaker 01:
I think that the world in which this would be relevant is one in which you said he isn't.

[03:32:20] Speaker 01:
Is there a new convenient authority now or I'm sorry she she the the world in which this would be relevant is one in which we have already been ordered by the military judge to abide by the pretrial agreements said we can't withdraw and under that agreement I don't know that the convening authority would be allowed to withhold action as opposed to finishing the process.

[03:32:43] Speaker 01:
This is very uncharted territory.

[03:32:46] Speaker 01:
And I think to the extent that this is offered as an adequate alternative to relief, all of these questions only underscore its inadequacy.

[03:32:55] Speaker 07:
I'm trying to understand about the government's appeal rights, because if the convening authority is a final entry of sentence person, final entry of judgment in these cases,

[03:33:12] Speaker 07:
And given the authority to just reduce charges or reduce sentence that therefore governments never going to appeal based on that, presumably.

[03:33:25] Speaker 07:
I'm just trying to understand how this is, the question is about whether this is an avenue for the government given this special role and what the convening authority would have to do here and whether that would have any consequences for the, it feels kind of, it's almost like a district judge signing off on a magistrate judge's decision and then saying, but I dissent.

[03:33:50] Speaker 07:
And then what are we supposed to do about that?

[03:33:53] Speaker 01:
I'm not sure, Your Honor, and I am not sure that the convening authority, if what we are talking about is a scenario in which the convening authority would violate the military commission's order to abide by the pretrial agreement,

[03:34:11] Speaker 07:
I'm assuming, sorry, this is whether you could appeal later.

[03:34:14] Speaker 07:
So I'm assuming that, so.

[03:34:16] Speaker 07:
We've carried out the pre-trial agreement.

[03:34:19] Speaker 07:
We propose that we could say that you all can review that, you can all challenge this later.

[03:34:25] Speaker 07:
And so then you'd go forward, the court would accept the pleas, presumably with immediate authority of the government standing there saying, you know, we do not, we object, we don't agree.

[03:34:36] Speaker 07:
for the record um and then the then you would go forward and have the whole sentencing hearing and then an entry of sentence by uh seem it's a military judge or is that going to a panel the i believe the the the panel must select the sentence okay has discretion like a jury yes military jury will select the sentence and then

[03:35:02] Speaker 07:
the military, presumably you'll make whatever arguments you make there, and then the military judge will enter that sentence and then refer it to the convening authority to do the final entry?

[03:35:11] Speaker 01:
Yes, and under 950B, the convening authority has to take action on the sentence.

[03:35:16] Speaker 07:
Okay, and so then the convening authority would have to do what, which would then, under the argument, as I understand it, would then get, and then the waivers have been signed, would then allow the government to appeal.

[03:35:31] Speaker 01:
I think the theory here is that the government would, after the waiver, would be allowed to appeal essentially what was its own convening authority's decision entered under duress, more or less.

[03:35:46] Speaker 01:
There are real questions, I think, about whether or not we can do that under the text of 950G.

[03:35:51] Speaker 01:
If the convening authority refused?

[03:35:54] Speaker 01:
If the convening authority refused, I imagine you might see someone back here on a mandamus petition again.

[03:36:01] Speaker 01:
And I am very loathe to endorse a route that involves a government official defying a military judge's order.

[03:36:12] Speaker 01:
If we have been ordered to abide by the agreement, I think that would put the convening

[03:36:19] Speaker 01:
And if we do it, we might lose our appeal rights.

[03:36:22] Speaker 01:
I think we are putting the convening authority in an impossible position.

[03:36:26] Speaker 01:
I don't want to cut off your honor's question, but this relates to one of the points I wanted to make about the adequacy of the highly speculative and potentially inadequate avenues of relief that I think have been posited here.

[03:36:41] Speaker 01:
When my friend on the other side says three years sounds good,

[03:36:44] Speaker 01:
That's pretty quick in the course of things.

[03:36:47] Speaker 01:
I want to make sure the court understands what we are contemplating here, which is that if the court denies relief on the theory that we can appeal on the back end and that we should go through the pretrial agreement steps, go through the sentencing in front of the jury that will select a sentence and then will convening authority and then the waiver and then the appeal.

[03:37:06] Speaker 01:
What we are talking about is victims' families making statements through a process that they want to bring them finality that this court will have said, no, these might not be the final proceedings.

[03:37:20] Speaker 01:
And I am not here to diminish the pain or sincerity of any of the victim families filings in this case, nor do I want to be disrespectful to the sense of betrayal that other victims' families felt at the idea

[03:37:33] Speaker 01:
that the respondents would be allowed to take a plea deal.

[03:37:36] Speaker 01:
What I am saying is that as a matter of both the adequacy of the alternative route and the overall equities of the situation, I urge the court not to defer acting on the underlying merits of the dispute here about the secretary's withdrawal and put everyone through a potential three more years of uncertainty for a proceeding that we think shouldn't happen and that in this hypothetical,

[03:38:02] Speaker 01:
the court would say on the back end should never have happened.

[03:38:06] Speaker 01:
That was one of my three points, but I do have two more.

[03:38:08] Speaker 01:
One's a little more in the weeds, which is I think Mr. Parity referred to paragraph 57.

[03:38:13] Speaker 01:
That paragraph remains under seal.

[03:38:16] Speaker 01:
Oh yeah, okay.

[03:38:20] Speaker 01:
This relates to our request on scheduling.

[03:38:24] Speaker 07:
We'll talk about that in the sealed session.

[03:38:25] Speaker 07:
Do you want to just save your point or do you want to do that now?

[03:38:29] Speaker 01:
But perhaps I just want to say that there are the only J.A., which are as public pages that they cite, I think are J.A.

[03:38:37] Speaker 01:
233 through 235.

[03:38:38] Speaker 01:
It is only the prosecution making a request at those pages.

[03:38:43] Speaker 01:
And the citations I wanted to provide to the court were in respondents later motions to enter to schedule the plea hearings.

[03:38:52] Speaker 01:
This is after the secretary's withdrawal.

[03:38:54] Speaker 01:
They themselves referred to that as the prosecutions or Mr. Trivett's request.

[03:38:59] Speaker 01:
They did not seem to think that it was part of a joint endeavor at that point.

[03:39:02] Speaker 01:
And this is at AE 955C.

[03:39:04] Speaker 01:
AE, this is a pellet exhibit.

[03:39:09] Speaker 01:
It's on the docket of the underlying proceeding.

[03:39:13] Speaker 01:
I can find you the specific pages in a minute.

[03:39:16] Speaker 01:
The other two sites are, because there are three, one for each respondent, AE 956F and AE 957B.

[03:39:28] Speaker 01:
And they describe what happened at those.

[03:39:32] Speaker 01:
I missed the first one.

[03:39:33] Speaker 07:
I got 956F and 957B.

[03:39:35] Speaker 07:
What was the first one?

[03:39:36] Speaker 01:
The first one was 955C.

[03:39:42] Speaker 01:
And it's not hard to find.

[03:39:45] Speaker 01:
It's at pages between one and three of each of these.

[03:39:48] Speaker 01:
They refer to those statements as either the prosecution's request or Mr. Trivet requested.

[03:39:55] Speaker 01:
It may be hard to pull those filings from the docket, not because they're sealed, but just because they haven't gone through the normal security.

[03:40:02] Speaker 01:
It takes a little while for things to be made public on the docket after a security review.

[03:40:06] Speaker 01:
I can provide those filings to the court.

[03:40:11] Speaker 07:
I will do that.

[03:40:12] Speaker 07:
The defense counsel can provide any counter filings that they wish to.

[03:40:16] Speaker 07:
OK.

[03:40:16] Speaker 07:
There's other pages I think we should look at.

[03:40:19] Speaker 01:
And I think we've covered most of the things I wanted to get to on rebuttal, Your Honor.

[03:40:23] Speaker 01:
Thank you very much for indulging me.

[03:40:25] Speaker 07:
Any other questions for now?

[03:40:27] Speaker 07:
OK.

[03:40:28] Speaker 07:
All right.

[03:40:28] Speaker 07:
Thank you.

[03:40:28] Speaker 07:
We'll take a brief recess and close the courtroom.