U.S. – vs – KSM UPDATE
The writ of Mandamus and emergency stay have been filed with the D.C. District Court, at 4:30 today. The Solicitor General, Elizabeth B. Prelogar, authorized the filing of the brief to the court of appeals seeking the emergency stay to order the Military Judge to not enter the pleas and the 103 pages of the Pre-Trial Agreements (PTAs). If the District Court responds and grants the stay, Friday won’t happen. If they don’t grant the stay by Friday Morning, it essentially cannot be stopped. Once the Judge rules KSM guilty, it cannot be undone. The governement’s request had to be hand served to the three accused detainees planning to enter PTAs; KSM, WBA, and HAW.
Right now, we’re in limbo to see if D.C. District Court will accept and grant the stay. If granted, we’re done. VFMs ask, what is the stay addressing? Council states they can’t be sure if the stay is addressing only the entry of the pleas or to include the suppression proceedings scheduled to continue in week 3 for Ali Abdul Ali (aka Ammar al-Baluchi. AAA) as well. We only have 3 have pleas. AAA has filed separate motions in the 3rd week. If the stay is granted only for the three PTAs, we can still do the suppression hearings for AAA. If they stay the entire 9/11 case, then nothing happens in the Military Commissions for several months until the administration researches the writ request. If the stay is not granted, the PTAs are happening beginning 9:00 AM Friday morning. Almost all of the details of the PTAs will be laid out in open court. As of now, KSM is prepped and ready to say YES to all of the questions. The legally significant moment is when the provisions are presented and the Military Judge accepts his guilty plea.
If the District Court grants the stay the next question is, what are the parameters? Will it apply to only this Friday’s PTA (KSM), to all three PTA’s, to all 5 cases? The Military Judge, Matthew McCall, can give additional days for the District Circuit Court to decide.
This situation is unprecedented. If the request gets pushed into the new administration with the new SoD, there could be a pause in the commissions as a whole, The PTA’s could enter into a long pause, the PTAs could be halted, or rejected altogether. If the latter occurs, the poison pill clause will apply.
What is the poison pill clause and how does it apply? The poison pill is a defense strategy, a contract holder rights plan. The Pre-Trial Agreements are contracts. The defendants KSM, WBA, and MAH have signed contracts. If they are not carried out, there is a punishment of sorts for breaching the contract. Every part of the 103 pages of the contract (PTA) provisions will have to be litigated. This would take years. KSM turns 60 this year.
Open session court is scheduled to commence tomorrow (Wednesday) at 9:00 AM. Council will confer with the judge, the conditions of the 103 pages of the PTA for KSM.
Feature photo rights of Deborah Garcia, with permission by the Office of Military Commissions, Victims Witness Protection Program.
I’m still very confused but very much appreciate your attempt to make more sense of this situation. I hope WE -The 9/11 Family members are NOT DONE and that some sense of finality will occur that favours the Families and NOT the terrorists who are living a good life in GTMO!