In re: United States of America

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 28, 2025 Decided July 11, 2025

No. 25-1009

IN RE: UNITED STATES OF AMERICA,

PETITIONER

On Petition for Writs of Mandamus and Prohibition

Melissa N. Patterson, Attorney, U.S. Department of

Justice, argued the cause for petitioner. With her on the petition

and the reply were Matthew G. Olsen, Assistant Attorney

General for National Security at the time the petition was filed,

Brian H. Fletcher, Principal Deputy Solicitor General at the

time the petition was filed, Brett A. Shumate, Acting Assistant

Attorney General, Civil Division, and Mark R. Freeman,

Attorney. Sarah C. Griffin, Attorney, U.S. Department of

Justice, entered an appearance.

Michel Paradis, Attorney, Office of Military

Commissions Defense Organization, argued the cause for

respondents Khalid Sheikh Mohammad and Mustafa al

Hawsawi. With him on the opposition to the petition for writs

of mandamus and prohibition were Walter B. Ruiz, Attorney,

Suzanne M. Lachelier, Senior Attorney, Sean M. Gleason,

Attorney, Nicholas McCue, Attorney, Melanie Partow,

Attorney, Maj. Michael Leahy, USAF, and Lt. William Xu,

JAGC, USN.

2

Matthew L. Engle argued the cause for respondent Walid

Muhammad Salih Mubarak bin ‘Atash. With him on the

opposition to the petition for writs of mandamus and

prohibition was Edwin A. Perry.

Nicholas J. Lewin and Benjamin W. Perotin were on the

brief for amicus curiae September Eleventh Families for

Peaceful Tomorrows and Fifty-Three Individual 9/11 Victim

Family Members in support of respondents.

Matthew S. Hellman was on the brief for amicus curiae the

Center for Victims of Torture in support of respondents.

Before: MILLETT, WILKINS and RAO, Circuit Judges.

Opinion for the Court by Circuit Judges MILLETT and

RAO.

Opinion concurring in part and dissenting in part filed by

Circuit Judge WILKINS.

MILLETT and RAO, Circuit Judges: Respondents Khalid

Sheikh Mohammad, Walid Muhammad Salih Mubarak bin

‘Atash, and Mustafa Ahmed Adam al Hawsawi are being tried

by military commission at the United States Naval Base in

Guantanamo Bay, Cuba. They are each accused of

participating in the planning and execution of the terrorist

attacks on September 11, 2001, which killed 2,976 people.

At the end of July 2024, each Respondent offered, and the

Convening Authority overseeing their cases accepted, pretrial

agreements in which Mohammad, bin ‘Atash, and Hawsawi

agreed to plead guilty, and the government agreed not to seek

the death penalty. Ruling on Defense Motions to Schedule

Entry of Pleas, United States v. Mohammad, Military Comm’ns

3

Trial Judiciary No. AE 955J / AE 956J / AE 957I, at 7 (U.S.

M.C.T.J. Nov. 6, 2024) (“Pretrial Agreement Order”). Each

Respondent also promised, among other things, to withdraw

certain motions filed in their criminal cases and to waive all

waivable motions. On August 1st and 2nd—right after the

Convening Authority signed the agreements—Respondents

stayed silent during the questioning of a witness in a

suppression hearing that went forward for a non-settling co-

defendant. On August 2nd, then-Secretary of Defense Lloyd J.

Austin III withdrew from each of the agreements.

As relevant here, the military commission judge and the

United States Court of Military Commission Review

(“CMCR”) refused to recognize the Secretary’s withdrawal on

the ground that Respondents had begun to perform under the

contracts. The CMCR denied the government’s petition for

writs of mandamus and prohibition. The military judge then

scheduled the prompt entry of Respondents’ pleas. After the

government’s request for a stay was denied, it asked this court

to issue writs of mandamus and prohibition enforcing the

Secretary of Defense’s withdrawal from the pretrial

agreements and prohibiting the military judge from entering

guilty pleas under the agreements.

While mandamus and prohibition are extraordinary forms

of relief, they are warranted in this case. The Secretary of

Defense indisputably had legal authority to withdraw from the

agreements; the plain and unambiguous text of the pretrial

agreements shows that no performance of promises had begun;

the government has no adequate alternative remedy to

vindicate its interests; and the equities make issuance of the

writs appropriate.

4

I

A

The Military Commissions Act of 2009 (“Commissions

Act”) establishes the procedures for military commissions to

try “alien unprivileged enemy belligerents for violations of the

law of war and other offenses triable by military commission.”

10 U.S.C. § 948b(a). Military commissions “may be convened

by the Secretary of Defense” or another federal official

designated by the Secretary. Id. § 948h. The Commissions Act

also empowers the Secretary to prescribe “[p]retrial, trial, and

post-trial procedures, including elements and modes of proof,

for cases triable by military commission[.]” Id. § 949a(a).

Under that statutory authority, the Secretary of Defense

issued the Manual for Military Commissions, which is adapted

from the Manual for Courts-Martial, and contains, among other

things, the Rules for Military Commissions (“R.M.C.”).

B

Mohammad, bin ‘Atash, and Hawsawi are each charged

under the Commissions Act with seven law-of-war crimes:

attacking civilians, attacking civilian objects, murder in

violation of the law of war, destruction of property in violation

of the law of war, hijacking or hazarding a vessel or aircraft,

terrorism, and conspiracy. 10 U.S.C. § 950t(2), (3), (15), (16),

(23), (24), (29). Congress authorized the death penalty for five

of those offenses. Id. § 950t(2), (15), (23), (24), (29).

On August 21, 2023, the Secretary of Defense appointed

retired Brigadier General Susan Escallier as the Convening

Authority for military commissions. J.A. 262. Convening

Authority Escallier subsequently authorized the prosecuting

attorneys to discuss pretrial agreements and plea bargains with

5

Mohammad, bin ‘Atash, and Hawsawi. Pretrial Agreement

Order at 6. Negotiations over the pretrial agreements at issue

here took place between October 2023 and July 2024. Id.

On July 29 and 30, 2024, Mohammad, bin ‘Atash, and

Hawsawi each submitted a signed “Offer for Pretrial

Agreement” to the Convening Authority. Pet’r’s Supp. Letter

Attachment 2 (“Mohammad PTA”) at 1, 20 (dated July 29,

2024); Pet’r’s Supp. Letter Attachment 3 (“bin ‘Atash PTA”)

at 1, 19 (dated July 29, 2024); Pet’r’s Supp. Letter Attachment

4 (“Hawsawi PTA”) at 1, 19 (dated July 30, 2024).

In those offers, each Respondent proposed to plead guilty

to “all charges and specifications” against him. Mohammad

PTA ¶ 5; bin ‘Atash PTA ¶ 5; Hawsawi PTA ¶ 5. Respondents

also agreed that certain Letterhead Memoranda—which

summarized statements by each Respondent to the Federal

Bureau of Investigation in 2007 and, for bin ‘Atash, also in

2008—could be used to establish their guilt and to inform their

sentencing. Mohammad PTA ¶¶ 12(ii), 13; bin ‘Atash PTA

¶¶ 12(b), 13; Hawsawi PTA ¶¶ 12(ii), 13. In addition,

Respondents offered to undergo a lengthy and public

sentencing hearing in which, among other things, victims’

families would be able to address and question Respondents

directly and Respondents would have to answer those questions

truthfully. See, e.g., Mohammad PTA ¶ 12(xxiv). In

exchange, the government would not pursue the death penalty.

Pretrial Agreement Order at 7. Appended to each of the offers

was a lengthy and signed stipulation of fact admitted by the

respective Respondent, as well as the corresponding Letterhead

Memoranda.

On July 31, 2024, the Convening Authority, on behalf of

the United States, accepted those offers and signed each of the

pretrial agreements. In re Mohammad, No. CMCR 24-001,

6

2024 WL 5396185, at *2 (U.S. C.M.C.R. Dec. 30, 2024). A

fourth co-defendant, Al Baluchi Aziz Ali, did not enter into a

pretrial agreement.

The next day, counsel for each Respondent and for Al

Baluchi attended a previously scheduled hearing before the

military judge. The proceeding originally had been called for

Respondents and Al Baluchi to examine an FBI witness who

was relevant to motions to suppress each defendant had

previously filed.

After the prosecution informed the military judge that

Mohammad, bin ‘Atash, and Hawsawi had entered into pretrial

agreements to plead guilty, all parties agreed that the

suppression hearing would go forward only for Al Baluchi

since he had not entered into a pretrial agreement. The judge

then explained that Mohammad’s, bin ‘Atash’s, and

Hawsawi’s motions to suppress would be put on hold, so that

if the pleas were not later entered, they would then be able to

question the FBI witness in support of their still-pending

motions to suppress. Trial Tr. 49319:12–19, Aug. 1, 2024 (J.A.

226). No counsel for Mohammad, bin ‘Atash, or Hawsawi

spoke at the hearing at all, other than to note their appearances

and, later, to agree that Al Baluchi should be able to see their

agreements. Id. at 49306:1–49412:7, 49307:1–49308:11,

49325:2–49326:6.

On August 2, 2024, examination of the witness continued

and counsel for Respondents were again present. Trial Tr.

49414, Aug. 2, 2024 (J.A. 411). At the hearing, the

government and the military judge discussed scheduling the

plea hearings as soon as possible for a number of reasons,

including to “insulate the proceedings from any unlawful

influence.” Trial Tr. 49418:14–15 (J.A. 234). Counsel for

Hawsawi then expressed Hawsawi’s desire to enter his plea as

7

soon as that day. Trial Tr. 49419 (J.A. 235). That same

attorney stated that he “had not been engaging in any

examination of the witness,” which he “believe[d] … [to be]

specific performance on th[e] plea agreement.” Trial Tr.

49421:1–3 (J.A. 237). Counsel for Mohammad and bin ‘Atash

said nothing beyond entering their appearances. Trial Tr.

49414:3–6, 9–12 (J.A. 411).

Later that same day, the Secretary of Defense announced

the government’s withdrawal from each of the pretrial

agreements. The Secretary explained that, “in light of the

significance of the decision to enter into pre-trial agreements

with the accused in the above-referenced case[s],” the

“responsibility for such a decision should rest with me as the

superior convening authority under the [Commissions Act].”

Pretrial Agreement Order at 9; Memorandum from Secretary

of Defense to Susan Escallier, Convening Authority for

Military Commissions (Aug. 2, 2024) (available at

https://perma.cc/4CRT-BXV7). The Secretary then withdrew

Convening Authority Escallier’s authority “to enter into a pre-

trial agreement” with any of the three Respondents and

“reserve[d] such authority to [him]self.” Pretrial Agreement

Order at 9; Memorandum from Secretary of Defense to Susan

Escallier, supra.

C

1

Respondents promptly challenged the lawfulness of the

Secretary’s withdrawal and asked to have the entry of their

pleas promptly scheduled. Pointing to the Rules for Military

Commissions, Respondents noted that the Convening

Authority “may withdraw from a pretrial agreement at any time

before the accused begins performance of promises contained

8

in the agreement[.]” R.M.C. 705(d)(4)(B). Respondents each

argued that the Secretary lacked authority to withdraw both

because (1) he had delegated his authority to manage these

cases to the Convening Authority and could not revoke it after

the agreements were signed, and because (2) Respondents had

already begun performance of promises contained in their

pretrial agreements. Specifically, Respondents argued that

they had performed by signing the stipulations of fact attached

to their Pretrial Agreement offers, agreeing to admission of the

Letterhead Memoranda, and not questioning the witness at the

Al Baluchi hearing.

2

The military judge ruled that the Secretary lacked the

authority to withdraw from the agreements. The judge

concluded, first, that the Secretary could “withhold” certain

powers from Convening Authority Escallier at the time of

delegation, but he could not later “withdraw” her authority to

act. Pretrial Agreement Order at 18–19. The judge added that

any assumption of authority by the Secretary could be effective

only prospectively, and so he could not unravel the Convening

Authority’s prior entry into the pretrial agreements. Id. at 20.

To allow otherwise, the judge reasoned, would undermine the

appointed Convening Authority’s independence and

“potentially raise[] the specter of unlawful influence.” Id. at

20–21.

The military judge further ruled that the Secretary could

not pull out of the pretrial agreements because Respondents

had already begun performance of promises contained in the

pretrial agreements—namely, signing the stipulations of fact,

agreeing to the Letterhead Memoranda, refraining from cross-

examining a witness during the hearing on August 1, 2024, and

9

refraining from filing new motions. Pretrial Agreement Order

at 25–27.

3

The government filed a petition for writs of mandamus and

prohibition with the CMCR. That court agreed with the

government that the Secretary of Defense had the authority to

act as the superior convening authority for the purpose of

withdrawing from the pretrial agreements without replacing

Convening Authority Escallier in her other capacities. In re

Mohammad, 2024 WL 5396185, at *10. The court noted that

the Rules for Military Commissions allow the Secretary of

Defense to withhold authority from the Convening Authority

to dispose of charges. Id. at *5 (citing R.M.C. 401(a)).

The court agreed with Respondents, however, that the

Secretary could not withdraw from the pretrial agreements

because they had begun performance of a promise contained in

them. Specifically, the court ruled that Respondents began to

perform when they refrained from cross-examining the FBI

witness at the hearing on August 1, 2024. In re Mohammad,

2024 WL 5396185, at *11.

Following the decision of the CMCR, the government

sought a continuance of the plea hearings until January 27,

2025. The military judge denied the motion and scheduled the

plea hearings to begin on January 10, 2025. Ruling on

Government Motion to Continue Plea Hearing, United States

v. Mohammad, Military Comm’ns Trial Judiciary No. AE 955T

/ AE 956S / AE 957Q, at 1, 4 (U.S. M.C.T.J. Jan. 3, 2025).

4

The government then petitioned this court for an

emergency administrative stay, a stay pending review, and

10

writs of mandamus and prohibition enforcing the Secretary of

Defense’s withdrawal from the pretrial agreements and

prohibiting the military judge from entering guilty pleas.

This court granted an administrative stay on January 9,

2025, and ordered expedited briefing and argument on the

petition for writs of mandamus and prohibition. After oral

argument and post-argument submissions by the parties, this

court lifted the administrative stay and entered a full stay

pending disposition of the government’s petition. We now

grant the government’s petition for writs of mandamus and

prohibition.

II

The All Writs Act allows this court to “issue all writs

necessary or appropriate in aid of [our] [] jurisdiction[.]” 28

U.S.C. § 1651(a). By the “express terms of the Act[,]” we may

only “issu[e] process ‘in aid of’ [our] existing statutory

jurisdiction; the Act does not enlarge that jurisdiction[.]”

Clinton v. Goldsmith, 526 U.S. 529, 535–36 (1999).

We have that authority in this case. “[O]nce there has been

a proceeding of some kind that might lead to an appeal,” we

have jurisdiction to issue writs. In re al-Nashiri, 791 F.3d 71,

76 (D.C. Cir. 2015) (quoting In re Tennant, 359 F.3d 523, 529

(D.C. Cir. 2004)) (formatting modified). Our “authority is not

confined to the issuance of writs in aid of a jurisdiction already

acquired by appeal,” but also includes “those cases which are

within [our] appellate jurisdiction although no appeal has been

perfected.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 25

(1943). The Commissions Act vests this court with “exclusive

jurisdiction to determine the validity of a final judgment

rendered by a military commission[.]” 10 U.S.C. § 950g(a).

Because we have appellate jurisdiction over the underlying

11

proceeding, we have jurisdiction to issue writs of mandamus

and prohibition. See In re al-Nashiri, 791 F.3d at 76.

III

Mandamus and prohibition are extraordinary forms of

relief that will be granted only in exceptional circumstances. 1

See Cheney v. U.S. District Court for the District of Columbia,

542 U.S. 367, 380 (2004) (“[Mandamus] is a ‘drastic and

extraordinary’ remedy ‘reserved for really extraordinary

causes.’”) (quoting Ex parte Fahey, 332 U.S. 258, 259–60

(1947)). Specifically, we may issue a writ of mandamus or

prohibition only if (1) the petitioner’s right to immediate relief

is “clear and indisputable”; (2) the petitioner has “no other

adequate means to attain the relief he desires”; and (3) the

court, “in the exercise of its discretion,” is “satisfied that the

writ is appropriate under the circumstances.” United States v.

Fokker Servs. B.V., 818 F.3d 733, 747 (D.C. Cir. 2016)

(quoting Cheney, 542 U.S. at 380–81).

This is a rare case in which that exacting standard has been

met. First, the government has demonstrated a clear and

indisputable right to relief in this case. As the CMCR

1

The extraordinary writs of mandamus and prohibition are both

ancient common law prerogative writs. See William J. Hughes &

Eugene Brown, The Writ of Prohibition, 26 GEO. L.J. 831, 831–32

(1938). A writ of mandamus compels action not being taken, while

a writ of prohibition, as its name suggests, orders a halt to action. See

State ex rel. Bos. & M. Consol. Copper & Silver Mining Co. v.

Second Jud. Dist. Ct., 22 Mont. 220, 231 (1899) (emphasis omitted);

see also In re Grant, 635 F.3d 1227, 1230 n.3 (D.C. Cir. 2011). The

grounds for issuing the two are “virtually identical,” and “[a]

petitioner need not precisely distinguish which writ he seeks.” In re

Halkin, 598 F.2d 176, 180 n.1 (D.C. Cir. 1979); see also In re

Jackson County, Mo., 834 F.2d 150, 151 (8th Cir. 1987).

12

determined, the military judge’s conclusion that the Secretary

of Defense lacked the authority to withdraw the Convening

Authority’s delegated power and to step into her shoes to

manage the pretrial agreements fails as a matter of law. Such

a reading would be inconsistent with the Secretary’s power to

superintend the disposition of charges in these cases.

The military judge also clearly erred in his determination

that Respondents had begun performance of promises

contained in the pretrial agreements, including by not

questioning a witness. No such promise appears anywhere in

the text of the pretrial agreements, and the judge did not claim

to be interpreting any ambiguity in the agreements. Nor did

any Respondent withdraw a pending motion or refrain from

filing additional motions prior to the Secretary’s withdrawal.

Likewise, Respondents’ submission of signed stipulations of

fact and Letterhead Memoranda occurred as part of their offers

of pretrial agreements to the Convening Authority. They were

not the performance of a promise contained in the later-

executed agreements.

Second, the government has shown that it has no adequate

alternative avenue of relief. There is no apparent basis for the

government to take either an interlocutory appeal or an

effective and adequate appeal after final judgment.

Finally, given the unique and important national security

interests at stake, as well as the significant public interest in the

resolution of these proceedings, writs of mandamus and

prohibition are appropriate.

A

The government has demonstrated a clear and indisputable

right to relief in this case. The Secretary of Defense had full

13

legal authority to withdraw the Convening Authority’s

delegated power over the pretrial agreements. Similarly, under

the plain text of the pretrial agreements and the record in this

case, no prior performance of promises contained in those

agreements prevented the Secretary’s withdrawal.

1

Recognizing the significance of striking plea deals with

Respondents—perpetrators of the September 11th attacks—

Secretary Austin invoked his role “as the superior convening

authority under the [Commissions Act].” Memorandum from

Secretary of Defense to Susan Escallier, supra. He then

withdrew Convening Authority Escallier’s authority over the

pretrial agreements, assumed that authority for himself, and

withdrew from the agreements. We agree with the CMCR that

the Secretary’s actions were lawful because the Commissions

Act designates him as the superior convening authority for

military commissions. As such, he possessed the authority to

wholly or partially withdraw Escallier’s delegated power and

step into her shoes to manage the pretrial agreements with

Respondents. The military judge clearly erred in holding

otherwise.

Acting under the President’s direction, the Secretary of

Defense has broad authority under the Commissions Act to

determine the structure and procedures for military

commissions. See 10 U.S.C. §§ 948b(b), 949a(a), 948j(a).

The Commissions Act authorizes the Secretary to serve as the

convening authority for military commissions. See id. § 948h.

He may exercise this power directly or delegate it to an inferior

“officer or official of the United States.” Id.; R.M.C.

103(a)(10) (defining “[c]onvening authority” to include the

Secretary or any subordinate he designates for that purpose).

This delegation may occur in whole or in part, and the

14

Secretary may prescribe limitations on a subordinate

convening authority’s exercise of delegated power. See, e.g.,

R.M.C. 401(a) (providing the Secretary “may withhold the

authority of a subordinate to dispose of charges in individual

cases, types of case[s], or generally”); R.M.C. 704(e)

(recognizing the Secretary’s authority to limit the convening

authority’s power to grant immunity).

When the Secretary designates a convening authority to

act in his stead, that subordinate is an “inferior officer” subject

to the Secretary’s “oversight and control.” 2 Al Bahlul v. United

States, 967 F.3d 858, 872–73 (D.C. Cir. 2020). “The Secretary

of Defense is responsible for the overall supervision and

administration of military commissions within the [Department

of Defense].” Regulation for Trial by Military Commission 1-

3(a) (2011).

Secretary Austin appointed Retired Brigadier General

Escallier to serve as the Convening Authority for military

commissions in October 2023. As Convening Authority,

Escallier was empowered to negotiate and enter into pretrial

agreements with Respondents. See 10 U.S.C. § 949i(c);

R.M.C. 705(d)(1), (3). After Escallier negotiated agreements

2

The Commissions Act’s allocation of responsibility comports

with the Secretary’s designation as “head of the Department of

Defense.” 10 U.S.C. § 113(a)(1). In the exercise of his statutory

duties, and “[s]ubject to the direction of the President,” the Secretary

“has authority, direction, and control over the Department.” Id.

§ 113(b). To help execute his duties, the Secretary may delegate

authority to his subordinates, but he remains responsible for their

actions. See id. § 113(d) (“Unless specifically prohibited by law, the

Secretary may, without being relieved of his responsibility, perform

any of his functions or duties, or exercise any of his powers through,

or with the aid of, such persons in, or organizations of, the

Department of Defense as he may designate.”).

15

under which Respondents would plead guilty in exchange for a

promise not to seek the death penalty, Secretary Austin

determined it was in the national interest to withdraw

Escallier’s authority over the pretrial agreements and to assume

that authority for himself.

The Secretary’s actions were well within his statutory

authority and in accordance with his responsibility to oversee

his subordinates. We have recognized that, because the

“[Commissions Act] includes no explicit tenure provisions,”

“the Convening Authority is removable at will by the

Secretary.” Al Bahlul, 967 F.3d at 872. Nothing in the

Commissions Act prevents the Secretary from removing some,

rather than all, of the convening authority’s powers. To the

contrary, no one disputes that Secretary Austin could have

withheld authority over pretrial agreements when he appointed

Escallier as Convening Authority or at an appropriate later

time. See R.M.C. 401(a), 705(a). Likewise, nothing in the

Commissions Act requires the Secretary to set out all limits on

the delegation at the very outset at the risk of losing his

superintending authority.

The Secretary’s power to delegate his convening authority

in part necessarily includes the power to withdraw a delegation

in part. Exercising this power, the Secretary lawfully withdrew

Escallier’s authority over Respondents’ pretrial agreements.

After assuming this authority, the Secretary had the power to

withdraw from the agreements. See R.M.C. 705(d)(4)(B)

(permitting the convening authority to withdraw from an

agreement under specified conditions).

We reject Respondents’ arguments to the contrary.

Following the lead of the military judge, Respondents maintain

that the decision to withdraw from the pretrial agreements was

in Convening Authority Escallier’s sole discretion, and they

16

point to the Commissions Act’s prohibition against unlawful

influence as evidence for this fact. See 10 U.S.C.

§ 949b(a)(2)(B) (“No person may attempt to coerce or, by any

unauthorized means, influence … the action of any

convening … authority with respect to their judicial acts.”).

Respondents claim that without an explicit grant of authority to

override an inferior convening authority’s decision, the

Secretary was bound by his delegation and by Escallier’s

decision.

Respondents’ reliance on the unlawful influence provision

is inapposite because it does not address the Secretary’s lawful

authority to withdraw his previous delegation of convening

authority. Secretary Austin did not direct Escallier or seek to

govern how she performed her delegated duties. 3 Instead, the

Secretary withdrew Escallier’s authority over the pretrial

agreements, assumed that authority for himself, and

independently exercised the authority to withdraw from the

pretrial agreements. These actions were consistent with the

Secretary’s broader responsibilities, as well as with his

particular statutory and regulatory authority over military

commissions. The military judge’s finding to the contrary was

clearly and indisputably erroneous.

2

While the Secretary had the lawful authority to withdraw

from the agreements signed by the Convening Authority, we

3

Respondents’ arguments largely pertain to the undisputed

point that Escallier had authority to enter into pretrial agreements

before the Secretary withdrew this authority. Because we conclude

that the Secretary’s withdrawal was lawful, we have no occasion to

consider whether entering into or withdrawing from pretrial

agreements are “judicial acts” protected by the Commissions Act or

to assess the applicability of any limits on unlawful influence.

17

also must decide whether the Secretary’s action complied with

the governing regulations. Specifically, under the Rules for

Military Commissions, the convening authority may withdraw

from a pretrial agreement “at any time before the accused

begins performance of promises contained in the agreement.”

R.M.C. 705(d)(4)(B) (“withdrawal regulation”).

The military judge identified three ways that Respondents

had begun performing promises in the pretrial agreements

before the withdrawal: (1) refraining from examining a

witness and from filing motions; (2) entering into stipulations

of fact with the prosecution; and (3) negotiating acceptable

versions of their respective Letterhead Memoranda.

All three of those determinations are reviewed de novo in

this case. “[A] plea agreement is a contract” between the

defendant and the government that is governed by the

“principles of contract law[.]” United States v. Jones, 58 F.3d

688, 691 (D.C. Cir. 1995); see United States v. Munafo, 123

F.4th 1373, 1378 (D.C. Cir. 2024); United States v. Moreno-

Membache, 995 F.3d 249, 254 (D.C. Cir. 2021).

In contract cases, questions of law are reviewed de novo

and questions of fact for clear error. Collins v. Pension Benefit

Guaranty Corp., 881 F.3d 69, 72 (D.C. Cir. 2018);

RESTATEMENT (SECOND) OF CONTRACTS § 212(2) (AM. L.

INST. 1981); 11 RICHARD A. LORD, WILLISTON ON CONTRACTS

§ 30:1 (4th ed. 2024); 5 TIMOTHY MURRAY, CORBIN ON

CONTRACTS § 24.1(3) (Rev. Ed. 2024). Identifying the

governing rules of contract law is a legal question reviewed de

novo. Ram Constr. Co. v. American States Ins. Co., 749 F.2d

1049, 1053 (3d Cir. 1984); 11 WILLISTON § 30:1.

Determining the meaning that should be ascribed to a

contract’s words—the contract’s “interpretation”—is a

18

question of law or fact depending on whether the relevant

contract language is ambiguous or otherwise subject to proof

by extrinsic evidence. Bennett Enters., Inc. v. Domino’s Pizza,

Inc., 45 F.3d 493, 497 (D.C. Cir. 1995); 11 WILLISTON § 30:1.

In addition, there is no dispute in this case over the

applicable Rule of Military Commission governing the

withdrawal from pretrial agreements. The military judge and

the parties agree that the Secretary’s ability to withdraw from

the pretrial agreements turns on whether Respondents had

“beg[un] performance of promises contained in the

agreement[s.]” R.M.C. 705(d)(4)(B); see Pretrial Agreement

Order at 25–26.

The relevant facts concerning Respondents’ conduct at the

August 1st and 2nd hearings are not in question. They are

documented in the hearing transcript. The facts pertaining to

Respondents’ submission of their respective stipulations of fact

and agreement to the admission of letterhead memoranda as

part of their offers for pretrial agreements are also not in dispute

as they appear on the face of the agreements.

What the parties disagree about, and what the military

judge decided, are the applicable principles of contract law and

whether Respondents’ conduct constituted performance of a

promise that is contained in the agreements. The former is a

question of law that we review de novo. And the latter is a

question of contract interpretation because it is a disagreement

over what the words in the agreements mean. Our standard of

review for this question turns on whether the words in the

agreements are ambiguous.

Whether a contract term is ambiguous is a question of law

that we review de novo. Segar v. Mukasey, 508 F.3d 16, 22

(D.C. Cir. 2007); Bennett, 45 F.3d at 497; 11 WILLISTON

19

§ 30:5. A court interprets a contract’s language based on how

a reasonable person would understand the contract’s terms in

light of the whole agreement and the surrounding

circumstances. See Richardson v. Edwards, 127 F.3d 97, 101

(D.C. Cir. 1997); Florida East Coast Ry. Co. v. CSX Transp.,

Inc., 42 F.3d 1125, 1129 (7th Cir. 1994); 11 WILLISTON § 30:4;

2 ZACHARY WOLFE, FARNSWORTH ON CONTRACTS §§ 7.11,

7.14 (4th ed. 2025). Contract language will be considered

“ambiguous if it is reasonably susceptible [to] different

constructions, but it is not ambiguous merely because the

parties later disagree on its meaning.” Bennett, 45 F.3d at 497;

see Sayers v. Rochester Tel. Corp. Supplemental Mgmt.

Pension Plan, 7 F.3d 1091, 1095 (2d Cir. 1993); 11 WILLISTON

§ 30:4; 5 CORBIN § 24.4(3). If a contractual term is ambiguous,

the trial court may use extrinsic evidence to make a factual

finding about what meaning the parties intended. NRM Corp.

v. Hercules Inc., 758 F.2d 676, 682 (D.C. Cir. 1985); 5 CORBIN

§ 24.4(4). Such factual findings are reversible only for clear

error. 4

But when the contract’s terms are not ambiguous, there are

no questions of fact for the court to resolve. Collins, 881 F.3d

at 72–73; Segar, 508 F.3d at 22. The court’s only task is to

give effect to the contract’s plain language. “[I]t is black-letter

law that the terms of an unambiguous private contract must be

enforced irrespective of the parties’ subjective intent[.]”

Travelers Indem. Co. v. Bailey, 557 U.S. 137, 150 (2009); see

In re Binghamton Bridge, 70 U.S. 51, 74–75 (1865) (“If there

is no ambiguity, and the meaning of the parties can be clearly

ascertained, effect is to be given to the instrument used[.]”);

4

The dissenting opinion objects that we have ignored relevant

extrinsic evidence in concluding that the language of the PTAs is

unambiguous. Dissenting Op. 13. Yet the dissenting opinion points

to no material evidence that our analysis has not addressed.

20

Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del.

2009); 11 WILLISTON § 30:4. In other words, when “the plain

meaning of the language” in a contract is clear, “the inquiry

begins and ends with the text.” Bode & Grenier, LLP v. Knight,

808 F.3d 852, 862 (D.C. Cir. 2015).

Plea agreements in criminal cases are analyzed the same

way. When there is no ambiguity in the agreement, “the

interpretation of a plea agreement’s terms is a pure matter of

law” that we review de novo. Jones, 58 F.3d at 691; Moreno-

Membache, 995 F.3d at 254; United States v. Henry, 758 F.3d

427, 431 (D.C. Cir. 2014).

The dissenting opinion reasons that other circuits largely

review district courts’ interpretations of the terms of plea

agreements for clear error. Dissenting Op. 10–11. What

controls here is this circuit’s law that “[t]he meaning of a plea

agreement … is of course reviewed de novo,” even while

factual findings are reviewed for clear error. United States v.

Pollard, 959 F.2d 1011, 1023 (D.C. Cir. 1992). Even the

dissenting opinion’s preferred circuit for its reading agrees that

“court[s] review[] the terms of [a] plea agreement de novo,”

while “factual determination[s] [are] reviewed for clear error.”

United States v. Altamirano-Quintero, 511 F.3d 1087, 1093,

1098 (10th Cir. 2007). So do other circuits. 5

5

See United States v. Estrada-Gonzalez, 32 F.4th 607, 612–13

(6th Cir. 2022) (“[C]onsistent with common-law contract principles,

we have treated the question whether an agreement’s language is

unambiguous as a legal issue subject to de novo review …. When

interpreting that language, moreover, we have focused on how a

‘reasonable person’ would understand it—just as a court would with

any contract.”) (internal citations omitted); United States v. Farias,

469 F.3d 393, 397 (5th Cir. 2006) (“We review de novo whether the

Government breached a plea agreement, accepting the district court’s

21

The dissenting opinion also responds that “none” of our

cases have reviewed disagreement over “the scope of a contract

term” in a pretrial agreement de novo. Dissenting Op. 11 n.2.

Use of the word “scope” is puzzling because words have

meanings, not scopes. If by “scope of a contract term” the

dissenting opinion means the “meaning of a contract term,”

then the dissenting opinion is simply incorrect. See Moreno-

Membache, 995 F.3d at 254–55 (reviewing de novo meaning

of “agrees not to seek any of the adjustments”); Henry, 758

F.3d at 432–33 (reviewing de novo meaning of “full nature and

extent of … cooperation”). If instead the dissenting opinion

refers to the parties’ intended meaning, then it has gone where

courts cannot go when, as here, the term is unambiguous.

In this case, the pretrial agreements, which were drafted

jointly by Respondents and the government, are written down

in substantial detail and the relevant terms are not ambiguous.

There is also no dispute about the key facts. What the parties

did and said in the hours between the Convening Authority’s

approval of the PTAs and the Secretary of Defense’s

withdrawal are all recorded in court transcripts and records.

As a result, the standard of review is the same as for an

integrated contract with unambiguous terms. Review is de

novo and the “plain language of the plea agreement” controls.

factual findings unless clearly erroneous.”); United States v. Mejia,

55 F.4th 1, 7 (1st Cir. 2022) (“Once any factual disputes are

resolved, the question of whether a party breached the terms of a plea

agreement is usually a question of law, which we review de novo.”)

(emphasis added) (citation omitted); United States v. Tripodis, 94

F.4th 1257, 1261, 1263 (11th Cir. 2024) (reviewing de novo whether

the government breached a plea agreement and employing clear-

error review only for “factual findings regarding the scope” of that

agreement).

22

Jones, 58 F.3d at 691; Munafo, 123 F.4th at 1378; United States

v. Meija, 55 F.4th 1, 7 (1st Cir. 2022); United States v.

Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). 6

a

The military judge held that the Secretary of Defense

could not withdraw from the pretrial agreements because

Respondents began performance of a promise in the

agreements when, at the August 1st and 2nd hearings, they

“refrained from examining the witness(es) for pretrial motions

while the Prosecution and Defense Counsel for Mr. Ali

questioned those same witnesses.” Pretrial Agreement Order

at 26.

That was straightforward error given the plain text of the

pretrial agreements and the undisputed facts in this case.

By way of reminder, under Rule of Military Commission

705(d)(4)(B), the convening authority “may withdraw from a

pretrial agreement at any time before the accused begins

performance of promises contained in the agreement[.]”

R.M.C. 705(d)(4)(B). The type of performance by a party that

can preclude withdrawal, then, must be the commencement of

an action that is “promise[d]” within “the agreement” itself. Id.

6

The dissenting opinion argues that the military judge made

numerous factual findings that warrant clear error review.

Dissenting Op. 17–19. Yet what the dissenting opinion characterizes

as factual determinations are portions of the military judge’s opinion

where he committed legal error in concluding that undisputed facts

rendered unambiguous language in the PTAs ambiguous. Whether

contract language is ambiguous or not is a legal question that we

review de novo. Segar, 508 F.3d at 22.

23

Neither of those two criteria is met here. It is undisputed

that a commitment not to question witnesses appears nowhere

in the agreements’ text. So it is not a “promise” that is

“contained in the agreement.” In holding otherwise, the

military judge’s conclusion cited no provision of the

agreements, nor did it claim to be interpreting some ambiguous

contract language. Pretrial Agreement Order at 26–28.

Respondents point to a textual commitment in their

agreements to “withdraw all pending motions.” Mohammad

PTA ¶ 23; bin ‘Atash PTA ¶ 22; Hawsawi PTA ¶ 23. Each

Respondent’s pretrial agreement words this promise somewhat

differently, but none of those differences ultimately matter for

present purposes.

Mohammad’s agreement says:

Upon entry and acceptance of the Accused’s guilty

plea pursuant to this Agreement, the Accused

knowingly, voluntarily, and expressly waives all

waivable motions. The Accused further agrees not to

make any future motions, except ones relating to

procedural or scheduling matters, and to move to

withdraw all pending motions.

Mohammad PTA ¶ 23.

Bin ‘Atash’s agreement similarly states:

Upon the Military Judge’s acceptance of this

Agreement, the Accused knowingly, voluntarily, and

expressly waives all waivable motions. The Accused

further agrees not to make any future motions, except

ones relating to procedural, resourcing, or scheduling

matters, and to move to withdraw all pending motions.

24

Bin ‘Atash PTA ¶ 22.

Hawsawi’s agreement says:

Upon the entry and acceptance of my guilty plea, I

knowingly, voluntarily, and expressly waive all

waivable motions. Upon acceptance of this

Agreement by the Convening Authority, I agree to

move to withdraw all pending motions. I further agree

not to make any future motions except ones pertaining

to sentencing instructions, or procedural and

scheduling matters.

Hawsawi PTA ¶ 23.

Declining to examine witnesses is nowhere mentioned.

Respondents do not argue otherwise. Nor have they identified

any ambiguous word that should be read to impose that

obligation.

Respondents argue instead that refraining from

questioning the FBI witness was the beginning of their

performance of their promise to withdraw their motions.

Mohammad & Hawsawi Br. 17–20; bin ‘Atash Br. 12, 18–19.

That argument cannot be reconciled with the agreements’

language or with Respondents’ conduct at the hearings.

First, as a straightforward textual matter, withdrawing a

motion is a formal action in which a party informs the court,

orally or in writing, that he wishes to take back from the court’s

further consideration a previously requested action. In simple

terms, it means telling the court that a request for some type of

relief is abandoned and will no longer be pursued. Moving in

a legal proceeding to withdraw a motion is an affirmative

25

action that ends any further proceedings on the proponent’s

motion. See Move, BLACK’S LAW DICTIONARY 1217 (12th ed.

2024) (defining “move” as to “make a motion” or “make an

application (to a court)”); id. at 1217 (defining “motion to

withdraw” as “[a]n attorney’s request for a court’s permission

to cease representing a client in a lawsuit” or “[a] defendant’s

formal request for a court’s permission to change the

defendant’s plea or strike an admission”) (emphases added).

Yet in this case, no Respondent filed papers or orally

requested to withdraw any motions on August 1st or 2nd, and

certainly not their pending suppression motions. Nor did they

inform the court that they no longer wished to prosecute or

proceed with their suppression motions or any other motions.

They made no formal or even informal request of the court that

could amount to moving to withdraw a motion or even

beginning to do so.

Second, quite the opposite happened. The military judge

advised all three Respondents that, in light of the pretrial

agreements, he would proceed that day to hear only their co-

defendant Al Baluchi’s motion to suppress since he had not

entered into a pretrial agreement. Trial Tr. 49319:18–19, Aug.

1, 2024 (J.A. 226) (Judge McCall: “[W]e’re pressing on, which

is my intention with the [Al Baluchi] case.”); id. at 49323:18–

19 (J.A. 230) (Judge McCall: We will “continue on and have

hearings” in Al Baluchi’s case, even “if the other defense teams

are not present.”); id. at 49323:15–16 (J.A. 230) (Judge

McCall: “So going forward, … we’re dealing with what would

be part of the [Al Baluchi] case[.]”).

As for these three Respondents, the military judge

explained that he would still “give that team a chance to

question that witness if they can demonstrate that they actually

have additional matters to present” in support of their

26

suppression motions if the pleas were not later accepted. Trial

Tr. 49319:14–16, Aug. 1, 2024 (J.A. 226). In so doing, the

judge likened his decision to a prior circumstance in which

counsel for one Respondent was unable to be present for an

argument, and the argument continued without that party’s

participation, subject to further questioning by the absent

counsel at a later date. Id. at 49319:3–16 (J.A. 226). Nothing

was terminated or withdrawn; Respondents’ pending motions

were preserved for future action.

The only person who took any action with respect to

Respondents’ suppression motions was the military judge.

And he kept those motions alive pending further proceedings. 7

No Respondent objected to that preservation of their

pending motions or asked the court to withdraw his motion to

suppress. Counsel stood silent in response to the military

judge’s proposal. Indeed, other than the entry of their

appearances at the very beginning of the August 1st hearing,

counsel for Respondents did not say a word at the proceeding

about their pending suppression motions or otherwise. The

only other thing they said at the hearing occurred much later in

the proceedings when they stated that their co-defendant Al

Baluchi should be able to see the pretrial agreements. See Trial

Tr. 49325:8–11; id. at 49325:20; id. at 49325:22–23. In so

doing, counsel for Mohammad took “the position that … Mr.

Mohammad is very much a part of the case that Mr. Al Baluchi

is part of.” Id. at 49325:5–8.

7

The military judge did not purport to interpret or effectuate

the pretrial agreements. The judge was explicit that he had not even

had an opportunity to read the agreements at the time he made those

statements. Trial Tr. 49322, Aug. 1, 2024 (J.A. 148); id. at 49315

(J.A. 222).

27

To be sure, at the hearing the next day, counsel for

Hawsawi stated his belief that “not … engaging in any

examination of the witness” was “specific performance” of the

pretrial agreement. Trial Tr. 49421:1–3 (J.A. 237). But saying

so—without any accompanying action or oral request

regarding the pending motions—is not the same thing as

actually beginning performance of a promise to “withdraw”

motions. Counsel for Hawsawi did not even mention the words

“motion” or “withdraw.” Id.

It is, in short, indisputable that Respondents did not move

to withdraw their suppression motions at the hearing. Quite the

opposite: They silently acquiesced in keeping them on the

docket when the trial judge said he would preserve them for the

time being. And those motions remained on the docket, with

the full acquiescence of Respondents, at the time the Secretary

withdrew from the pretrial agreements.

Third, Respondents point to the government attorney’s

statement at the August 1st hearing that, “with the waiver of all

motions from three of the four accused, they can’t actively

continue to participate in any of the contested litigation based

on the pretrial agreement[s].” Trial Tr. 49317:21–49318:1,

Aug. 1, 2024 (J.A. 224–25). But the prosecutor’s atextual

reading of the pretrial agreements cannot change what the

contract means any more than Respondents’ inaction at the

hearings could. And it is telling that not one of Respondents’

counsel expressed agreement with the government’s position

or took any action that could even loosely be characterized as

beginning the process of withdrawing his motion. 8

8

The dissenting opinion notes that one defense attorney stated

“we see it pretty much the same way” and questioned whether

Respondents “should be required to appear for the first day of each

28

What matters for present purposes is that the promise in all

three pretrial agreements “to move to withdraw all pending

motions” is unambiguous. It requires formal steps to be taken

by Respondents that were not taken at any time prior to the

Secretary’s withdrawal from the agreements. When contract

language promises affirmative action by a party, silent inaction

is not performance of that promise, and silent acquiescence in

the court’s preservation of a motion does not in any way begin

to withdraw that motion.

Perhaps recognizing the frailty of Respondents’ argument,

the dissenting opinion tries a different tack by reasoning that

Respondents’ inaction at the hearings began performance of a

totally different promise—the promise to “waive[] all waivable

motions.” Mohammad PTA ¶ 23; bin ‘Atash PTA ¶ 22;

Hawsawi PTA ¶ 23; see Dissenting Op. 63–72. That approach

fails for three reasons.

First, neither Mohammad nor Hawsawi argued to this

court that they performed by waiving any motions. As a result,

those two Respondents have forfeited this argument as a basis

for precluding the Secretary’s withdrawal. United States ex rel.

Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir.

2004) (stating that arguments not raised on appeal are

forfeited).

Second, the agreements’ language is plain as day: The

promise to waive all waivable motions does not even attach

session anymore.” Trial Tr. 49:318:10–13 (J.A. 225); Dissenting Op.

57. But this statement was made by counsel for Al Baluchi, who did

not enter into a pretrial agreement, and concerned whether the trials

should be severed, not the meaning of Respondents’ pretrial

agreements. See Oral Arg. Tr. 118:9–15.

29

until Respondents’ guilty pleas are entered by the military

judge. See Mohammad PTA ¶ 23 (“Upon entry and

acceptance of the Accused’s guilty plea pursuant to this

Agreement, the Accused knowingly, voluntarily, and expressly

waives all waivable motions.”) (emphasis added); bin ‘Atash

PTA ¶ 22 (“Upon the Military Judge’s acceptance of this

Agreement, the Accused knowingly, voluntarily, and expressly

waives all waivable motions.”) (emphasis added); Hawsawi

PTA ¶ 23 (“Upon the entry and acceptance of my guilty plea, I

knowingly, voluntarily, and expressly waive all waivable

motions.”) (emphasis added). So the promise to waive motions

was conditioned on a particular act that had not yet occurred

when the Secretary withdrew from the agreements.

The dissenting opinion reasons that, while the entry of a

guilty plea necessarily results in the waiver of all waivable

motions, “an accused may still voluntarily waive such motions

prior to pleading guilty.” Dissenting Op. 69 (emphasis added).

Of course. But just because one party performs prematurely

does not mean that the other party’s own contractual rights

change if the contract was for performance at a specified time.

See 2 WILLIAM H. PAGE, THE LAW OF CONTRACTS § 1158

(1905) (“If the contract fixes a certain time for performance,

the party from whom performance is due has no right to

perform before that time.”); see also RESTATEMENT (SECOND)

OF CONTRACTS § 237 cmt. d; Prudential Ins. Co. of Am. v. Rand

& Reed Powers Partnership, 141 F.3d 834, 836 (8th Cir. 1998)

(recognizing the common law “perfect tender in time” rule to

reject premature performance as performance).

Third, even if the plain-text timing condition were to be

ignored, the waiver of motions—like their motion to

withdraw—requires some express, affirmative action by

Respondents. See United States v. Avery, 52 M.J. 496, 498

(C.A.A.F. 2000) (“[W]e have required that waiver be an

30

affirmative action and not merely a failure to object.”); Waiver,

BLACK’S LAW DICTIONARY 1900 (defining “waiver” generally

as “[t]he voluntary relinquishment or abandonment—express

or implied—of a legal right or advantage,” “express waiver” as

only one that is “voluntary and intentional,” and an “implied

waiver” as “evidenced by a party’s decisive, unequivocal

conduct reasonably inferring the intent to waive”). After all, a

waiver has to be knowing and voluntary. See Waive, BLACK’S

LAW DICTIONARY 1900 (“[T]o give up (a right or claim)

voluntarily …. [T]o waive a right one must do it knowingly—

with knowledge of the relevant facts.”); cf. 13 WILLISTON

§ 39:14 (“[W]aiver of a contractual provision must be clearly

established and will not be inferred from equivocal acts or

language.”).

There was no express or implied waiver by Respondents

as they said and did nothing to waive their existing motions to

suppress, or any other motions. Silent inaction in response to

the trial court’s express preservation of such motions does not

even hint at a waiver. Indeed, it would be troubling to conclude

that criminal defendants can waive motions protecting their

constitutional rights by saying and doing nothing.

At bottom, the dissenting opinion’s conclusion that

motions to suppress were waived and withdrawn brushes off

the military judge’s express statement that the motions would

be preserved and kept on a back burner until the pleas were

entered. Trial Tr. 49319:14–16, Aug. 1, 2024 (J.A. 226). The

dissenting opinion, in fact, agrees that those motions were

never “fully withdrawn[.]” Dissenting Op. 72. Which is

precisely our point. By definition, motions that are preserved

on the docket by the court for potential later revival were

neither waived nor withdrawn. They were, at most, postponed.

While the dissenting opinion supposes that Respondents

somehow began to waive or withdraw their motions, their total

31

silence and complete inactivity, including acquiescence in their

motions’ full preservation, shows the opposite. Trying after the

fact to have it both ways is not performance—or the beginning

of performance—of a promise in the agreements.

Fourth, the dissenting opinion stresses that Respondents

needed only to “begin” performance of their post-plea promise

to waive all waivable motions. Dissenting Op. 69. Fair

enough. But neither the dissenting opinion nor Respondents

explain what exactly they did to begin the waiver process.

They do not claim that they were drafting filings for the court,

practicing an oral statement to that effect, or even clearing their

throats. Beginning performance, like the actual execution of a

waiver itself, requires some identifiable action on the part of

Respondents. The record here reveals nothing showing—let

alone “clear[ly]” showing, United States v. Campos, 67 M.J.

330, 332 & n.3 (C.A.A.F. 2009) (cited in Dissenting Op. 65)—

that Respondents had intentionally relinquished any motions,

since the military judge expressly left their suppression

motions in place. 9

9

The military judge also determined that Respondents began

to perform by “refrain[ing] from filing motions.” Pretrial Agreement

Order at 27. Respondents promised “not to make any future

motions” in each of their agreements. Mohammad PTA ¶ 23; bin

‘Atash PTA ¶ 22; Hawsawi PTA ¶ 23. But no Respondent has

identified any motion they refrained from making. Hawsawi claims

that he refrained from filing a motion “which would ordinarily have

been the subject [of] motions practice,” but that occurred almost two

months after the Secretary withdrew from the plea agreements. See

Mohammad & Hawsawi Br. 18 (citing court hearings from

September 23, 2024).

32

b

The military judge next held the Secretary’s withdrawal

was unlawful because, by entering into stipulations of fact that

they attached to their offers of pretrial agreements,

Respondents began performing a promise contained in their

pretrial agreements. We hold this was clear and indisputable

error given the ordinary meaning of the withdrawal

regulation’s text, basic principles of contract law, and the plain

text of the pretrial agreements.

In determining whether the Secretary was authorized to

withdraw from the pretrial agreements, the decisive question is

whether entering into the stipulations of fact was “begin[ning]

performance” of a “promise[] contained in the [pretrial]

agreement[s].” R.M.C. 705(d)(4)(B). Because pretrial

agreements are interpreted in accordance with contract law, we

draw on those principles to interpret the withdrawal regulation.

See United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F.

1999).

To trigger the withdrawal regulation, there must first exist

a “promise.” In contract law, a promise is “a manifestation of

intention to act or refrain from acting in a specified way, so

made as to justify a promisee in understanding that a

commitment has been made.” RESTATEMENT (SECOND) OF

CONTRACTS § 2(1); see also 1 WILLISTON § 1:2. In other

words, a promise is a forward-looking commitment to engage

in certain conduct in the future. See RESTATEMENT (SECOND)

OF CONTRACTS § 55 cmt. b (explaining the definition of

“promise” requires an “element of futurity”); 1 FARNSWORTH

§ 1.01 (“[Contract law] is … concerned with exchanges that

relate to the future because a ‘promise’ is a commitment as to

future behavior.”).

33

The existence of a promise is not, however, enough to bar

the convening authority from withdrawing. That promise must

be contained in a pretrial agreement. Under the Rules for

Military Commissions, a pretrial agreement is formed when the

convening authority accepts and signs a proposed agreement

submitted by the accused. R.M.C. 705(d)(3); see also United

States v. Jacques, 5 M.J. 598, 599 (N.C.M.R. 1978) (“An

agreement is ‘made’ when both parties, [i.e.], the

accused … and the convening authority, have signed the

written pretrial agreement.”). Before then, there exists only an

“offer” from the accused to enter into a pretrial agreement,

which the convening authority may accept or reject in her “sole

discretion.” R.M.C. 705(d)(3).

Finally, an accused must “begin performance” of a

promise contained in a pretrial agreement. In contract law,

“performance” is “[t]he successful completion of a contractual

duty.” Performance, BLACK’S LAW DICTIONARY 1371. And

to “begin,” in ordinary English, is to “[s]et about doing,” “start

upon,” or “perform the first part of” something. SHORTER

OXFORD ENGLISH DICTIONARY 210 (5th ed. 2002). Putting

these terms together, an accused begins performance of a

promise within the meaning of the withdrawal regulation when

he starts to complete a forward-looking commitment contained

in an executed pretrial agreement.

The record in this case clearly establishes, and the parties

do not dispute, that Respondents entered into the stipulations

of fact before their pretrial agreements were fully executed. On

July 29, 2024, Mohammad and bin ‘Atash signed stipulations

of fact with the military prosecutor. The following day,

Hawsawi signed his stipulation with the prosecutor. The

stipulations thus were entered into on July 29 and 30. See

United States v. Dean, 67 M.J. 224, 228 (C.A.A.F. 2009)

(finding entry into a stipulation of fact occurred when the

34

accused and prosecutor signed it). Each Respondent then

submitted his proposed pretrial agreement, which included the

signed stipulation as an attachment, as an “[o]ffer” to

Convening Authority Escallier. On July 31st, Escallier

accepted and signed the offers. Because a pretrial agreement

is formed only upon the signature of both the accused and the

convening authority, Respondents’ pretrial agreements were

fully executed on July 31, one or two days after Respondents

entered into the stipulations of fact.

The timing of these events is fatal to Respondents’ claim

that they began performance of a promise contained in the

pretrial agreements by signing the stipulations. At the time the

stipulations were executed, there were no pretrial agreements

in existence and therefore no promises “contained in the

agreements” for Respondents to perform. The terms of the

agreements confirm this understanding, describing each

agreement with its attachments as a single “[o]ffer” that

became a binding “[a]greement” upon the Convening

Authority’s acceptance. See Mohammad PTA ¶ 62; bin ‘Atash

PTA ¶ 56; Hawsawi PTA ¶ 59. Because the executed

stipulations were attachments to the proffered pretrial

agreements, they were part of the offer to the Convening

Authority rather than something promised in the future under

the executed agreements.

Moreover, the pretrial agreements recognize that

Respondents had already agreed to the attached stipulations of

fact. See Mohammad PTA ¶ 7 (providing that the “Accused

has read and fully understands the Stipulation of Fact” and that

the stipulation “is a fair and accurate summary of the facts

supporting all charges and specifications to which he is

pleading guilty”); bin ‘Atash PTA ¶ 7 (similar); Hawsawi PTA

¶ 7 (similar). When Respondents signed the written

stipulations of fact they were not (and by definition could not

35

have been) beginning “performance” of any “promise” in their

pretrial agreements. 10

Respondents point to several provisions in the pretrial

agreements that supposedly reflect a promise to enter into the

stipulations of fact. In particular, each agreement provides that

10

Rather than ground its decision in the withdrawal regulation

or contract principles, the military judge relied on United States v.

Dean, 67 M.J. 224 (C.A.A.F. 2009). Dean involved a then-identical

withdrawal regulation in the court-martial context. See Rules for

Courts-Martial 705(d)(4)(B) (2008). The Court of Appeals for the

Armed Forces (“CAAF”) held that the convening authority could not

withdraw from a pretrial agreement because the accused had begun

performance of a promise by entering into a stipulation of fact before

the pretrial agreement was executed. Dean, 67 M.J. at 227–28.

Citing Dean, the military judge concluded that “[t]he timing of the

entry of such stipulation is not the issue; the act of doing so is what

begins performance.” Pretrial Agreement Order at 27.

We disagree. CAAF decisions, while instructive, do not control

our interpretation of the Commissions Act. See 10 U.S.C. § 948b(c)

(providing that the Uniform Code of Military Justice generally does

not apply to military commissions and that its “judicial

construction,” “while instructive,” is “not of its own force binding on

military commissions”). On this issue, we find Dean’s reasoning

unpersuasive and its facts distinguishable. The court did not explain

how its holding was consistent with the text of the withdrawal

regulation or basic principles of contract law. Cf. Dean, 67 M.J. at

231 (Baker, J., dissenting) (“[I]t is not clear how Appellant could, as

a matter of military or contract law, begin performing on a contract

that had not yet been signed by the convening authority and that had

not entered into force.”). Moreover, the court identified several

actions that counted as beginning performance, and one of those

actions occurred after the pretrial agreement was finalized. See id.

at 228. The pre-agreement entry into the stipulation of fact was

therefore not necessary to the court’s disposition. For these reasons,

we decline to follow Dean.

36

the Respondent “agrees to enter into the Stipulation of Fact

included as Attachment A to this Pretrial Agreement”; that “a

failure to enter into a Stipulation of Fact is a breach of a

material term of this Agreement”; and that the prosecution may

withdraw from the agreement if the Respondent “fails to enter

into the Stipulation of Fact.” Mohammad PTA ¶¶ 6, 46(e); bin

‘Atash PTA ¶¶ 6, 43(e); see also Hawsawi PTA ¶¶ 6, 44(e).

Respondents argue they performed these promises by signing

the written stipulations at Attachment A.

The cited provisions, however, are forward looking and

cannot promise something that already occurred by the time the

pretrial agreements were executed. To the extent these

provisions even promise future conduct, it must be the promise

that Respondents would formally enter the stipulations of fact

into evidence at their plea hearings before the military judge.

See R.M.C. 811(d), (f) (providing the parties must offer the

stipulations to the military judge and he must accept them

before they become binding); Enter, BLACK’S LAW

DICTIONARY 671 (“To put formally before a court or on the

record[.]”). This reading comports with other provisions in the

pretrial agreements that list entry into the stipulations with

other events to be performed in the future before or by the

military judge. See Mohammad PTA ¶ 46; bin ‘Atash PTA

¶ 43; Hawsawi PTA ¶ 44. As the parties agree, Secretary

Austin withdrew from the pretrial agreements before the

military judge convened the plea hearings. Respondents never

began performance because there was no plea hearing and

therefore no entry of the stipulations before the military

judge. 11

11

The dissenting opinion protests that the government did not

raise this argument, but it does not dispute the plain meaning of the

agreements. Dissenting Op. 38–42. Consistent with ordinary guilty

37

Respondents also stress the importance of the stipulations.

They explain the stipulations contain Respondents’ admissions

to every element of the charged offenses, thereby “provid[ing]

the Government the precise narrative of how, why, and by

whom the death-eligible crimes were committed.” Bin ‘Atash

Br. 17. This information would have aided the military judge

in assessing Respondents’ guilt and determining their

sentences.

We recognize the stipulations of fact were an important

part of negotiations between Respondents and the prosecution.

Indeed, the executed stipulations are perhaps best understood

as consideration Respondents offered, along with several

forward-looking promises (such as agreeing to plead guilty and

to enter the stipulations before the military judge), in exchange

for the Convening Authority’s promise not to seek the death

penalty. See Univ. S. Fla. Bd. Trs. v. United States, 92 F.4th

1072, 1082 (Fed. Cir. 2024) (explaining a party may offer past

actions along with promises of future conduct as consideration

for a contract); RESTATEMENT (SECOND) OF CONTRACTS § 80.

Even so, signing the pretrial agreements did not transform the

stipulations of fact at Attachment A into performance of a

promise in the pretrial agreements because those stipulations

were executed before any contractually binding promise was

plea and sentencing processes, the agreements contemplate that a

defendant will offer a statement of the relevant facts as part of the

entry of a guilty plea and sentencing. Accordingly, as the dissenting

opinion recognizes, Respondents’ stipulations of fact would play

multiple roles, including “in the ultimate plea hearing and

sentencing.” Dissenting Op. 4; see also id. at 20, 23; 1 FRANCIS A.

GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE

§ 12-25-11 (5th ed. 2020) (explaining that a stipulation of fact is used

to assess a guilty plea and at sentencing).

38

made. 12 See RESTATEMENT (SECOND) OF CONTRACTS § 55

cmt. b (“[I]f the offeror’s performance is complete at the

moment of acceptance, the element of futurity required by the

definition of ‘promise’ … is lacking.”). Nor could the signed

stipulations serve as performance of the promise to enter into

the stipulations before the military judge, because that entry

never took place.

In light of established principles of contract law and the

text of the pretrial agreements, Respondents did not begin

performance of any promise contained in the pretrial

12

As Williston explains, a contract based on past and future

actions “does not turn already-completed preeffective-date work into

work the first party was obligated to perform, when there had been

no obligation to perform it when it was performed.” 4 WILLISTON

§ 8:13; see also Univ. S. Fla. Bd. Trs., 92 F.4th at 1083 (holding that

when a party offers past and future work as consideration for a

contract “the already-completed … work remains not obligatory”).

Whether characterized as valid past consideration, executed

consideration, or consideration for a reverse unilateral contract, pre-

agreement actions offered as consideration do not constitute

performance of a promise contained in a later-executed contract. See

LEAKE & RANDALL, PRINCIPLES OF THE LAW OF CONTRACTS 30–31

(7th ed. 1921) (contrasting executed consideration, which does not

involve making a promise and “is voluntary and may be withheld,”

with executory consideration, which does involve making a promise

and is obligatory); 2 WILLISTON § 6:9 (explaining that for the typical

reverse unilateral contract, “the only binding promise is made by the

offeree”). Thus, under the dissenting opinion’s example, when the

painter finishes the front fence before the homeowner executes the

contract, the homeowner is still obligated under the contract to

compensate the painter for his pre-contract work. Dissenting Op. 52.

But the act of painting the front fence was not performance of a

promise in the contract because at the time he painted the fence, there

was no contractual duty for him to perform.

39

agreements when they signed their stipulations of fact. In

concluding otherwise, the military judge clearly erred.

c

Finally, the military judge found that Respondents began

performance by agreeing not to challenge the government’s use

of certain evidence during sentencing. For several years before

signing the pretrial agreements, Respondents contested the

admissibility of certain “Letterhead Memoranda,” which

documented confessions Respondents made to the Federal

Bureau of Investigation in 2007 and 2008. The admissibility

of these documents was an important subject in the

negotiations over the pretrial agreements. The parties

eventually agreed that certain parts of the Letterhead

Memoranda could be used against Respondents and that other

“red-boxed” sections in those Memoranda would be

inadmissible. The pretrial agreements incorporated this

compromise: The government promised not to ask

Respondents about the red-boxed parts of the Memoranda

during sentencing and, in return, Respondents promised not to

object to the admissibility of the remainder of the Memoranda.

The military judge concluded that by negotiating the red-

boxing, Respondents began performance of a promise in the

pretrial agreements.

This finding constitutes a double error. First, the

negotiations over which parts of the Memoranda would be

admissible occurred before the pretrial agreements were

executed. As with the stipulations of fact, actions taken before

a binding agreement is created cannot be performance of a

promise made in the agreement. Second, the military judge

failed to explain how Respondents began performance of the

relevant promise to withhold objections. Respondents

promised they would not object to the government introducing

40

the agreed-upon parts of the Memoranda as evidence for

sentencing purposes. But Secretary Austin withdrew from the

agreements before Respondents entered their guilty pleas and

before any sentencing proceedings began. The proceedings

never reached the stage at which Respondents’ promise would

be relevant, so Respondents did not begin (and could not have

begun) performance of this promise. The military judge erred

in concluding otherwise.

*****

Because the finding of performance by the military judge

was plainly erroneous, and none of Respondents’ other asserted

legal barriers to the Secretary’s withdrawal have merit, the

government has demonstrated a clear and indisputable right to

relief in this case.

B

In addition to demonstrating a clear and indisputable right

to relief under the law, a party seeking mandamus or

prohibition must establish that it has “no other adequate means

to attain the relief [it] desires[.]” Cheney, 542 U.S. at 380

(citation omitted). A petition for a writ of mandamus or

prohibition “may never be employed as a substitute for appeal.”

Will v. United States, 389 U.S. 90, 97 (1967). But if

“interlocutory appeal is unavailable, and appeal after final

judgment would be an inadequate form of relief[,]” mandamus

or prohibition may be warranted. Fokker Servs., 818 F.3d at

747.

In this case, the government has demonstrated that it has

no alternative “adequate means” of enforcing its right to

withdraw from these plea agreements by way of either an

interlocutory or direct appeal.

41

To start, no interlocutory appeal is available. The

Commissions Act allows the government to seek interlocutory

review by the CMCR in only four instances. 10 U.S.C.

§ 950d(a). Review is available when the military judge

(1) terminates a charge or specification, (2) excludes

significant evidence, (3) closes proceedings to the public or

accused, or (4) makes various rulings related to classified

evidence. Id. §§ 949d(c)–(d), 950d(a). None of these

circumstances apply here because the question is whether, with

the cases still open and pending, the military commission will

enforce three pretrial agreements and proceed to enter pleas

pursuant to their terms. The absence of any interlocutory

avenue for relief explains why the government pursued a

petition for writs of mandamus and prohibition in the CMCR.

And nothing in the Commissions Act provides for direct

interlocutory review in this court at all.

Bin ‘Atash argues that the government could seek

interlocutory appeal now because the military judge’s order

rejecting the Secretary’s withdrawal from the pretrial

agreements “terminates proceedings of the military

commission with respect to a charge or specification.” Id.

§ 950d(a)(1). Specifically, he argues the order is essentially an

order removing the death penalty, which—according to some

circuits—the government may appeal on interlocutory review

in the civilian criminal context. See United States v.

Moussaoui, 382 F.3d 453, 462–63 (4th Cir. 2004) (collecting

cases).

That argument has no purchase here. The relevant statute

in the civilian criminal context allows the government to appeal

an order dismissing an indictment or information “as to any one

or more counts, or any part thereof.” 18 U.S.C. § 3731

(emphasis added). The statute also expressly provides that its

provisions “shall be liberally construed to effectuate its

42

purposes.” Id. By contrast, nothing in the text of the

Commissions Act authorizes interlocutory appeal from partial

dismissals or provides that its terms must be liberally

construed. See 10 U.S.C. § 950d. So at best, bin ‘Atash’s

proposed path for review is far too tenuous to be an adequate

alternative for the government.

Nor is there a reliable path to obtain effective relief after

final judgment. It is well established that “in the federal

jurisprudence, at least, appeals by the Government in criminal

cases are something unusual, exceptional, not favored.”

Carroll v. United States, 354 U.S. 394, 400 (1957). The

government cannot appeal a final criminal judgment “absent

express legislative authorization to the contrary.” Arizona v.

Manypenny, 451 U.S. 232, 246 (1981); see also United States

v. Scott, 437 U.S. 82, 84–85 (1978) (“The Court has long taken

the view that the United States has no right of appeal in a

criminal case, absent explicit statutory authority.”).

The question in this case, then, is whether the

Commissions Act authorizes the government to appeal a

military commission’s final judgment. Respondents point to

two pathways by which the government might appeal. Neither

is adequate in these circumstances.

The first proposed route goes through the CMCR. Under

the Commissions Act, whenever a military commission enters

a final decision that includes a finding of guilt, the convening

authority must refer the case to the CMCR. 10 U.S.C.

§ 950c(a). The scope of review in that court, however, is

statutorily limited to matters “properly raised by the accused.”

Id. § 950f(c) (emphasis added). The statute makes no provision

for review of claims by the government.

43

Once the CMCR issues its decision, this court has

exclusive jurisdiction to review that ruling. Id. § 950g(a). But

even then, our review is statutorily confined to matters raised

before the CMCR—namely, those issues raised by the accused.

Again, no apparent route for the government to appeal issues

not raised by the accused—such as a challenge to the entry of

a guilty plea—is provided, even assuming the government can

appeal at all.

The second route of review bypasses the CMCR. See id.

§ 950g(c)(2). Under the Commissions Act, defendants may

waive their right to an automatic appeal to the CMCR. Id.

§ 950c(b). All three Respondents have agreed to execute such

waivers in their pretrial agreements. See Mohammad PTA

¶ 34; bin ‘Atash PTA ¶ 34; Hawsawi PTA ¶ 34. When a

defendant waives appeal to the CMCR, we have jurisdiction to

review directly the final judgment of the military commission.

10 U.S.C. § 950g(a)–(b).

While the Commissions Act authorizes our review under

this pathway, the statute does not expressly authorize the

government to bring an appeal after entry of final judgment.

This absence is noteworthy. Congress has expressly authorized

the government to appeal certain sentencing decisions in the

civilian and court-martial context, but it has not made similar

provision for the government in military commission cases.

Compare 18 U.S.C. § 3742(b), and 10 U.S.C. § 856(d), with 10

U.S.C. § 950d, and 10 U.S.C. § 950g.

In any event, we need not—and do not—decide whether

Section 950g would permit the government to appeal a military

commission’s final judgment directly to this court. Even if the

government could overcome the presumption against

prosecutorial appeals in criminal cases and invoke our

jurisdiction, that alternative would still be inadequate because

44

it “would come with its own attendant risks.” See Fokker

Servs., 818 F.3d at 749. If the government could challenge the

validity of the pretrial agreements only after guilty pleas have

been entered, sentences imposed, and final judgments

rendered, a successful appeal could leave the government’s

ability to try Respondents significantly hampered.

In particular, Respondents likely would claim

irredeemable prejudice from being tried after admitting to the

facts of their guilt on the record and under oath during both plea

and sentencing hearings. Should their pleas go forward, each

of them would be “questioned under oath about the offenses

and/or the Government’s averment of evidence” during a plea

hearing. R.M.C. 910(e).

As for sentencing, under the Commissions Act, sentences

are determined not by judges, but by “members” of the

commission in what would, under these pretrial agreements, be

public proceedings. 10 U.S.C. § 949m(b); Trial Tr. 51686:3–

15, Jan. 8, 2025 (J.A. 419). Given the scope of evidence in

these cases, the government has represented, and Respondents

do not dispute, that the sentencing phase trials will likely

involve “a several-month presentation” that will “establish the

historical record.” Trial Tr. 51685:16–18, Jan. 8, 2025 (J.A.

418). As terms of their pretrial agreements, Respondents have

waived most grounds for objecting to the evidence presented at

these hearings. Mohammad PTA ¶ 13; bin ‘Atash PTA ¶ 13;

Hawsawi PTA ¶ 13.

Mohammad, for example, has agreed that the prosecution

may introduce, among other things, statements he made while

in custody, documentary evidence from searches, forensic

testing results of any physical evidence, and victim-impact

evidence. Mohammad PTA ¶ 12(ii), (viii), (xix)–(xx), (xxiii),

(xxiv). For this final category, Mohammad has represented

45

through counsel that he “envision[s] giving maximum

opportunity to any victim witness, individuals, family

members, or survivors who are interested in being heard[.]”

Trial Tr. 51686:10–12, Jan. 8, 2025 (J.A. 419). Given the

magnitude of evidence likely to be presented at sentencing and

their admissions of guilt, Respondents would likely claim that

no subsequent trial could be fair.

In light of the daunting procedural and substantive

roadblocks facing a government appeal (if any) from the entry

of final judgments in these cases, the government has

demonstrated that it has no reliable and “adequate” alternative

avenue to obtain the relief it seeks—an opportunity to try these

three Respondents and seek the death penalty. That substantial

uncertainty satisfies the adequate-alternative prong of the

mandamus test. Fokker Servs., 818 F.3d at 749 (granting

mandamus when forcing the government to appeal after final

judgment carried a substantial risk that the government would

be unable to re-indict the defendant).

C

Finally, we must determine whether the writs are

“appropriate under the circumstances.” Fokker Servs., 818

F.3d at 750 (quoting Cheney, 542 U.S. at 381). “Although the

remedy by mandamus [or prohibition] is at law, its allowance

is controlled by equitable principles.” United States ex rel.

Greathouse v. Dern, 289 U.S. 352, 359 (1933). Considering

the “totality of the circumstances,” we conclude it is proper to

grant the writs in this case. In re Kellogg Brown & Root, Inc.,

756 F.3d 754, 762 (D.C. Cir. 2014).

The military judge determined that (1) Secretary Austin

lacked the power to partially withdraw the convening authority

after it was delegated to Escallier, and (2) even if the Secretary

46

could assume part of the convening authority, his withdrawal

from the pretrial agreements was untimely under the

regulations. Both conclusions rested on clear legal error, as

already explained. Correction of these errors is necessary and

appropriate because of the significant national interest in the

disposition of these cases, which have implications for the

military chain of command under the Commissions Act and for

the proper functioning of military commissions. See Colonial

Times, Inc. v. Gasch, 509 F.2d 517, 524 (D.C. Cir. 1975)

(finding mandamus appropriate to “forestall future error in trial

courts” and “eliminate uncertainty” in important areas of law).

First, the prosecutions of Mohammad, bin ‘Atash, and

Hawsawi implicate a national interest of the highest degree.

See Nat’l Wildlife Fed’n v. United States, 626 F.2d 917, 924

(D.C. Cir. 1980) (“[T]he exercise of discretion to issue a writ

of mandamus … must be guided by the court’s perception of

the public interest.”). Respondents are the alleged mastermind

and two alleged co-conspirators behind the terror attacks of

September 11, 2001, which killed nearly three thousand people

on American soil. The families of the victims and the

American public have a strong interest in bringing the

perpetrators to justice. Congress entrusted the prosecution of

these war crimes to the Secretary of Defense, under the

direction and supervision of the President. In particular, the

judgment about whether Respondents should face the death

penalty is a grave one that requires political accountability.

Failing to recognize the Secretary’s overarching responsibility

for the appropriate resolution of these prosecutions, the

military judge barred the Secretary from reasserting a part of

the convening authority that had been delegated to a

subordinate. Because this case implicates the interests of the

entire nation, the military judge’s legal error must be corrected

so the prosecutions may proceed according to the Secretary’s

best judgment.

47

Second, the military judge’s reasoning has wide

implications for the Secretary’s ability to execute his legal

duties. As already explained, in the Commissions Act,

Congress established the Secretary of Defense as the superior

convening authority for military commissions. The Secretary

also has administrative authority over military commissions,

which he may exercise directly or delegate at his discretion.

Even when he delegates authority to a subordinate, however,

he retains responsibility for the exercise of that authority and

may revoke that delegation in whole or in part.

Contrary to this framework, the military judge held the

Secretary could not partially withdraw his delegation of

convening authority unless specifically authorized to do so.

Nothing in the Commissions Act requires the Secretary to

exercise all of the convening authority or none at all. The

military judge’s error undermines political legitimacy and

accountability in the context of military commissions by

placing an inferior convening authority beyond the Secretary’s

superintendence. Because the military judge’s order imposes

an “unwarranted impairment” of the Secretary in the

performance of his duties in this critical national security

context, mandamus and prohibition are appropriate. Cheney,

542 U.S. at 390.

Finally, the military judge’s erroneous interpretation of the

withdrawal regulation will unduly limit the ability of future

convening authorities to negotiate and withdraw from pretrial

agreements. The withdrawal regulation allows some flexibility

for the convening authority to withdraw from a pretrial

agreement before an accused begins performance of a promise

in the agreement. See R.M.C. 705(d)(4)(B). The military

judge concluded Respondents began performing promises in

the pretrial agreements based on acts that occurred before the

48

signing of the agreements and acts that had no relation to the

actual promises made. The likely consequence of this

erroneous interpretation is that many, if not most, pretrial

agreements will become irrevocable upon signing, thus

effectively eliminating the flexibility provided by the

withdrawal regulation. In addition, a rule that performance

occurs at the moment the convening authority signs an

agreement would obligate the Secretary of Defense to divert

his attention from other matters to the close superintendence of

every plea agreement, at the risk of being irrevocably bound by

a subordinate’s decisionmaking. 13 This would raise the stakes

of entering into a pretrial agreement, which in turn could

impede negotiations and frustrate the formation of such

agreements. Mandamus and prohibition are warranted when a

challenged decision would have “enormous practical

consequences for the government’s ability to negotiate future

settlements.” Fokker Servs., 818 F.3d at 750 (quoting United

States v. Microsoft, 56 F.3d 1448, 1456 (D.C. Cir. 1995)).

Respondents counter that issuing the writs is inappropriate

because the government spent years negotiating these pretrial

agreements and should not be given a second bite at the apple.

Secretary Austin, they claim, had been aware of these

negotiations but chose not to intervene sooner. Moreover,

restarting the prosecution would result in many more years of

litigation with only a speculative possibility of securing the

13

Respondents argue the Secretary had other means of control

and supervision at his disposal, such as prospectively limiting

Escallier’s power to enter into pretrial agreements or prohibiting

particular terms in the agreements. See R.M.C. 705(a). The

availability of these other tools, however, does not extinguish the

Secretary’s ongoing responsibility of supervision, nor does it

eliminate his authority to take back the convening authority from a

subordinate and exercise it himself.

49

death penalty and would postpone finality and closure for

Respondents and the American public.

Although Respondents criticize the Secretary’s approach,

nothing in his lawful choices renders mandamus and

prohibition inappropriate. The government has adequately

explained that Secretary Austin delayed action to avoid an

unlawful influence challenge, waiting to see what type of

agreement, if any, would result from the negotiations and only

then deciding whether intervention was necessary. See 10

U.S.C. § 949b(a)(2)(B). In these proceedings, Respondents

have asserted numerous unlawful influence challenges against

various government officials, including the Secretary of

Defense. For example, when a former Secretary removed the

convening authority in 2018, Respondents’ co-defendant filed

a motion to dismiss all charges for unlawful influence, arguing

the termination was in retaliation for the convening authority’s

decisions. See Al Baluchi’s Motion to Dismiss for Unlawful

Influence, United States v. Mohammad, AE 555 (AAA) (U.S.

M.C.T.J. Feb. 9, 2018). Although the military judge ultimately

rejected this challenge, it required extensive factual findings

and took nearly a year to resolve. To avoid additional

litigation, Secretary Austin chose to stay his hand and allow

negotiations to run their course. When he found the resulting

agreements unacceptable and contrary to the public interest, he

promptly reclaimed part of the convening authority and

withdrew from the agreements. This was reasonable and

consistent with the Secretary’s responsibilities.

Having properly assumed the convening authority, the

Secretary determined that the “families and the American

public deserve the opportunity to see military commission trials

carried out.” The Secretary acted within the bounds of his legal

authority, and we decline to second-guess his judgment. In

light of the clear and indisputable errors committed by the

50

military judge, which implicate issues of immense national

importance, we conclude that issuance of the writs is

appropriate under these circumstances.

IV

Because the government has satisfied the stringent criteria

for granting writs of mandamus and prohibition, we grant the

writs, vacate the military judge’s order of November 6, 2024,

preventing the Secretary of Defense’s withdrawal from the

pretrial agreements, and prohibit the military judge from

conducting hearings in which Respondents would enter guilty

pleas or take any other action pursuant to the withdrawn pretrial

agreements. The stay pending disposition of the petition will

be dissolved in 21 days, when the order accompanying this

opinion becomes effective. See D.C. Cir. Local Rule 41(a)(3).

So ordered.

WILKINS, Circuit Judge, concurring in part and dissenting

in part:

We must decide whether the government has shown

clearly and indisputably that the Military Judge at Guantanamo

Bay clearly erred when he held that Respondents “beg[an]

performance of promises contained in the agreement[s]” as

contemplated by the Rules for Military Commissions. The

plain text of the agreements, the language of the controlling

regulations, the considered judgment of the Military Judge and

the deference we owe him, the contract doctrines of promise

and formation, and the demanding standard of review that the

government must satisfy all point to one conclusion: The

government did not—indeed, cannot—establish a clear and

indisputable right to relief.

We have every reason to believe the opposite. The

accused clearly and indisputably began performance of at least

three of the many promises they made. First, Respondents

agreed to enter into factual stipulations, which they began

performing by signing the stipulations. Second, Respondents

began performance on their promises to waive all waivable

motions by refraining at a motions hearing from prosecuting a

pending motion to suppress. Third, that same conduct

constituted beginning performance on a promise to move to

withdraw pending motions. The Military Judge, Col McCall,

who has presided over September 11 proceedings for years, got

it right when he found that the Secretary of Defense was

prohibited by the military commission rules from reneging on

the plea agreements. And the U.S. Court of Military

Commission Review, reviewing the same flawed arguments

the government raises here, appropriately exercised its limited

authority by applying the correct standard of review and

denying the writ petition.

Against that backdrop, the Court’s holding is stunning.

Not only does the majority believe that Respondents did not

2

begin performance, but it holds that the government established

a clear and indisputable right to a writ of mandamus or

prohibition. It does so without citing a single case, statute, or

other authority that requires issuing such extraordinary relief.

Instead, the Court substitutes its own gloss on contract law—

which does not constrain the reach of a military rule—for the

weight of authority needed to support a successful mandamus

petition. And it dilutes the government’s burden by failing to

respect a military court’s considered judgment about the

application of the governing military regulation, which requires

only that Respondents begin (and not complete) performance

before the Secretary is precluded from withdrawing from the

agreements. Settled law requires that courts like ours defer to

the decisions of military courts, particularly when (like here)

those courts interpret military rules. Yet such deference is

conspicuously absent from the majority’s opinion. No matter

how high the national interest, both the governing military rule

and our precedent require more.

I join sections III.A.1 and III.B of the Court’s opinion,

which rightly determine that the Secretary of Defense had

authority to withdraw Convening Authority Escallier’s ability

to enter into plea agreements and that, aside from a writ of

mandamus or prohibition, the government lacks an adequate

and alternative means of obtaining relief. As for the rest, the

majority makes a grave error. The government has not come

within a country mile of proving clearly and indisputably that

the Military Judge erred, much less committed clear error when

he applied the withdrawal regulation. Because a writ of

mandamus or prohibition should issue only if the government

makes such a showing, I respectfully dissent.

3

I.

The facts giving rise to this dispute are highly unusual.

Respondents are charged with orchestrating the deadliest

terrorist attack in our nation’s history. Several of the charges

are capital offenses, for which the government may seek the

death penalty for any guilty party. Pretrial proceedings at

Guantanamo Bay have lasted for nearly two decades.

As early as May 2017, the government expressed interest

in discussing the “potential for pretrial agreements” in these

cases. In March 2022, a prosecutor again reached out to

Respondents to “begin to negotiate whether pre-trial

agreements [we]re possible.” J.A. 26. About a week later, the

parties indicated that negotiations were sufficiently successful

to warrant vacating upcoming hearing dates to allow time for

further negotiations. Among the topics of negotiation was the

contents of the stipulations of fact that each Respondent would

be required to enter. The government characterized the

stipulations as one of “the two most important aspects of the

Prosecution’s willingness to endorse any pre-trial agreements

in this case.” J.A. 198. The government initially drafted the

stipulations, and the parties rigorously bargained over their

contents. See J.A. 232 (“We did spend a lot of time on the

Stipulations of Fact.”); Al Hawsawi & Mohammed Resp. to

Order of Mar. 4, 2025 (Sealed), Attach. B, at B-75 to B-76

(Mar. 7, 2025), Dkt. No. 2104532.

After 27 months, the parties’ negotiations culminated in

written pretrial agreements (“PTAs”). In exchange for the

government taking the death penalty off the table, Respondents

“agreed to plead guilty to all of the charged offenses, including

the murder of the 2,976 people listed in the charge sheet, and

to be later sentenced by a panel of military officers.” J.A. 203.

Factual stipulations were appended to each PTA as Attachment

4

A, and they served as full confessions of Respondents’

involvement in planning and executing the September 11

attacks. Mohammed and bin ‘Atash signed the PTAs on July

29, 2024, and signed the factual stipulations the same day. Al

Hawsawi signed his PTA and then the attached stipulation on

July 30. The trial prosecutor signed each stipulation the same

day as each Respondent. The stipulations were to play multiple

roles in the ultimate plea hearing and sentencing, including

establishing the factual basis for the guilty plea and aiding the

court at sentencing. Within 48 hours of Mohammed and bin

‘Atash’s signatures, and only 24 hours of Al Hawsawi’s, the

Convening Authority countersigned each of the PTAs on July

31, 2024.

The next day, August 1, the parties convened for a hearing

on a motion to suppress jointly filed by Respondents and

another co-defendant, Ammar al Baluchi. The Military Judge

discussed potentially severing al Baluchi’s case from the other

three Respondents because he had not entered into a PTA. The

government argued that severance was unnecessary until the

court accepted the guilty pleas, but stated its position that “with

the waiver of all motions from three of the four accused,

[Respondents could not] actively continue to participate in any

of the contested litigation based on the pretrial agreement.”

J.A. 224–25. al Baluchi’s attorney agreed, as did the Military

Judge. Respondents did not question the FBI witness at the

hearing. The hearing continued into the following day, when

Al Hawsawi’s counsel indicated that he refrained from

cross-examining the witness because the PTAs required it.

After the August 2 hearing, the Defense Secretary issued a

memo withdrawing from each of the three PTAs. See

Memorandum from Lloyd Austin, Sec’y of Def. to Susan

Escallier, Convening Authority for Mil. Comm’ns (Aug. 2,

2024), https://media.defense.gov/2024/Aug/02/2003517325/-

5

1/-1/1/Secretary-of-Defense-Memorandum-for-Convening-

Authority-for-Military-Commissions.pdf

[https://perma.cc/T2U7USF6]. Respondents successfully

challenged this change in position before the Military Judge,

who entered an order scheduling the pleas pursuant to the

PTAs. Pet. for a Writ of Mandamus & Prohibition Ex. A

[hereinafter Pet. Ex. A]. The government then petitioned the

U.S. Court of Military Commission Review (“CMCR”) for a

writ of mandamus to halt the plea hearing, which that court

denied. Pet. for a Writ of Mandamus & Prohibition Ex. B

[hereinafter Pet. Ex. B]. Hoping that the third time really is the

charm, the government now seeks a writ from our Court, asking

us to hold that these two military tribunals were incorrect and

to halt the plea hearings.

II.

I start with the burdensome standards of review—first,

how we consider the Military Judge’s determination that

Respondents began performance, and second, what a petitioner

must show to obtain mandamus relief. Both because of the

fact-laden nature of the Military Judge’s ruling below, and

since mandamus review is heavily circumscribed, the

government must prove that exceptional circumstances warrant

the extraordinary relief it requests. The majority gives the

government a free pass by getting the former standard wrong

and acknowledging but not applying the latter.

At bottom, this case concerns a military judge’s

application of a military procedural rule. The Military Judge

applied Rule for Military Commissions (“R.M.C.”)

705(d)(4)(B) (“withdrawal regulation”), which restricts the

Convening Authority’s power to withdraw from a PTA to “any

time before the accused begins performance of promises

contained in the agreement.” Pet. Ex. A at 15 (quoting R.M.C.

6

705(d)(4)(B)). To do so, he engaged in a predominantly factual

(not legal) inquiry. He first interpreted the PTAs to determine

the relevant commitments that both parties made. He then

assessed Respondents’ conduct and the proceedings before

him, and he held that each “began performance” of several of

those promises. Id. at 26. The majority erroneously reviews

every issue de novo. But that standard applies only to our

interpretation of the withdrawal regulation itself. Instead, we

must review the Military Judge’s application of the Rule for

clear error because it poses a mixed question of fact and law in

which factual issues dominate.

Clear-error review in a typical case requires substantial

deference. But here, extraordinary deference is warranted

because the government seeks to upend the Military Judge’s

application via a mandamus petition. That doubly deferential

posture is fortified by precedent instructing that non-military

courts should extend deference to military tribunals,

particularly in the interpretation of military law. To prevail,

the government must do more than establish that the Military

Judge got it wrong. It must clearly and indisputably show that

the Military Judge’s application of Rule 705(d)(4)(B) was

clearly erroneous. Proper application of these standards

compels only one conclusion: denying the petition.

A.

The majority believes we review de novo the Military

Judge’s application of the withdrawal regulation. Majority Op.

18–20. In its view, “whether Respondents’ conduct constituted

[the beginning of] performance of a promise that is contained

in the agreements” is merely a dispute “over what the words in

the [PTAs] mean” because the government does not contest the

“facts” below. Id. at 18. That conclusion is wrong. We review

for clear error the Military Judge’s decisions about the scope of

7

the PTAs’ promises and whether Respondents began

performance of those promises because both present

predominantly factual inquiries.

1.

Consider the several steps involved in the Military Judge’s

application of the Rule. He necessarily made a threshold legal

determination about what the withdrawal regulation requires.

Pet. Ex. A at 15–17. What did the Executive Branch intend for

“begins performance of promises contained in [a PTA]” to

mean in R.M.C. 705(d)(4)(B)? That, of course, implicates a

legal question on review. See Bufkin v. Collins, 145 S. Ct. 728,

738 (2025).

But then the Military Judge had to make two other,

primarily factual, determinations. First, to assess whether

Respondents began performance of promises in the PTAs, he

necessarily decided the existence and scope of relevant

promises. That is, what conduct did the parties intend their

contractual promises to require? Second, the Military Judge

determined whether the facts before him—measured by the

parties’ conduct and demeanor, along with the surrounding

circumstances, like the context of the negotiations and the

history of the case—established that Respondents “beg[an]

performance” under R.M.C. 705(d)(4)(B).

The Military Judge thus determined that performance

under the PTAs “began in a number of ways.” Pet. Ex. A at

26. First, performance began when “[a]ll three Accused signed

lengthy confessional stipulations of fact, which could be used

to establish their guilt and for the Panel Members to determine

an appropriate sentence.” Id. The “agreed-to Stipulations of

Fact” became “binding” only when the Convening Authority

signed the PTAs. Id. at 7. The Military Judge’s holding that

8

Respondents “began performance” by “sign[ing] lengthy

confessional stipulations of fact,” id. at 26, necessitated an

antecedent factual finding that each agreement to enter into

stipulations of fact was a “promise[] contained in the [PTAs],”

R.M.C. 705(d)(4)(B). To find such a promise, he pointed to

language in the PTAs that Respondents “agreed to enter, and

did in fact enter, into a Stipulation of Fact with the Trial

Counsel, which could be used to establish guilt and aid the

Panel Members in adjudging an appropriate sentence.” Pet. Ex.

A at 7 & n.33 (footnotes omitted) (citing Pet. for a Writ of

Mandamus & Prohibition Ex. D ¶¶ 6–7 [hereinafter

Mohammed PTA]; Pet. for a Writ of Mandamus & Prohibition

Ex. E ¶¶ 6–7 [hereinafter bin ‘Atash PTA]; Pet. for a Writ of

Mandamus & Prohibition Ex. F ¶¶ 6–7 [hereinafter Al

Hawsawi PTA]).

Second, the Military Judge held that Respondents began

performance when they “refrained from examining the

witness(es) for pretrial motions while the Prosecution and

Defense Counsel for Mr. Ali [al Baluchi] questioned those

same witnesses.” Id. at 26. In support, he highlighted that the

prosecutor “himself insisted upon that course of action so that

the Defense teams did not violate a material term of their

agreements,” id. (footnote omitted), and observed that “Trial

Counsel took the position that the waive all waivable motions

provisions” precluded the accused from “examin[ing] the

witness,” id. at 8 n.41 (citation omitted); see Mohammed PTA

¶ 23; bin ‘Atash PTA ¶ 22; Al Hawsawi PTA ¶ 23.1

1

Al Hawsawi also argued before the Military Judge that he began

performing on a promise contained in the PTA on August 2, when

his counsel asked to schedule entry of his guilty plea the following

week. Pet’r 28(j) Letter, Attach. 7, at 3, 6 (Feb. 5, 2025), Dkt. No.

2099089; Al Hawsawi PTA ¶ 56 (“The parties agree to ask the

military commission to schedule the entry of pleas to occur within

9

2.

Both determinations—about the meaning and scope of the

promises in the PTAs, and second, whether Respondents began

performance of a promise—present questions that we review

for clear error.

a.

Start with the former. “A pretrial agreement is a contract

between the accused and the convening authority. Therefore,

‘we look to the basic principles of contract law when

interpreting [one].’” United States v. Lundy, 63 M.J. 299, 301

(C.A.A.F. 2006) (quoting United States v. Acevedo, 50 M.J.

60 days of any signed Pretrial Agreement.”); see also Pet’r Resp. to

Order of Mar. 4, 2025, at 49419:13–14 (Mar. 5, 2025), Dkt. No.

2103963 (“Mr. [A]l Hawsawi has asked us to communicate to the

commission that he would prefer to try and enter the plea during this

session . . . .”); Pet’r Resp. to Order of Apr. 14, 2025 (Sealed),

Attach. 5, at App. 914 (Apr. 15, 2025), Dkt. No. 2111203 (Al

Hawsawi first asking on August 1, 2024, “to enter his plea in the first

week of the September hearings”). The Military Judge did not rule

on whether Al Hawsawi or any other Respondent began performance

of this promise. See Pet. Ex. A at 25–28; see also Pet’r Resp. to

Order of Apr. 14, 2025 (Sealed), Attach. 1, at App. 5 (Apr. 15, 2025),

Dkt. No. 2111203 (government’s representation that Mohammed

requested to enter plea on August 7, 2024, and bin ‘Atash requested

August 8, 2024). Nor did the CMCR reach the issue. See Pet. Ex. B

at 15–18. And before this Court, Respondents did not brief the claim

or suggest at oral argument that we could deny the government’s

petition on this alternative ground for beginning performance. Cf. Al

Hawsawi & Mohammed Resp. to Order of Jan. 30, 2025, at 2–3 (Jan.

30, 2025), Dkt. No. 2097662 (citing evidence of beginning

performance on scheduling promises, but only in response to the

Court’s question). Accordingly, I decline to decide the question in

the first instance.

10

169, 172 (C.A.A.F. 1999)) (cleaned up); see also United States

v. Jackson, 26 F.4th 994, 1000 (D.C. Cir. 2022). And contract

law requires us to discern the “objective” meaning of the

parties’ language as a manifestation of their intent, which “is

found in the transaction and its context rather than in the law or

in the usages of people other than the parties.” RESTATEMENT

(SECOND) OF CONTRACTS § 212 (AM. L. INST. 1981)

[hereinafter RESTATEMENT].

In criminal litigation, what parties mean and intend in plea

agreements often manifests in fact-bound proceedings that

occur before a trial court judge, measured by judges with

real-world experience in resolving these unique “contractual”

disputes. Thus, our sister circuits largely hold that that “[w]e

review the district court’s interpretation of the terms of a plea

agreement for clear error.” Allen v. Hadden, 57 F.3d 1529,

1534 (10th Cir. 1995); see also United States v. Borders, 992

F.2d 563, 566–67 (5th Cir. 1993) (same); United States v.

Mejia, 55 F.4th 1, 7 (1st Cir. 2022) (same); United States v.

Fields, 763 F.3d 443, 453 (6th Cir. 2014) (same); United States

v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985) (similar); cf.

United States v. Daniels, 902 F.2d 1238, 1243 (7th Cir. 1990);

United States v. Halford, 948 F.2d 1054, 1056 (8th Cir. 1991);

United States v. Tripodis, 94 F.4th 1257, 1263 (11th Cir. 2024);

United States v. Jones, 215 F.3d 1322 (4th Cir. 2000)

(unpublished table decision). In Allen, for instance, the district

court interpreted the term “government” in a written plea

agreement to bind only one agency (the parole commission), as

opposed to all government entities. 57 F.3d at 1535. But based

on both the text of the agreement and the prosecutor’s

representations at a hearing, the Tenth Circuit held that the

11

district court’s finding of fact as to the scope of the term was

clearly erroneous. See id. at 1536.2

And in the military justice context, trial judges are required

to ensure “that the written agreement encompasses all of the

understandings of the parties and that the judge’s interpretation

of the agreement comports with their understanding of the

meaning and effect of the plea bargain.” United States v.

Green, 1 M.J. 453, 456 (C.M.A. 1976); R.C.M. 910(f)(4)

(discussion) (“If the plea agreement contains any unclear or

ambiguous terms, the military judge should obtain clarification

from the parties.”); R.M.C. 901(f)(2) (discussion) (same); see

also MANUAL FOR COURTS-MARTIAL UNITED STATES, App. 21,

at A21-53 (1984) [hereinafter 1984 MCM] (R.C.M. 910(f)

“conform[s] to those [procedures] prescribed in” Green). This

is because “[j]udicial scrutiny of plea agreements at the trial

level . . . provide[s] invaluable assistance to appellate tribunals

by exposing any secret understandings between the parties and

by clarifying on the record any ambiguities which lurk within

2

The government also wrongly contends that our precedent

invariably requires us to interpret plea agreements de novo. Pet’r

Reply 15. While we frequently have reviewed disagreements

regarding pretrial agreements de novo, see, e.g., United States v.

Jones, 58 F.3d 688, 691 (D.C. Cir. 1995); United States v.

Moreno-Membache, 995 F.3d 249, 254 (D.C. Cir. 2021) (same);

United States v. Munafo, 123 F.4th 1373, 1380 (D.C. Cir. 2024)

(same), none of these cases involved a dispute about the scope of a

contract term. Nor has the government pointed to a single Circuit

case reviewing a contract de novo where the parties’ intentions were

materially in dispute. The same is true as to the government’s

invocation of United States v. Dean, which did not involve a dispute

about the scope of a term in the pretrial agreement. 67 M.J. 224, 229

(C.A.A.F. 2009) (“[N]either the purpose nor the result of the military

judge’s inquiry in this case was to ascertain whether the parties

disagreed as to a material term.”).

12

the agreements.” Green, 1 M.J. at 456; see also United States

v. Williams, 60 M.J. 360, 363 (C.A.A.F. 2004) (recognizing

“the critical role that a military judge plays during a plea

colloquy in ensuring that the record reflects a clear, shared

understanding by the parties of the terms of the agreement”)

(interpreting R.C.M. 704(d)(4)(B) (2002)).

The majority nevertheless persists in reviewing the scope

of the promises de novo based on its conclusion that the PTAs

are unambiguous and require no resort to extrinsic evidence.

Majority Op. 17–21 & n.4.3 That approach relies on dicta from

Travelers Indemnity Co. v. Bailey, 557 U.S. 137, 150 (2009),

which notes that “the terms of an unambiguous private contract

must be enforced irrespective of the parties’ subjective intent.”

Id. at 19. Yet simply repeating a legal proposition in the

abstract cannot establish that the PTAs at issue are

unambiguous. See id. at 19–20 (quoting Bode & Grenier, LLP

v. Knight, 808 F.3d 852, 862 (D.C. Cir. 2015), for general

proposition on a contract’s plain text). Nor does the majority

get any closer to its bottom line by observing that the PTAs

were jointly drafted and “written down in substantial detail,”

which does not render them unambiguous as a matter of law.

Id. Many contracts are jointly drafted and most, if not all, are

detailed.

By insisting that the PTAs’ terms are unambiguous and

must be interpreted solely by reference to the terms’ dictionary

definitions, see Majority Op. 24–25, 29–30, 36; see also infra

Section IV.A, the majority misses the forest for the trees.

“[M]eaning can almost never be plain except in a context.”

RESTATEMENT § 212 cmt. b. Even on de novo review, “[a]ny

3

Even if the majority were correct that its analysis targets only the

Military Judge’s legal conclusions, we should still deny the

government’s petition. See infra Parts III & IV.

13

determination of meaning or ambiguity should only be made in

light of the relevant evidence of the situation and relations of

the parties, the subject matter of the transaction, preliminary

negotiations and statements made therein, usages of trade, and

the course of dealing between the parties.” Id. Whereas the

Military Judge adequately considered these circumstances, the

majority neglects them. Not only was the Military Judge right

to engage with the relevant context below, but also our Court,

even on de novo review, often “consider[s] the district court’s

expert vantage point” on these types of inquiries. Cf. United

States v. Adams, No. No. 24-3005, 2025 WL 1668481, at *8

(D.C. Cir. June 13, 2025) (collecting cases).

In any event, the relevant terms of the PTAs are ambiguous

when placed in their appropriate context. We cannot properly

construe the PTAs as unambiguous unless we determine “that

whatever the extrinsic evidence might show, it could not

change the intent of the parties as expressed in the writing.” 11

RICHARD A. LORD, WILLISTON ON CONTRACTS § 30:5 (4th ed.

2024) [hereinafter WILLISTON]; 5 TIMOTHY MURRAY, CORBIN

ON CONTRACTS § 24.3 (Matthew Bender & Co. 2024)

[hereinafter CORBIN] (“In the usual case, an unambiguous

contract leaves no room for a subjective evaluation of the

parties’ understanding of the terms.”). Indeed, the majority

itself cites Williston’s discussion of ambiguity, Majority Op.

19, but that treatise recognizes that assessing ambiguity

requires a court to consider the contract and the surrounding

circumstances, including extrinsic evidence. 11 WILLISTON

§ 30:5. And even if the majority were correct that the PTAs

are unambiguous, it errs by interpreting them “in a vacuum,”

when “the underlying goal . . . is to ascertain the intent of the

parties, and the surrounding circumstances . . . may well shed

light on that intent.” Id. § 30:6.

14

As illustrated infra Section III.C, my disagreement with

the majority’s interpretation of the agreements reflects that “the

language in question is subject to two reasonable

interpretations.” 2 E. ALLAN FARNSWORTH & ZACHARY

WOLFE, FARNSWORTH ON CONTRACTS § 7.15 (4th ed. 2025)

[hereinafter FARNSWORTH]. The disagreement, though, is not

just between me and the majority. Take the promise to move

to withdraw from pending motions and whether the “scope” of

that promise included refraining from litigating a pending

motion to suppress. The Military Judge, the government’s trial

prosecutor, defense counsel, and the CMCR all thought that the

PTAs are best read to include such a promise. As the closest

to the actual negotiations and trial proceedings below, their

views best reflect how the PTAs were drafted and accord with

the way military plea agreements and criminal litigation

generally is thought to work. See infra Parts III and IV. And

even if the Court disagrees on the merits, that does not render

the contrary interpretation, shared by most, unreasonable.

Nor do any undisputed facts, Majority Op. 18, establish

that the relevant language in the PTAs is unambiguous. We

must identify the intended effect of what the majority calls

undisputed conduct. Thus, “[where] interpretation turns on the

meanings that the parties actually attached and reasonably

ought to have attached to the language of their agreement, it is

indisputably a matter of fact, not of law.” FARNSWORTH § 7.17.

Stated differently, even “if the underlying facts of their

interaction are not in dispute,” the meaning of contract terms

cannot be decided as a matter of law unless “reasonable triers

of fact could only come to one conclusion based on the

evidence.” 5 CORBIN § 24.7. Here, the government’s petition

challenges the military tribunals’ construction of various

promises, including by encouraging our Court to discount those

courts’ reading of “the accompanying course of conduct” and

adopt the government’s understanding of the parties’ intent.

15

Pet. 18–19; see also Pet’r Reply 15 (“Rather than any question

of historical fact, the dispute instead concerns the meaning

of . . . the relevant agreement provisions.”). The Court’s

surface-level analysis glosses over the crux of the parties’

dispute, thereby artificially diminishing the applicable standard

of review.

b.

Next consider the Military Judge’s holding on the issue of

beginning performance. This presents a mixed question of law

and fact in which factual issues predominate, meaning that we

review the Military’s Judge’s “final” determination for clear

error. U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt.

LLC v. Vill at Lakeridge, LLC, 583 U.S. 387, 393 (2018).

Military courts take a similar approach to a materially

indistinguishable inquiry: whether the government breached

the terms of a PTA. See Lundy, 63 M.J. at 301 (noting mixed

question for determining whether the government breached a

contractual obligation although “[g]enerally courts look to all

of the facts and circumstances for this determination, and the

inquiry is generally considered a question of fact”); see also

United States v. Smead, 68 M.J. 44, 59 (C.A.A.F. 2009) (same).

The majority does not acknowledge Lundy or Smead, let alone

explain why we should not follow the jurisprudence of the

highest military court when enforcing a military rule.

What’s true for determining “breach” applies when

determining “beginning performance” under the withdrawal

regulation. Both implicate contract principles, yet require a

judge to assess and weigh the facts before him and the

credibility of any witnesses or a party’s representations, before

he can determine whether a familiar and universal standard is

met. The thrust of the Military Judge’s inquiry on that score is

predominantly factual, not legal. We review mixed questions

16

like these for clear error. See Bufkin, 145 S. Ct. at 739 n.3

(“Whether the determination is mixed or factual, clear-error

review is appropriate because it is at least predominantly

factual.”).

Here, the Military Judge considered what happened at the

pretrial proceedings in his courtroom, “categorize[d] the

evidence based on whether it support[ed] or undermine[d]

[Respondents’] claim[s],” and “compare[d] the relative

strength and persuasiveness of the evidence on each side.” Id.

at 738. He necessarily assessed the credibility of the attorneys’

representations and their courtroom behavior and demeanor,

“addressing questions of who did what, when or where, how or

why.” Vill. at Lakeridge, 583 U.S. at 394. When the Military

Judge then compared the facts against the legal definition of

beginning performance, he engaged in any inquiry “as factual

sounding as any mixed question gets.” Id. at 397. The mixed

question is thus predominantly factual and subject to

clear-error review, requiring us to afford substantial

“deference” to the Military Judge. See Bufkin, 145 S. Ct. at

738–39.

Our case law in the civilian context supports this approach.

In United States v. Pollard, we held that the determination of

“whether the government’s [actions] violated limitations in a

plea agreement . . . . presents a mixed question of law and fact

in which the factual aspects usually predominate.” 959 F.2d

1011, 1023 (D.C. Cir. 1992). So, too, in United States v. Ahn,

did we apply clear-error review to “a district court’s factual

determinations concerning a plea agreement, including its

determination of whether a breach occurred.” 231 F.3d 26, 35

(D.C. Cir. 2000) (emphasis added); see also United States v.

Gary, 291 F.3d 30, 33 (D.C. Cir. 2002) (same); FARNSWORTH

§ 8.13 (stating that determination of substantial performance is

“[p]lainly” a flexible test warranting deference); id. § 8.17

17

(noting decision on materiality of breach is a fact question that

“depend[s] on circumstances similar to those used to determine

whether a performance [was] substantial”). The purpose for

this principle is plain: “[T]he judge who hears the evidence

and observes the demeanor of witnesses has a comparative

institutional advantage over the appellate court” in ascertaining

the parties’ intent. See Pollard, 959 F.2d at 1023; see also

United States v. Jacobs, 431 F.3d 99, 116 n.15 (3d Cir. 2005)

(Aldisert, J., concurring in part and dissenting in part) (“[T]he

mere existence of relevant legal standards does not

automatically transform a question of fact, which is reviewed

for clear error, into a mixed question of law and fact, which is

reviewed de novo. . . . [A]s a matter of judicial allocation, trial

courts are far better suited to decide whether a promise arose

out of a given set of facts.”).

The majority asserts that this “is a question of law that we

review de novo.” Majority Op. 18. It seems to rest this

decision on its contention that the “relevant facts . . . are not in

question.” Id. But that observation is wrong for several

reasons. For one, it altogether ignores mixed questions of law

and fact, which are reviewed for clear error when (like here)

they are primarily factual inquiries. Bufkin, 145 S. Ct. at

738–39 & n.3; cf. Vill. at Lakeridge, 583 U.S. at 398 (“The

stock judicial method is merely to state the [legal]

requirement . . . and then to do the fact-intensive job of

exploring whether, in a particular case, it occurred.”). For

another, by painting a picture of a purely legal inquiry based on

undisputed facts, the majority obscures and ultimately ignores

the factual findings made by the Military Judge, such as his

consideration of the trial prosecutor’s characterization of the

PTAs and defense counsel’s courtroom conduct, which

supported his ruling that Respondents began performance by

refraining from litigating motions. See Pet. Ex. A at 8 & n.41.

De novo review of this issue is inconsistent with military justice

18

caselaw and our related precedent, and it ignores the Military

Judge’s considered judgment, which was based on his

encyclopedic knowledge of the proceedings below. That

judgment is worth respecting here.

B.

Aside from the deference we owe the Military Judge over

his application of R.M.C. 705(d)(4)(B), the government faces

a nearly insurmountable burden because it chose to seek relief

through a writ petition. For the government to prevail, it must

establish that its right to relief is “clear and indisputable.”

Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381 (2004)

(internal quotation marks omitted). Under our standard of

review, “[t]o meet the ‘clear and indisputable’ requirement, the

plaintiff must show that the challenged action is ‘plainly and

palpably wrong as [a] matter of law.’” Illinois v. Ferriero, 60

F.4th 704, 714 (D.C. Cir. 2023) (alteration in original) (quoting

U.S. ex rel. Chi. Great W. R.R. Co. v. ICC, 294 U.S. 50, 61

(1935)). “Accordingly, we will deny mandamus even if a

petitioner’s argument, though packing substantial force, is not

clearly mandated by statutory authority or case law.” Id.

(cleaned up). This is a “demanding hurdle.” In re Al Baluchi,

952 F.3d 363, 369 (D.C. Cir. 2020).

Our deferential review of a trial court’s factfinding for

clear error dovetails with the stringent “clear and indisputable”

mandamus standard. The government bears an extremely high

burden to show that the Military Judge “‘indisputabl[y]’ made

a ‘clearly erroneous assessment of the evidence.’” In re City

of New York, 607 F.3d 923, 944 (2d Cir. 2010) (first quoting

Cheney, 542 U.S. at 381; then quoting Sims v. Blot, 534 F.3d

117, 132 (2d Cir. 2008)); see also United States v. Carrigan,

804 F.2d 599, 604 (10th Cir. 1986) (“Had we been the triers of

fact we might well have ruled differently than did the district

19

court, but we cannot say that the court’s findings of fact are

clearly erroneous.”) (mandamus petition); In re Rearden LLC,

841 F.3d 1327, 1333 (Fed. Cir. 2016) (reviewing “the district

court’s factual findings for clear error” and applying a

“particularly deferential” review given the petition for relief

was “by way of mandamus”) (citations omitted)); In re

Huffines Retail Partners, L.P., 978 F.3d 128, 131–32 (5th Cir.

2020) (“On mandamus review,” we consider “whether the

disputed order relies on clearly erroneous factual findings,” yet

“we will only grant mandamus relief when such errors produce

a patently erroneous result.”) (internal quotation marks

omitted)); In re Hyundai Motor Am., 185 F. App’x 940, 941

(Fed. Cir. 2006) (unpublished order) (mandamus petitioner

must “clearly and indisputably show clear error in the district

court’s findings of fact”).

As I detail below, see infra Parts III & IV, the majority’s

central claims boil down to a disagreement with how the

highest court of appeals in the military justice system decided

United States v. Dean, 67 M.J. 224 (C.A.A.F. 2009), which is

factually indistinguishable from this case and (if respected)

would require denying the government’s petition. By granting

the weighty remedy of mandamus under these circumstances,

the majority substitutes its own read of contract principles

(divorced from the criminal and military justice context) for the

weight of authority from military courts, the Supreme Court,

sister circuits, and our Court.

Even if the majority is right, it at most establishes that the

Military Judge and the CMCR erred. But far more is required

to establish an entitlement to mandamus relief. Mandamus is

reserved for correcting only “serious errors.” O’Connell v.

U.S. Conf. of Cath. Bishops, 134 F.4th 1243, 1256 (D.C. Cir.

2025) (emphasis added) (quoting Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 111 (2009)). As then-Judge

20

Kavanaugh explained, we deny mandamus petitions when

“[n]either this Court nor any other court of appeals has”

answered the question presented and there is a “substantial

argument” cutting against the petitioner. In re Khadr, 823 F3.d

92, 100 (D.C. Cir. 2016); see also Republic of Venezuela v.

Phillip Morris, Inc., 287 F.3d 192, 199 (D.C. Cir. 2002)

(denying relief when petitioner “identif[ies] no precedent of

this court or of the Supreme Court even suggesting” its merits

position is correct). Put differently, “[w]hen the court acts

within its jurisdiction, the threshold showing necessary to

secure a writ of mandamus is higher than mere error, even error

that might lead to reversal on a direct appeal.” Carrigan, 804

F.2d at 604; see also In re Parish, 81 F.4th 403, 409 (5th Cir.

2023) (“[T]he writ will not issue to correct a duty that is to any

degree debatable.” (quoting United States v. Denson, 603 F.2d

1143, 1147 n.2 (5th Cir. 1979) (en banc))); United States v.

Mehrmanesh, 652 F.2d 766, 770 (9th Cir. 1981) (“Even if the

trial court made an error of law . . . [that] does not render its

decision subject to correction by mandamus, for ‘then every

interlocutory order which is wrong might be reviewed under

the All Writs Act.’” (quoting Bankers Life & Casualty Co. v.

Holland, 346 U.S. 379, 383 (1953))).

The majority offers nothing by way of precedent to show

that the government is clearly correct and the Military Judge

clearly erred. How, then, can it conclude that the Military

Judge’s decision was a “judicial usurpation of power” or a

“clear abuse of discretion”? O’Connell, 134 F.4th at 1256

(quoting Cheney, 542 U.S. at 390). The failure to show why

the government’s theory is clear and indisputable means we

must deny the petition at this threshold stage, as we routinely

do in related contexts. Cf. Pearson v. Callahan, 555 U.S. 223,

237–44 (2009) (acknowledging in the qualified-immunity

context that courts may deny claims by finding a right is not

“clearly established” without first deciding whether the right

21

exists at all); In re District of Columbia, 792 F.3d 96, 97 (D.C.

Cir. 2015) (denying petition for interlocutory review of a class

action certification order under the comparable “manifest

error” standard, even though the district court “noted that its

critical legal conclusion was not ‘free from doubt,’” because

relief was not appropriate where the ruling below “was not

squarely foreclosed by the applicable precedents”).

By applying the wrong standard of review and failing to

defer to the Military Judge’s application of the withdrawal

regulation, the majority doubly disrespects the work of two

military courts. And it undermines settled precedent from the

military justice system’s highest court of appeals. See infra

Section III.A. This effort to upend the military courts’

interpretation of a military procedural rule disturbs principles

of comity and separation of powers that inform how civilian

courts ought to act on issues particular to the military context.

The Supreme Court has repeatedly recognized “the deference

that should be accorded the judgments of the carefully designed

military justice system established by Congress.” Schlesinger

v. Councilman, 420 U.S. 738, 753 (1975). We have likewise

observed that “the decisions of the Court of Military Appeals,”

the predecessor court to the Court of Appeals for the Armed

Forces, “are almost always to be accorded ‘great deference’ by

Article III courts.” Walters v. Sec’y of Def., 725 F.2d 107, 109

n.3 (D.C. Cir. 1983) (quoting Middendorf v. Henry, 425 U.S.

25, 43 (1976)). This is especially true when “[d]ealing with

areas of law peculiar to the military branches.” Middendorf,

425 U.S. at 43; Noyd v. Bond, 395 U.S. 683, 694 (1969)

(“requir[ing] a substantial degree of civilian deference to

military tribunals” when “interpret[ing] a legal tradition which

is radically different from that which is common in civil

courts”).

22

Our deference is owed not only to military courts, but to

the political branches generally. Congress established the

military commissions and delegated to the Defense Secretary

and the Executive Branch the authority to write its own

regulations. Cf. Loving v. United States, 517 U.S. 748, 768

(1996) (observing “highest deference” owed to Congress “in

ordering military affairs,” along with “respect” and “wide

discretion and authority” owed to the “President as

Commander in Chief”). We owe the Military Judge’s

construction of this military rule, established by the President

and which has no civilian analogue, due deference. Nothing

about the majority’s decision aligns with these principles.

* * *

In sum, the majority makes three mistakes that, together,

dilute the mandamus standard beyond recognition and warp

longstanding principles of judicial review. First, it departs

from clear military justice precedents, which overwhelmingly

apply clear-error review to a trial court’s determination about

the meaning and scope of a promise in a plea agreement. The

majority does so without even responding to this body of law

or explaining why ignoring the military courts is warranted.

Second, even if the majority were correct to decide de novo

what promises are contained in the PTAs, the Court never

explains why it does the same for determining whether

Respondents began performance. This unfounded

assumption—resting primarily on civilian contract law cases—

flatly contradicts the Supreme Court’s settled approach for

predominantly factual mixed questions (reaffirmed in Bufkin),

the military courts’ analogous framework on issues of

substantial performance and material breach (as in Lundy and

Smead), and our Court’s applicable precedent in the context of

criminal plea agreements (articulated in Pollard, Gary, and

Ahn). Still, there’s more: On pure de novo review, the majority

23

refuses to acknowledge (let alone apply) the deference owed to

military courts on issues concerning the application of military

rules. We grant that deference in a typical case. But this case

is atypical in countless ways, and our deference should be at its

apex here, where the government seeks via a writ of mandamus

or prohibition to upend the application of a military rule by two

military courts that conformed with squarely applicable

precedent from the highest court of appeals in the military

justice system.

The upshot of two deferential standards of review and our

tradition of deference to military courts is that the government

must establish that the Military Judge clearly and indisputably

erred on both legal and factual conclusions. The Military

Judge’s determination that the PTAs contained promises to

enter into factual stipulations and to refrain from litigating

motions are reviewed for clear error. The same clear error

standard applies to the central question in this case—whether

Respondents began performance. The majority sidesteps

deference at every turn and treats this like a direct appeal from

an Article III court. Proper application of these standards and

our time-honored tradition of deference to military courts

shows why the government falls well short in its quest for

extraordinary relief.

III.

The government has not shown, clearly and indisputably,

that the Military Judge erred in concluding that Respondents

“beg[an] performance” of the promise to enter into factual

stipulations, which is plainly “contained in the agreement[s].”

R.M.C. 705(d)(4)(B). To the contrary, military justice

precedent, the scope of the withdrawal regulation, the text of

the agreements, and principles of contract law all support the

decision below.

24

A.

The government cannot establish a clear and indisputable

right to relief because the Military Judge and the CMCR rightly

relied on persuasive precedent with similar facts from the

highest military court of appeals in the military justice system.

In that case, United States v. Dean, the Court of Appeals for

the Armed Forces held that an accused began performance on

a PTA in part by signing a stipulation of fact before the

convening authority accepted the agreement. 67 M.J. at

227–28.

The factual scenario presented in Dean is, in all relevant

aspects, identical to this case. There, “[c]ontemporaneous with

the Offer to Plead Guilty, Dean submitted a stipulation of fact

to the convening authority which had been executed by Dean,

his defense counsel and the trial counsel.” Id. at 226. The

convening authority subsequently signed the pretrial

agreement. Id. The Court held that Dean’s execution of the

stipulation began performance within the meaning of Rule

705(d)(4)(B). Id. at 228. The Military Judge found Dean

persuasive because it interpreted and applied the parallel

courts-martial rule and involved analogous facts. Pet. Ex. A at

16–17, 26–27 & n.116.

Yet, in a footnote, the majority casts Dean aside as

“unpersuasive” with “distinguishable” facts, Majority Op. 35

n.10, even though it relies on the case’s reasoning to argue that

the stipulations of fact were entered into only once the accused

and the government both signed them, id. at 33. Specifically,

the majority contends that Dean “did not explain how its

holding was consistent with the text of the withdrawal

regulation or basic principles of contract law,” id. at 35 n.10,

25

despite Dean’s discussion of the plain text and drafting history

of the relevant rule, 67 M.J. 227–28. And while the Court

correctly notes that in Dean, “the court identified several

actions that counted as beginning performance, and one of

those actions occurred after the pretrial agreement was

finalized,” Majority Op. 35 n.10, the same is true here, see infra

Part IV (concluding that Respondents began performance of

other promises in the PTAs by engaging in conduct after both

parties signed the agreements). Whatever attempt the Court

(and the government) makes to distinguish Dean, it undermines

the reasoned judgment and settled law of the highest military

court on the interpretation of a military regulation governing

procedure for military pleas. Although it does not bind us,

Dean remains good law. Neither the Court of Appeals for the

Armed Forces nor the Supreme Court has disturbed it. The

Military Judge’s reliance on this precedent was not so inapt as

to constitute, clearly and indisputably, error.

In short, the majority has the test upside down. We have

no power to issue the writ if the right to mandamus is not clear

and indisputable, which it cannot be in absence of “bind[ing]”

precedent. See NetCoalition v. SEC, 715 F.3d 342, 354 (D.C.

Cir. 2013). And petitioners “do not come close” to showing a

clear and indisputable right where they “identify no precedent

of this court or of the Supreme Court” on point. See Republic

of Venezuela, 287 F.3d at 199. Here, the petitioner not only has

failed to identify any binding precedent supporting its

interpretation, the most apt precedent, Dean (albeit

non-binding), cuts squarely against it, and yet the majority

26

nonetheless grants the writ.4 It does so by ignoring and

departing from longstanding principles of well-earned

deference to our colleagues in the military justice system. Our

deference should be at its zenith when military courts follow

persuasive military precedent in the construction of military

rules. I am befuddled.

B.

We should decide this case by deferring to the military’s

reliance on Dean. But setting deference aside, Dean was

rightly decided. The majority’s insistence otherwise reveals a

critical flaw in its approach: By focusing exclusively on

contract principles, the majority mistakes a mandamus petition

concerning a withdrawal regulation for a direct appeal about

contract dispute.

Rule 705(d)(4)(B) provides the logical and dispositive

starting point for resolving the government’s petition. The

plain meaning of “begins performance,” as confirmed by the

military’s own construction of the term, precludes the

4

The majority’s erroneous application of a diluted mandamus

standard cannot be saved by the government’s suggestion that a

“prior opinion addressing the precise factual circumstances or

statutory provision at issue” is not required. Pet. 11 (quoting United

States v. Fokker Servs. B.V., 818 F.3d 733, 749–50 (D.C. Cir. 2016))

(emphasis added). But the reason our Court was persuaded to grant

a writ in Fokker Services is because the district court’s error was so

idiosyncratic that no trial court had ever made such a ruling before,

so there was no opportunity to develop any appellate precedent. 818

F.3d at 750. The opposite is true here, where, on one hand, the Court

locates no precedent applying the exact contract principle it advances

today, and, on the other, the highest military justice court addressed

the precise factual circumstances at issue and rejected the majority’s

logic.

27

government from establishing a clear and indisputable right to

relief based on the stipulations.

As the majority notes, “performance” connotes

“successful completion of a contractual duty.” Majority Op.

33 (quoting Performance, BLACK’S LAW DICTIONARY (12th ed.

2024)); see also Performance, MERRIAM-WEBSTER,

https://www.merriam-webster.com/dictionary/performance

[https://perma.cc/8DSZ-MASV] (last updated June 20, 2025)

(defined as “what is required to be performed in fulfillment of

a contract, promise, or obligation,” or “the fulfillment of a

contract, promise, or obligation”). The Court pairs this with its

own definition of “begins” as when someone “starts to

complete.” Majority Op. 33. That definition, however,

prompts more questions than it answers. What types of actions

could one take to “start to” complete a contractual duty?

Fortunately, we do not write on a blank slate. Military

courts and the Executive Branch have, over decades, issued

guidance on how to interpret their own rules. That guidance

illustrates how broadly “begins performance” was designed to

sweep. In 1984, President Reagan issued a revised Manual for

Courts-Martial (“MCM”), which included an updated Rules for

Courts-Martial that introduced the “begins performance”

threshold for when a convening authority can withdraw from a

PTA. Manual for Courts-Martial, United States, 1984, 49 Fed.

Reg. 17152, 17187–88 (Apr. 13, 1984); see also 10 U.S.C.

§ 836(a) (1982) (granting the President power to prescribe

rules for pretrial procedure in courts-martial and military

commissions). And the 1984 MCM included analysis from the

Joint Service Committee on Military Justice (as required by the

Department of Defense) on what “begins performance” means.

See Review of the Manual for Courts-Martial, 50 Fed. Reg.

6166, 6167 (Feb. 14, 1985) (to be codified at 32 C.F.R. pt. 152);

About the JSC, JOINT SERV. COMM. ON MILITARY JUST.,

28

https://jsc.defense.gov/ [https://perma.cc/3HQVAM6J] (last

visited Feb. 5, 2025); 1984 MCM, App. 21, at A21-36. The

analysis has been reissued in nearly every MCM since,

including the version published a year before the Executive

Branch incorporated the corollary Rule for Courts-Martial into

R.M.C. 705(d)(4)(B), which we interpret today. See MANUAL

FOR COURTS-MARTIAL UNITED STATES, App. 21, at A21-40 to

A21-41 (2008) [hereinafter 2008 MCM].

This uncontested Executive Branch analysis insists that

“begin[s] performance” encompasses “actions pursuant to the

terms of an agreement.” Id. at A21-41 (emphasis added). At

the time “begins performance” was adopted by President

Reagan’s Department of Defense in the Rules for Courts-

Martial, “[p]ursuant to” included “in the course of carrying

out” or “in conformance to or agreement with.” Pursuant,

BLACK’S LAW DICTIONARY (5th ed. 1979). That understanding

remained the same when the Department incorporated the

identical provision into the Rules for Military Commissions.

See [P]ursuant to, BLACK’S LAW DICTIONARY (9th ed. 2009)

(“In compliance with; in accordance with; under;” or “[a]s

authorized by; under;” or “[i]n carrying out.”).

Respondents unquestionably satisfied the military’s own

construction of its withdrawal regulation. For one, the “terms”

of the PTAs plainly include a promise to enter into stipulations;

the text of each includes each Respondent’s “agree[ment]”

(i.e., promise) “to enter into the Stipulation of Fact included as

Attachment A.” E.g., Al Hawsawi PTA ¶ 6. Indeed, the

military’s own handbook for military justice practitioners (who

practice under the comparable courts-martial rules) notes that

a “basic component[]” of a military plea agreement is “[a]

promise by the accused . . . to enter a confessional stipulation.”

J.A. 205–06 (emphasis added).

29

The only question, then, is whether by signing stipulations

between 24 to 48 hours before the Convening Authority signed

the PTAs, Respondents were acting “pursuant to” the fully

negotiated agreements. See 2008 MCM at A21-41. On that

score, the military’s own analysis of what constitutes “the

beginning of performance” answers the question dispositively

in Respondents’ favor. Indeed, the 1984 guidance expressly

states that “providing information to Government agents” is

one type of action pursuant to a PTA that constitutes the

“beginning of performance.” 1984 MCM at A21-36.

Aside from its analysis on the construction of “begin[ning]

performance,” the Executive Branch has expressed elsewhere

its position that, pursuant the terms of a PTA, stipulations of

fact may be executed at the time the agreement is formed. The

Department of Defense’s regulations for military commission

trials—which provide guidance based on “the unique

circumstances of the conduct of military and intelligence

operations during hostilities”—allow “the Convening

Authority [to] require the accused and counsel to enter into

stipulations of fact or testimony as part of the PTA.” DEP’T OF

DEF., REGULATION FOR TRIAL BY MILITARY COMMISSION, at 1,

ch. 12-4 (2011),

https://www.mc.mil/Portals/0/2011%20Regulation.pdf

[https://perma.cc/CN3T-Z3HG][hereinafter 2011

REGULATION FOR TRIAL BY MILITARY COMMISSION] (emphasis

added). The regulation thus frames entry into the stipulations

as “part of” the agreements themselves—not, as the majority

counters, “part of the offer,” see Majority Op. 34, or as a

condition on forming the binding contract. The military’s

consistent view on when performance of a promise to enter into

stipulations of fact can occur also appears in the military

practitioners’ handbook. When the courts-martial rule still

prohibited a convening authority’s withdrawal after an accused

began performing, the handbook observed that “[p]erformance

30

w[ould] often take the form of entry into a stipulation of fact.”

J.A. 208. The handbook also rightly acknowledged that

“[c]ourts have strictly construed this rule,” id. (citing Dean, 67

M.J. 224), which is just what the Military Judge and the CMCR

did here.

The Court today acknowledges none of this. Nowhere

does it suggest that signing the stipulations was not “pursuant

to” or “in conformance with” the plain text of the PTAs,

according to which the accused agreed to enter into stipulations

of fact. This action marked the beginning of performance

under the promises that Respondents made. Nor does the

majority contend with the military’s clear understanding of

what “begins performance” means under Rule 705, or the way

that military judges and practitioners view stipulations utilized

in PTAs. Instead, it confines its understanding of what might

“begin” performance to a single dictionary definition, which it

insists conforms to contract principles. Majority Op. 33. Yet

the Court today fails to explain its assumption that the

Executive Branch drafted Rule 705(d)(4)(B) to strictly follow

the narrowest possible reading of contract principles, even

when the historical record suggests otherwise. Indeed, the

Executive Branch intended the rule to cover conduct beyond

merely “start[ing] to complete” a contractual promise, id., and

instead include any “actions pursuant to” the agreement. 2008

MCM at A21-41; cf. United States v. Koopman, 20 M.J. 106,

110 n.3 (1985) (“Whether performance of a preexisting duty

constitutes consideration for a contract is a subject over which

legal scholars may dispute, but for purposes of the

enforceability of a pretrial agreement in a criminal case, we do

not consider such technicalities to be material.”). By narrowly

(and mistakenly) interpreting “begins performance,” the

majority dilutes the government’s burden and refuses to give

Dean the treatment it deserves. Under the governing regulation

31

and rightly decided military precedent, the government has not

established its clear and indisputable right to relief.

C.

Even on the majority’s framing of the case, the

government has not met its burden. The plain text of the PTAs,

read against the backdrop of basic contract law principles,

demonstrates that the agreements contained a promise to enter

into factual stipulations, and that Respondents began

performance of those promises when they so entered by signing

them. Here, I explain why the majority is wrong to conclude

that the PTAs lacked such promises, before turning, see infra

Part III.D, to the majority’s incorrect assessment of when

Respondents’ performance began.

As to Respondents’ promises to enter into factual

stipulations, the Military Judge did not, clearly and

indisputably, commit clear error. Moreover, the Court fails

entirely to grapple with the parties’ course of dealing, which

contravenes its read of the text, and with the Rules for Military

Commissions, which contemplate that an accused may promise

to enter into stipulations like those at issue here.

1.

There are three reasons why the plain text of the PTAs

supports the Military Judge’s decision below and forecloses

any claim that the government clears the formidable mandamus

standard.

First, the PTAs use promissory language to describe the

requirement that Respondents enter into factual stipulations.

“A promise is an expression of commitment to act in a specified

way, or to bring about a specified result in the future, or to take

32

responsibility that the result has occurred or will occur,

communicated [so] that the [recipient] may justly expect

performance and may reasonably rely thereon.” 1 CORBIN

§ 1:13.5 Or, as Williston provides, “[a] ‘promise’ is a

manifestation of intent[] to act or refrain from acting in a

specified way, so made as to justify a promisee in

understanding that a commitment has been made.” 1

WILLISTON § 1:2; see also RESTATEMENT § 2 cmt. a (defining

“promise” as that “which results from the promisor’s words or

acts of assurance, including the justified expectations of the

promisee and [the] . . . legal duty which arises to make good

the assurance by performance”).

Here, the stipulation provisions plainly were a “promise.”

“The terms of a promise or agreement are those expressed in

the language of the parties . . . .” RESTATEMENT § 5 cmt. a.

When each of the accused signed his PTA, he manifested his

assent to the promises made in the PTA, including his intent to

enter into stipulations. Respondents used promissory language

reflecting their commitment (“agreement”) to do something

(“enter into the Stipulation[s] of Fact”). Mohammed PTA ¶ 6;

bin ‘Atash PTA ¶ 6 (same); Al Hawsawi PTA ¶ 6 (same). That

is, the accused took responsibility for something that had

happened or would happen. From that assurance, the

Convening Authority was justified in believing that a

commitment had been made.6

5

A full recounting of Corbin’s definition illustrates why the

government’s reliance on our prior decision in Choate v. TRW, Inc.,

14 F.3d 74 (D.C. Cir. 1994), is misplaced. See Pet. 17. Choate cites

an outdated (1963) version of Corbin’s treatise. The current edition

altered the definition of “promise” to better account for how parties

negotiate and form agreements.

6

This construction mirrors other promises in the agreement.

Compare Mohammed PTA ¶ 6 (“[A]grees to enter into this

33

Facing the PTAs’ unmistakably clear text, the majority’s

only response is that promises must be forward looking. See

Majority Op. 32–33; see also Pet’r Reply 7–9. But that

assertion gets the Court no closer to its conclusion. Corbin’s

acknowledgment that a promise can be “an expression of

commitment . . . to take responsibility that the result has

occurred or will occur,” 1 CORBIN § 1.13 (emphasis added),

squarely undermines the majority’s point. In any event, the

stipulation provision in the PTAs satisfies the majority’s

forward-looking requirement. Each PTA characterizes the

promise as something Respondents will perform in the future.

And the record confirms that when Respondents signed the

PTAs, they had yet to sign the attached stipulations.7

Temporally then, Respondents made a forward-looking

commitment in their PTAs to enter into stipulations. By the

time the Convening Authority countersigned, she knew that the

accused “commit[ted] . . . to take responsibility” that entry into

Stipulation of Fact.”), with id. ¶ 5 (“[A]grees to waive his rights and

offers to plead guilty to all charges and specifications.”). There is no

principled textual distinction between the term requiring entry into

factual stipulations, e.g., id. ¶ 6, and any other term that is

indisputably a promise. Although the majority’s view of the PTAs

requires such a distinction, it offers none.

7

Mohammed and bin ‘Atash signed their PTAs the same day that

they signed the corresponding stipulations of fact, and the record

suggests Al Hawsawi did the same. See Mohammed PTA at 19;

Mohammed Stipulation of Fact at 28 (Sealed); bin ‘Atash PTA at 18;

bin ‘Atash Stipulation of Fact at 24 (Sealed); see also Pet. Ex. A at

6–7 (describing timeline of Al Hawsawi’s signing). Al Hawsawi

Stipulation of Fact at 30 (Sealed). The stipulations were included

only as attachments to the PTAs. And the record reflects that bin

‘Atash first signed the PTA and “next signed the Stipulation of Fact

at Attachment A to the PTA.” Pet’r 28(j) Letter filed Feb. 5, 2025,

Attach. 6, at 6–7 (footnote omitted). No evidence here suggests that

Mohammed or Al Hawsawi departed from the custom of first signing

a document before signing its attachments.

34

stipulations “ha[d] occurred.” Id. So far as I can tell, the

majority makes no textual argument that the agreements to

“enter into” stipulations were anything other than forward

looking.

Second, reading the stipulation provision as a

forward-looking promise conforms with the doctrine of

contract formation, which “requires a bargain . . . [with] a

manifestation of mutual assent to the exchange and a

consideration.” See RESTATEMENT § 17. Start with mutual

assent, or the “willingness to make a bargain.” Id. § 23 cmt. a.

For the promise to be valid, the promisor must only assent to

perform it, as “[n]either real nor apparent intention that a

promise be legally binding is essential to the formation of a

contract.” Id. § 21.

Accordingly, Respondents’ manifestation of assent

occurred even though the Convening Authority had not yet

signed the PTA. As explained by the Restatement, “two parties

may sign separate duplicates of the same agreement, each

manifesting assent whether the other signs before or after him.”

Id. § 22 cmt. a (emphasis added). Respondents manifested

their assent to the promise to enter into factual stipulations by

words and conduct: First they agreed to PTA language

containing promissory language, and then they signed actual

stipulations of fact. This manifestation of assent and order of

operations confirms that the stipulation provisions were

promises. See id. § 19 (“The manifestation of assent may be

made wholly or partly by written or spoken words or by other

acts or by failure to act.”).

The majority holds that a promise made in a contract is not

really a promise until it becomes legally binding, which cannot

be squared with the Restatement’s admonition that the

promisor need not even “inten[d] that [the] promise be legally

35

binding” in the first place. See id. § 21. Nor does the

majority’s view align with the Restatement’s distinction

between promises and binding agreements. See id. § 2 cmt a.

(“[T]he word ‘promise’ is not limited to acts having legal

effect.”); see also 1 WILLISTON § 1:2 (distinguishing between

promises without legally binding effect and those that become

binding). The majority’s rule also contradicts the

Restatement’s declaration that “[m]anifestation of mutual

assent to an exchange requires that each party either make a

promise or begin or render a performance.” RESTATEMENT

§ 18. The Restatement does not say that only the promisee can

manifest assent by “begin[ning] or render[ing] a performance”

of a promise in the contract. See id. Either (“each”) party can

do so. Id. Thus, the majority’s contention—that a promise

articulated in a contract is not a promise merely because it was

performed before the contract becomes legally binding—has

no purchase in contract law. To find that the Military Judge

was clearly and indisputably wrong to conclude that this text

was a promise, the majority contradicts a plethora of the

foregoing blackletter contract principles.

Third, the plain text of the PTAs provide that “failure to

enter into” the stipulations constitutes “breach of a material

term.” E.g., Mohammed PTA ¶ 6. The very definition of a

contract is “a promise . . . for the breach of which the law gives

a remedy.” RESTATEMENT § 1. Put differently, breach is the

failure to perform a promise. Because the PTAs expressly

define the failure to enter into stipulations as breach, we have

further assurance that Respondents’ agreements to enter into

stipulations were mutually intended to be promises.

2.

The Court’s arguments to the contrary are unavailing.

Rather than a “promise,” the majority says, maybe the signed

36

stipulations were “part of the offer,” Majority Op. 34, or

“consideration Respondents offered,” id. at 37; see also Pet. 16

(“[S]igning the factual stipulations was part of the process

through which the agreements were formed . . . .”). The

majority’s contortion of the text is a square-peg-round-hole

approach that is undermined by contract law. An offer is, “[i]n

the normal case[,] . . . an offer of an exchange of promises.”

RESTATEMENT § 24 cmt. a. “Simple examples are: ‘I promise

to deliver these apples if you promise to pay me $100’. . . .”

FARNSWORTH § 3.13. So even if the stipulations were “part of

the offer,” Majority Op. 34, that does not help the majority in

categorizing them as something other than promises (i.e., “I

promise to sign this stipulation if you promise to not seek the

death penalty.”).

The majority’s contention that the stipulations constituted

“consideration Respondents offered” fares no better. Id. at 37.

If anything, viewing the stipulation provisions as consideration

further establishes that they are promises “contained in the

agreement[s].” R.M.C. 705(d)(4)(B). “Consideration” is an

“element of exchange” that makes a promise legally

enforceable. RESTATEMENT § 71 cmt. a. “[T]he consideration

induces the making of the promise and the promise induces the

furnishing of the cons

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