In re: United States of America, Petitioner

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 S TATES OF AMERICA,
P ETITIONER
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.

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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: M ILLETT, W ILKINS and R AO , Circuit Judges.
Opinion for the Court by Circuit Judges M ILLETT and
R AO .
Opinion concurring in part and dissenting in part filed by
Circuit Judge WILKINS .
M ILLETT and R AO , 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

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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.

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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

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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,

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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

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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

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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

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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

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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

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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).

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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

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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

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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.”).

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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

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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.

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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);
R ESTATEMENT (S ECOND ) OF C ONTRACTS § 212(2) (A M. L.
INST. 1981); 11 R ICHARD A. LORD , WILLISTON ON C ONTRACTS
§ 30:1 (4th ed. 2024); 5 TIMOTHY M URRAY , C ORBIN ON
C ONTRACTS § 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

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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

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§ 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, F ARNSWORTH ON C ONTRACTS §§ 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 C ORBIN § 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 C ORBIN
§ 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.

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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

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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).

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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.

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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.

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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

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25
action that ends any further proceedings on the proponent’s
motion. See Move, B LACK’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

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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).

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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

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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.

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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 W ILLIAM H. PAGE, THE LAW OF C ONTRACTS § 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 R ESTATEMENT (S ECOND)
OF C ONTRACTS § 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

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30
affirmative action and not merely a failure to object.”); Waiver,
B LACK’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, B LACK’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

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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).

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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.” R ESTATEMENT (S ECOND) OF
C ONTRACTS § 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 R ESTATEMENT (S ECOND)
OF C ONTRACTS § 55 cmt. b (explaining the definition of
“promise” requires an “element of futurity”); 1 F ARNSWORTH
§ 1.01 (“[Contract law] is … concerned with exchanges that
relate to the future because a ‘promise’ is a commitment as to
future behavior.”).

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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, B LACK’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. S HORTER
OXFORD ENGLISH D ICTIONARY 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

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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

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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.

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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

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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); R ESTATEMENT (S ECOND ) OF C ONTRACTS § 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 -M ARTIAL PROCEDURE
§ 12-25-11 (5th ed. 2020) (explaining that a stipulation of fact is used
to assess a guilty plea and at sentencing).

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made.12 See R ESTATEMENT (S ECOND) OF C ONTRACTS § 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 W ILLISTON
§ 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 W ILLISTON § 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.

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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

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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.

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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

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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.

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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

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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.

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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

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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/-

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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.

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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

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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

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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

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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.

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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

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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.”).

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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.

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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.

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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.

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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

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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

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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

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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

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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

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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

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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”).

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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

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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.

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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,

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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

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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.

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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.,

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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).

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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

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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

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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

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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

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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.

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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

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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

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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 consideration.” Id. cmt. b. Here, the
stipulation provision was unquestionably the product of a
“bargained-for exchange.” 3 WILLISTON § 7:2.
Respondents and the government negotiated for years over
the contents of the PTAs. Supra Part I. The factual stipulations
were, as all are in a criminal case, “bargaining chips in the
hands of [the accused].” United States v. Granik, 386 F.3d 404,
412 (2d Cir. 2004); United States v. Rasberry, 21 M.J. 656, 657
(A.C.M.R. 1985) (“An accused may be required as part of his
bargain to include in the stipulation, for sentencing purposes,
aggravating circumstances relating to the offenses to which he

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has pled guilty.”). Respondents admitted to planning and
implementing the 9/11 terrorist attack in exchange for
eliminating the death penalty as a possible sentence. And for
the government, obtaining confessions from the accused was a
top priority, so much so that the prosecution willingly agreed
to forebear seeking capital punishment if it received the
stipulations and guilty pleas. As the Restatement puts it,
Respondents’ agreements to enter into stipulations were
“sought by the [government] in exchange for [the
government’s return] promise” to not seek the death penalty,
and the agreements were “given by [Respondents] in exchange
for that promise.” RESTATEMENT § 71(2).
We also know that the commitment to sign stipulations
was part of valuable consideration because Respondents
promised something of value in excess of what they already
were legally bound to do. See WILLIAM R. ANSON, PRINCIPLES
OF THE LAW OF CONTRACT WITH A CHAPTER ON THE LAW OF
AGENCY 126–27 (4th ed. 1924, Arthur L. Corbin ed.).
“Consideration thus [e]nsures that the promise enforced as a
contract is not accidental, casual, or gratuitous, but has been
uttered intentionally as the result of some deliberation,
manifested by reciprocal bargaining or negotiation.” 3
WILLISTON § 7:2 n.10 (quoting Baehr v. Penn-O-Tex Oil Corp.,
104 N.W.2d 661, 665 (Minn. 1960)). Nothing about
Respondents’ agreements to enter into stipulations was
accidental, casual, or gratuitous.8
8 At argument, the government urged that the stipulation provisions
are conditions precedent, not promises. This is wrong. “A condition
precedent is either an act of a party that must be performed or a
certain event that must happen before a contractual right accrues or
a contractual duty arises.” 13 WILLISTON § 38:7. The text of the
PTAs and contract law render the stipulation provisions promises,
not conditions. Compare 8 CORBIN § 30.12 (whereas

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Perhaps recognizing the weakness in these arguments, the
majority effectively concedes that the agreement to enter into
stipulations was a promise as contract law defines the term.
Majority Op. 36 (describing each stipulation provision
“forward looking”). To account for that reality, the Court
insists that the future-oriented nature of the PTAs’ promises to
enter into stipulations must refer to something else entirely. In
the majority’s telling, when Respondents agreed “to enter into
[the] Stipulation of Fact” attached to each PTA, e.g.,
Mohammed PTA ¶ 6 (emphasis added), the forward-looking
valence of those promises applied only to their commitments
to “formally enter the stipulations of fact into evidence at their
“non-fulfillment of a promise” is a “breach,” “non-occurrence of a
condition” simply “prevent[s] the existence of a duty in the other
party”), with Mohammed PTA ¶ 6 (failure to enter into PTA is a
breach). Nothing in the PTAs states or suggests that Respondents
must sign the stipulations before the Convening Authority will
countersign the PTAs, as would be typical of a condition. That’s true
even though the stipulations use the word “condition.” See
Mohammed Stipulation of Fact (Sealed) at 1. The term “condition”
does not appear in the PTAs. Rule 705(d)(4)(B) calls on us to locate
“promises contained in the [PTAs],” not the characterization of those
promises in collateral documents. R.M.C. 705(d)(4)(B). Moreover,
the word “condition” is not dispositive. Howard v. Fed. Crop Ins.
Corp., 540 F.2d 695, 697–98 (4th Cir. 1976) (holding that use of
“condition” to describe an obligation referred to a promise, not a
condition precedent). Ultimately, “[s]tipulations should be so
construed as to give effect to the intention of the parties.” United
States v. Beninate, 15 C.M.R. 98, 100 (C.M.A. 1954). Any
uncertainty whether a contract creates a condition or a promise is
resolved by reading the provision as a promise. 13 WILLISTON
§ 38:13; see also RESTATEMENT § 227 cmt. d; 1-7 MURRAY ON
CONTRACTS § 103[C] (5th ed. 2011). Here, the parties
unambiguously negotiated the stipulation provision as a promise for
Respondents to perform.

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plea hearings before the military judge,” Majority Op. 36.
Notably, the government does not advance such an argument.
This argument is wrong on multiple fronts. For one, while
one legal definition of “enter” is, as the majority notes, “[t]o
put formally before a court or on the record,” Enter, BLACK’S
LAW DICTIONARY (12th ed. 2024), the very next definition is
“[t]o become a party to,” as in “they entered into an
agreement,” id. The majority points to nothing in the PTAs to
justify relying on one Black’s definition and neglecting the
other. It cites only paragraph 46 of Mohammed’s PTA, which
corresponds to paragraphs 43 and 44 of bin ‘Atash’s and Al
Hawsawi’s, respectively, to say that “other provisions in the
[PTAs]” confirm “entry into stipulations” is something that
happens before the military judge. Majority Op. 36. That
cross-reference does little for the majority’s reasoning because
the cited paragraph includes events that would not occur before
the military judge, like the setting aside of the plea on appeal,
e.g., Mohammed PTA ¶ 46g, or the accused’s failure to file an
appellate waiver, id. ¶ 46i. Further, the cited paragraph
includes a catch-all provision allowing the Convening
Authority to withdraw if the accused “fails to satisfy any
material term of the [PTA],” id. ¶ 46d, which sweeps broader
than promises related to events occurring before the Military
Judge, such as promises not to file civil claims against the
United States, id. ¶ 26, not to seek financial benefits from
having committed these offenses, id. ¶ 28, and not to support
hostile acts against the United States, id. ¶ 30.
Instead, the stipulations themselves provide that they are
“knowingly and voluntarily entered into by the Prosecution and
[each Accused],” reflecting the parties’ understanding that
entry was complete once both parties signed, and the
stipulation became binding once the Convening Authority
countersigned the PTAs. See Mohammed Stipulation of Fact

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40
(Sealed) at 1 (emphasis added); Mohammed PTA ¶ 62. This is
also consistent with common usage of the phrase “enter into” a
stipulation of fact. See Stipulation, BLACK’S LAW DICTIONARY
(12th ed. 2024) (“A voluntary agreement between opposing
parties concerning some relevant point . . . <the plaintiff and
defendant entered into a stipulation on the issue of
liability> . . . .”). Indeed, we have observed that entry into a
factual stipulation is a distinct event from the subsequent
introduction of that stipulation (i.e., entering it into evidence)
at a proceeding. See, e.g., United States v. Harrison, 204 F.3d
236, 242 (D.C. Cir. 2000); cf. Andrews v. Wall, 44 U.S. 568,
571 (1845) (noting that where salvage vessels “enter[ed] into
stipulations with each other,” it was a separate question as to
whether the Court had jurisdiction to enforce those
stipulations).9
Worse for the majority is that the Rules for Military
Commissions adopt the opposite framing than what the
majority advances. The Rules do not refer to the formal
submission of stipulations to the Military Judge as “entering,”
but rather use the terms offer and acceptance. R.M.C. 811(d),
(f). Whereas the Rules permit the convening authority’s
withdrawal from a PTA “before a stipulation is accepted” by
the military judge, R.M.C. 811(d) (emphasis added), they
characterize an agreed-upon but not-yet-accepted stipulation as
9 This interpretation aligns with the parties’ characterization of entry.
For instance, the prosecution, when discussing an earlier stipulation
from Mohammed on an unrelated issue, stated that if conditions were
met it would “enter into [Mohammed’s] proposed stipulation.” Pet’r
Resp. to Order of Apr. 14, 2025 (Sealed), Attach. 4, at App. 486 (Apr.
15, 2025), Dkt. No. 2111203. As did Respondents. See, e.g., Pet’r
Resp. to Order of Apr. 14, 2025 (Sealed), Attach. 9, at App. 46 (Apr.
15, 2025), Dkt. No. 2111203 (describing promise as executing a
stipulation “agreed to and signed by the government’s
representative”).

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one “entered pursuant to a pretrial agreement,” R.M.C.
705(d)(4)(A) (emphasis added). This same view is expressed
(again) in the regulations for military commission trials. There,
the Department of Defense details the convening authority’s
power to “require the accused . . . to enter into
stipulations . . . as a part of the PTA,” 2011 REGULATION FOR
TRIAL BY MILITARY COMMISSION, at 47, not at the time the
stipulation is accepted by the military judge or admitted into
evidence.
Although the majority declines to engage with it, Majority
Op. 34–36 & n.10, this distinction makes clear that entering
into a stipulation is different than offering it to the tribunal for
acceptance. In fact, paragraph 46 of Mohammed’s and Al
Hawsawi’s PTAs (and paragraph 43 of bin ‘Atash’s)—the very
provision the majority uses to anchor its definition of “enter
into”—uses the same offer/acceptance framework to describe
what happens before the Military Judge. See Mohammed PTA
¶ 46h (noting convening authority can withdraw from PTA
upon “[f]ailure or refusal of the Military Judge to accept the
agreed upon Stipulation of Fact”) (emphasis added)); Al
Hawsawi PTA ¶ 44h (same); bin ‘Atash PTA ¶ 43h (same).
The “agree[ment] to enter into” stipulations thus does not
concern the proffer of the stipulations to, or the acceptance of
the stipulations by, the Military Judge. The majority’s
suggestion otherwise is unmoored from the text of the
agreements, the parties’ statements, military rules, and contract
doctrine.
At bottom, the PTAs plainly contain a promise to enter into
stipulations of fact. None of the majority’s arguments against
that natural reading—that the signed stipulations were part of
the offer, the consideration for the agreement, or a promise to
offer stipulations to the military commission—clearly and
indisputably establish that the Military Judge’s construction of

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the PTAs as encompassing a promise to enter into factual
stipulations was clear error. Cf. Pet. Ex. A at 7. The same is
true under de novo review that the majority believes is
appropriate.
3.
Two final points, left unaddressed by the majority, further
undermine its holding.
First, the majority’s atextual understanding of the PTAs at
most suggests that the documents are ambiguous. Against the
plain language of the agreement, several areas of contract law,
and the work of two military courts, the Court stands alone in
concluding that “entering into” a stipulation means entering it
into evidence, rather than simply signing it (agreeing to it).
This alone makes clear that even if the majority’s read is right,
the agreements involve some degree of ambiguity. See supra
Section II.A.2.a.
And if the PTAs are ambiguous, we look to the parties’
course of dealing, which confirms that the Military Judge
correctly read the agreements. RESTATEMENT § 223(1) (“A
course of dealing is a sequence of previous conduct between
the parties to an agreement which is fairly to be regarded as
establishing a common basis of understanding for interpreting
their expressions and other conduct.”). The facts of this case
are sui generis: Intense negotiations over three years led to the
government principally drafting the PTAs and stipulations of
fact, after which Respondents formally “offered” the PTAs to
comply with military commission rules. Supra Part I. The
stipulations, per the PTAs themselves, played a crucial role in
the prosecution. They established Respondents’ guilt,
provided a factual basis for the sentencing, and were necessary
for the Military Judge to ultimately accept any future guilty

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pleas as supported by an adequate factual record. As the
government’s trial counsel conceded, the agreements to enter
into the stipulations were one of “the two most important
aspects of the Prosecution’s willingness to endorse any pre-trial
agreements in [the] case.” J.A. 198. And he required that
Respondents inform the government “by July 28 if any of the
Accused [were] willing to enter into a PTA that include[d]” the
stipulations. J.A. 199.
“[C]ontracts should be liberally construed so as to give
them effect and carry out the intention of the parties.” 11
WILLISTON § 30:9. The prosecutor never suggested or implied
that the agreement to enter into stipulations was anything but a
“manifestation of [Respondents’] intention to act . . . in a
specified way, so made as to justify [the government] in
understanding that a commitment has been made.”
RESTATEMENT § 2(1) (defining “promise”). Indeed, the parties
bargained so intensely over the substance of the confessions
that the government refused to accept the PTAs unless the
agreement “to enter into” satisfactory stipulations was
contained in the PTAs. See J.A. 198–99.
Because the Court erroneously concludes that the text of
the PTAs unambiguously supports the government, e.g.,
Majority Op. 3, it fails to acknowledge this evidence of the
parties’ intent, as expressed by their course of dealing. See id.
at 19–22 (citing authority that when a contract is unambiguous,
its terms “must be enforced irrespective of the parties’
subjective intent”). It is further telling that the majority makes
no attempt to argue that, even assuming the agreements are
ambiguous, the parties’ course of dealing can be reconciled
with its preferred interpretation. That is because the parties’
negotiations flatly contradict the Court’s construction of the
PTAs. We can resolve this case on the plain text of the PTAs
and principles of contract law, which together require denying

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the government’s petition. But to the extent ambiguity exists,
we must look outside the four corners of the agreements, and
the parties’ course of dealing clarifies that the Military Judge
did not clearly and indisputably commit clear error.
Second, the majority ignores the plain text of a
neighboring provision in the Rules for Military Commissions,
which confirms that the stipulation provisions are contractual
promises. Rule 705(c)(2)(A) enumerates as a “[p]ermissible
term[] or condition[]” in a PTA that an accused may “promise
to enter into a stipulation of fact.” As such, military courts
“have long sanctioned pretrial agreements which compel an
accused to stipulate with the trial counsel to the factual basis of
the offenses to which he pleads guilty.” United States v.
Sharper, 17 M.J. 803, 806 (A.C.M.R. 1984); see, e.g., United
States v. Felder, 59 M.J. 444, 445 (C.A.A.F. 2004) (“In his
pretrial agreement, Appellant promised to enter into a
stipulation of fact,” and “made these promises in exchange for
a limitation on the sentence.”). By turning a blind eye to the
relevant rules at stake, the majority misses yet another
indication that Respondents’ agreements to enter into
stipulations are promises.
* * *
For all these reasons, the Military Judge rightly found that
the PTAs contain a promise to enter into stipulations of fact.
There is no basis for concluding that he clearly and
indisputably committed clear error, as is required for the
government to prevail on this claim. The majority disagrees
with the Military Judge’s construction of the contracts, but
nowhere explains why its disagreement is so substantial that it
empowers the Court to hold that the government has shown a
“clear and indisputable” right to relief. This is especially true
as to arguments advanced for the first time by the majority.

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Mandamus does not grant the Court license to inject its own
arguments in support of the government’s position. We review
whether a petitioner has shown a clear and indisputable
entitlement to relief, not whether the majority can satisfy the
mandamus standard based on arguments that have not been
presented.
As to the arguments actually put forward by the
government, the majority fails to explain why, even if those
arguments “pack[] substantial force,” a writ is “clearly
mandated by statutory authority or case law.” Ferriero, 60
F.4th at 714 (emphasis added) (internal quotation marks
omitted). While the majority states that “[t]his is a rare case in
which that exacting standard has been met,” Majority Op. 11,
it never articulates why, assuming the government can
demonstrate some entitlement to relief, mandamus is clearly
and indisputably required.
Today’s decision calls into question the wisdom of the
Military Judge, despite his courtside view of the proceedings
below and his expertise in interpreting military PTAs. As the
PTAs’ text and contract principles demonstrate, we are wrong
to second-guess the Military Judge’s factual findings, which
the CMCR affirmed. The government has not clearly and
indisputably shown that it is entitled to relief on this claim
under any standard.
D.
Turning from the “promise” requirement to “begins
performance,” the government fails to show, clearly and
indisputably, that the Military Judge erroneously applied Rule
705(d)(4)(B) by holding that Respondents began performance
of the established promise to enter into factual stipulations.
Recall that the Rule prohibits the convening authority from

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withdrawing from a pretrial agreement once the accused
“begins performance of promises contained in the agreement.”
R.M.C. 705(d)(4)(B) (emphasis added). Because bedrock
contract doctrines confirm Dean, see supra Section III.A, and
conform with the best reading of Rule 705(d)(4)(B), see supra
Section III.B, Respondents began performance by signing the
stipulations even under the majority’s myopic and acontextual
view of the case. The government thus cannot carry its burden.
To start, the majority’s contract-law approach to
“begin[ning] performance” breaks new ground by imposing a
freestanding and unsupported temporal limitation on when an
accused may start performing on a promise under Rule
705(d)(4)(B). See Majority Op. 33–36. Recall that this is a
case about the withdrawal regulation, not a contract dispute. At
its outset, when drafted by the military for the courts-martial
rules, Rule 705(d)(4)(B)’s predecessor was intended to be more
favorable to the accused than what a narrow view of contract
law might allow. The military’s analysis noted that the “begins
performance” standard was “consistent” with earlier military
precedent that pegged the convening authority’s withdrawal
power to an accused’s detrimental reliance. 1984 MCM at
A21-36.10 By citing with approval, id., the highest military
court’s decision in Shepardson v. Roberts, the Executive
Branch intended the “beginning of performance” in the
withdrawal regulation to encompass the principles of “fairness
and due process,” recognized in Shepardson, that were “apart
from contract law” and “compel[led] the Government to abide
by a [PTA] on which an accused has reasonably relied to his
detriment,” 14 M.J. 354, 358 (C.M.A 1983) (emphasis added).
Incorporation of the “beginning of performance” standard,
10 Detrimental reliance, or promissory estoppel, concerns the
enforcement of promises lacking consideration, a necessary element
for contract formation. See RESTATEMENT § 90.

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while “consistent” with Shepardson’s approach, simply
“provide[d] a clearer point at which the right of the convening
authority to withdraw terminates.” 1984 MCM at A21-36. In
its effort to make this case a contract dispute, the majority fails
to faithfully interpret Rule 705(d)(4)(B) or so much as
acknowledge that the Rule was never intended to be
coextensive with contract law.
The temporal limitation invoked by the majority has no
purchase in contract law, either. First, hornbook contract law
provides that “[p]erformances are to be exchanged under an
exchange of promises if each promise is at least part of the
consideration for the other and the performance of each
promise is to be exchanged at least in part for the performance
of the other.” RESTATEMENT § 231. Respondents here did
exactly that. As the majority concedes, and as outlined below,
the agreements to enter into stipulations were offered as partial
consideration for the government’s agreement to not seek
capital punishment. And, performance of the agreement to
enter into stipulations—that is, the act of signing the stipulation
itself after having made the promise to do so—was done in
exchange for the anticipated performance of the government’s
end of the bargain.
Second, the longstanding contract doctrine of executed
consideration concerns contracts premised on conduct (i.e.,
performance) that occurs contemporaneously with formation.
Settled authority on executed consideration makes clear that a
promise to perform an act in the future is no different than
simply performing the promised act, so long as the
performance of the promised act was part of the bargained-for
exchange. As one treatise articulates this principle:
The consideration upon which a contract is
made may be executed or executory. In the

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former case the consideration is executed by
one party in return for the promise of the other,
and nothing remains to be done but to perform
the promise according to its terms. In the latter
the consideration is a promise made by one
party in return for the promise of the other; there
are mutual promises which have to be
performed on both sides, and the promise on
one side may be dependent, or conditional upon
the performance on the other according to the
construction of the terms . . . . But the executed
consideration is not a past consideration, in the
sense of having been executed before the
making of the promise, the execution of the
consideration and the making of the promise
being concurrent acts . . . .
LEAKE & RANDALL, PRINCIPLES OF THE LAW OF CONTRACTS
30–31 (7th ed. 1921); accord 17 C.J.S. CONTRACTS § 128
(“The consideration for a promise may be executory or
executed . . . . Executed consideration . . . is some act
performed or some value given at or before the time that the
return promise is made. The acceptance of executed
consideration creates a binding contract . . . .”).
As another treatise puts it, “[a] contract arises upon
executed consideration when one of the two parties has[,] either
in the act which amounts to a proposal or the act which amounts
to an acceptance[,] done all that he is bound to do under the
contract, leaving an outstanding liability on one side only.”
WILLIAM R. ANSON, PRINCIPLES OF THE LAW OF CONTRACT 82
(O. W. Aldrich ed., 1880). Executed consideration still
constitutes a promise under the agreement, notwithstanding its
timing. As Chief Justice John Marshall stated, “[a] contract
executed, as well as one which is executory, contains

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obligations binding on the parties.” Fletcher v. Peck, 10 U.S.
87, 137 (1810). The PTAs at issue did not solely call for
performance as consideration because they contained
forward-looking promises. See supra Section III.C. Still, the
doctrine helps illustrate why the Majority is wrong to contend,
e.g., Majority Op. 35–36 & n.10, that the timing and manner of
Respondents’ performance on their promises is somehow
unfamiliar to contract law.
Third, contract law contemplates performance that occurs
contemporaneously with an offer. Corbin describes a “reverse”
unilateral contract as “the offer of an act for a promise.” 1
CORBIN § 3.17; cf. Hettinger v. Kleinman, 733 F. Supp. 2d 421,
437 (S.D.N.Y. 2010) (offeree’s acceptance of offeror’s
performance can form a binding contract); Hampton Island
Club, LLC v. B2 Creative, Inc., 685 S.E.2d 751, 751–52 (Ga.
Ct. App. 2009); Classic Restorations v. Bean, 272 S.E.2d 557,
562–63 (Ga. Ct. App. 1980); Moore v. Kuehn, 602 S.W.2d 713,
718–19 (Miss. Ct. App. 1980). For example, “if A sends a book
to B, offering to sell it at a price, and B keeps the book, either
expressly or impliedly promising to pay the price, a contract is
consummated by B’s acceptance.” 1 CORBIN § 3.17 (footnote
omitted). The doctrine is not on all fours with Respondents’
offer and performance, because Corbin’s scenario does not
involve bilateral promises made by both parties. See also
RESTATEMENT § 55 cmt. a (noting reverse unilateral contracts
involve non-promissory offers); WILLIAM L. CLARK, JR. &
ARCHIBALD H. THROCKMORTON, HANDBOOK OF THE LAW OF
CONTRACTS 18 (3d ed. 1914) (covering implied contracts
where “[t]he doing of the work is an offer; the permission to do
it, or acquiescence in its being done, is the acceptance”). Here,
Respondents made forward-looking promises that the
Convening Authority accepted as part of an express, executed
contract. But reverse unilateral contracts nonetheless support
the notion that performance can immediately precede contract

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formation, thus further undermining the majority’s insistence
that “basic principles of contract law” support the government.
Majority Op. 32.
At bottom, the Court rewrites the governing regulation to
place dispositive weight on the timing of performance, but does
not substantiate its concerns with authority. See id. at 33–34.
The resort to selective principles of contract law ignores
military precedent that rejects “such technicalities” when it
concerns “the enforceability of a [PTA] in a criminal case.”
Koopman, 20 M.J. at 110 n.3. Although the majority insists
that performance may occur only after an agreement is fully
formed, see Majority Op. 34, R.M.C. 705(d)(4)(B) contains no
such limitation. Yet the majority’s atextual approach cites
nothing for the proposition that performance of an indisputably
forward-looking promise contained in a valid contract cannot
occur after the promise is made and immediately before the
agreement is executed. For example, in the Farnsworth treatise
the majority cites, id. at 32, there are zero relevant cases cited
in the section about contract law’s “[c]oncern . . . with the
future,” FARNSWORTH § 1.01, that contravene the Military
Judge’s reasoning below. Williston’s treatise, which the
majority also cites as an endorsement of the Second
Restatement’s definition of “promise,” Majority Op. 32, directs
us to no cases that address the issues presented in this appeal.
See 1 WILLISTON § 1:2 n.1 (citing only cases that distinguish
contractual promises from illusory promises,
misrepresentations, and conditions, or that otherwise adopt the
Second Restatement’s definition).
Instead, the Court relies on a nonbinding case about past
consideration. Majority Op. 37–38 & n.12 (citing Univ. S. Fla.
Bd. Trs. v. United States, 92 F.4th 1072, 1082 (Fed. Cir. 2024)).
In this patent dispute, the Federal Circuit addressed a
November 1997 agreement with an “effective period”

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beginning in September 1997. Univ. S. Fla. Bd. Trs., 92 F.4th
at 1082. The court accepted for purposes of appeal that some
money under the contract was used to pay for work done in
April 1997. Id. It held that the contract included valid past
consideration, but the April work was not “obligatory.” Id. at
1082–83. That case has no relevance here. Principally, it
involved “prior” work in a way that this case does not. The
“past” work there occurred seven months before contract
formation and four months before the agreement’s “effective
period.” Id. Here, what the majority insists is “past” conduct
are actions that Respondents took after executing their portions
of the PTAs and practically contemporaneous with formation.
Nor did the Federal Circuit case involve (as this one does) years
of negotiation that produced an agreement containing a
forward-looking promise, bargained for as part of the contract,
that one side performed the same day it entered into the
contract. The central tenet of the past consideration doctrine is
that it applies to acts that occurred prior to, and outside of, the
bargaining process. See 3 CORBIN § 9.1. Here, the stipulations
were clearly part of the bargained-for exchange within the
PTAs.
Perhaps animating the majority’s concern is a fact pattern
we do not confront. Had the Convening Authority rejected the
Respondents’ offers and declined to countersign the PTAs, I
would agree that no performance occurred here. Without an
executed contract, Respondents would have no footing to argue
that merely acting in accordance with the forward-looking
commitment in the offered PTA amounted to performance of a
promise in a formed agreement. In that scenario, Respondents
would need to prevail on a theory of detrimental reliance to
prevent the Convening Authority from withdrawing from the
PTAs. See RESTATEMENT § 90; Pet. Ex. A at 28. But that is
not this case. With an executed agreement, it is illogical to say

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Respondents did not (as the majority puts it) “start[] to
complete a forward-looking commitment.” Majority Op. 33.
To illustrate the majority’s flawed reasoning, suppose a
homeowner calls a painter and asks him for a quote to paint his
front and back fences. The painter comes to the house, reviews
the job, and delivers a signed contract promising to paint the
front fence for $500 and the back fence for $1,000. The painter
begins painting, and he finishes the front fence by the time that
the homeowner signs the contract, returns it to the painter, and
compliments him on the work. However, when the painter
returns days later to paint the back fence, the homeowner tells
the painter that he has withdrawn from the contract, does not
wish for the painter to paint the back fence, and refuses to pay
for the front fence. In a subsequent breach of contract action
for $500, is there any doubt that the painter made a written
promise in the contract to paint the front fence for $500,
manifested his assent to the bargain, exchanged the promise for
consideration, and performed the promise? Particularly where,
as here, the homeowner manifested his assent to promise
payment? The majority would say that the painter did not
perform a promise contained in the signed contract by painting
the front fence, but the law and common sense say otherwise.
Despite the Court’s suggestion that “basic principles of
contract law” require upending the decisions of two military
courts, id. at 32, its opinion offers little by way of actual
contract doctrine to support that point.11 It submits not a single
11 At first blush, one of the majority’s citations seems promising for
its argument. Majority Op. 38 (citing RESTATEMENT § 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.”)). But this Restatement section is only
applicable when divorced from context and it has no bearing here. It

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case to bolster the sole principle justifying its holding on
performance of the stipulation provision. We deny mandamus
when a petitioner’s argument, “though packing substantial
force, is not clearly mandated by statutory authority or case
law.” In re Al Baluchi, 952 F.3d at 369 (cleaned up) (emphasis
added). Here, the majority has not identified an example in
which a court held that a promise in a fully formed contract
may be “performed” only after all parties have signed the
agreement. And even if such a case existed, the Court cannot
explain why this practice is prohibited by R.M.C. 705(d)(4)(B),
which is the law we must apply.
E.
Last, the government argues that if we determine that
Respondents began performing on a promise to enter into
stipulations, we would “effectively nullify” the convening
authority’s power to withdraw under R.M.C. 705(d)(4)(B).
Pet’r Reply 10. In essence, the government urges that my
interpretation would undermine the Rule’s “practical effect,”
id., because any accused could unilaterally begin performance
before the convening authority ever has time to withdraw.
But judicial review requires courts to interpret laws as
written, not to construe regulations or interpret contracts to
deals with “[a]cceptance of [n]on-promissory [o]ffers],” or, in
doctrinal terms, the unilateral contract. RESTATEMENT § 55
(emphasis added); see also 1 WILLISTON § 1:18 (“A unilateral
contract results from an exchange of a promise for an act . . . .”). For
the unilateral contract paradigm to fit here, the government would
need to accept through performance (and not promises) because as
all agree, Majority Op. 2, 5, Respondents offered the PTAs. The
majority never asserts as much. Nor could it, because the
government clearly accepted the PTAs by responding with promises
of its own.

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satisfy the government’s policy concerns. No military court
has questioned Dean, which interpreted language identical to
that contained in R.M.C. 705(d)(4)(B). 67 M.J. at 229. Now,
fifteen years later, the government cannot feign surprise that
the Military Judge and CMCR would follow this uncontested
precedent. Nor does the government point to evidence from
the preceding decade and a half to show why Dean’s rule is, as
a matter of plain text or policy, untenable.
And, both the text and timing of the Rules for Military
Commissions suggest the Executive Branch understood the
practical effect of Dean and rejected the government’s
“effective nullification” argument. In 2007, the Secretary of
Defense issued regulations for the recently established military
commission, which prohibited the convening authority from
withdrawing from a PTA after an accused “begins
performance” of a promise. OFF. OF THE MIL. COMM’NS & OFF.
OF THE SEC’Y OF DEF., REGULATION FOR TRIAL BY MILITARY
COMMISSIONS, at ch. 12-3 (Apr. 27, 2007),
https://www.mc.mil/Portals/0/Reg_for_Trial_by_mcm.pdf.
Three years later, the Executive Branch issued the first Rules
for Military Commissions, which retained the “begin[ning]
performance” standard from the Rules for Courts-Martial and
the 2007 Regulation. R.M.C. 705(d)(4)(B) (2010). Moreover,
they implicitly acknowledged the Rules for Courts-Martial
construction of “begins performance” as encompassing actions
done “pursuant to” an agreement. See id. at 705(a) (citing
MCM app. 3); id. at 102(b) (noting procedure and construction
of military commission rules were “based upon” the
courts-martial rules); see also supra Section III.B. (discussing
“pursuant to” as contained in the 1984 and 2008 MCM
appendices). Because the Rules for Military Commissions
were explicitly “based upon” the Rules for Courts-Martial and
issued just one year after Dean, the drafters of R.M.C.
705(d)(4)(B) knew how the highest military court construed

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“begin[ning] performance.” And the drafters consciously
chose to import the exact text of R.C.M. 705(d)(4)(B) even
though they rejected at least one comparable courts-martial
rule—suggesting that the Executive Branch endorsed or, at a
minimum, acquiesced in Dean’s interpretation. Cf. R.M.C.
703(b)(3)(B) (2010) (noting in discussion that “[t]his rule
departs from the R.C.M. 703(b)(3)”).
To the extent that the correct interpretation of the Rule
poses practical problems, the government can amend it. It did
so to the corresponding Rule for Courts-Martial after Dean.
See R.C.M. 705(e)(4)(B)(i) (permitting convening authority to
withdraw from pretrial agreements at any time “before
substantial performance by the accused of promises contained
in the agreement”) (emphasis added)). But the government
(including the Defense Department under Secretary Austin)
left Rule 705(d)(4)(B) untouched. We are bound to interpret it
as written.
Even under the government’s preferred interpretation, the
Rule hampers the convening authority’s ability to withdraw. In
its briefing, the government attempted to distinguish Dean by
noting that there, “the convening authority did not attempt to
withdraw until nearly a month after the agreement was
entered.” Pet’r Reply 10. Yet at oral argument, the
government agreed that Respondents could have signed the
stipulations “less than a second” after the PTAs were executed
and have begun performance under the Rule, even though
there, the Convening Authority would not have any meaningful
opportunity to withdraw. Oral Arg. Tr. 65:3–66:22. Given that
the government’s own interpretation of the Rule does not
mitigate its policy concerns, they carry little weight.
* * *

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The Military Judge’s conclusion that Respondents began
performing corresponded to the text and drafting history of the
Rule, reasonably relied upon persuasive authority interpreting
an analogous rule, and faithfully adhered to contract principles.
The CMCR was right to affirm his decision. Here, the
government has not shown that either court was wrong, let
alone made a compelling case that the Military Judge clearly
and indisputably erred. By adopting the government’s
position, the majority grants an extraordinary remedy when the
right to relief is unclear, heavily disputed, and based on
underwhelming authority.
IV.
Finally, the government has not established a clear and
indisputable right to relief because it fails to show that the
Military Judge committed clear error by ruling that
Respondents began performance of a promise contained in the
PTAs when they refrained from questioning witnesses at a
suppression hearing. As I explain, the scope of these promises
is not so narrow as the majority suggests, and under any
construction of the promises, Respondents began performance
within the meaning of Rule 705(d)(4)(B).
A.
The parties addressed the PTAs’ impact upon the motion
to suppress hearing before the Military Judge on two separate
occasions. First, on July 30, the prosecutor informed the
Military Judge that the agreements placed the parties “in a
unique situation,” given that “[p]art of those deals is waiving
all motions,” such that “it wouldn’t necessarily be appropriate
for people to continue cross-examining any of the witnesses.”
Pet’r Resp. to Order of Apr. 14, 2025, at App. 910 (Apr. 15,

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2025), Dkt. No. 2111203. The Military Judge indicated his
agreement with the government’s position. Id. Because the
PTAs had not yet been countersigned as of this date, the parties
did not finalize their course of action.
Second, on August 1, the day after both parties had
executed the PTAs, the parties convened for a prescheduled
hearing on motions to suppress, including those previously
filed by Respondents. Supra Part I. The Military Judge and
the prosecutor discussed again whether, given the PTAs, it
remained appropriate for Respondents to participate in the
hearing. Id. The government represented that the PTAs—
specifically, a provision of the agreements requiring
Respondents to “waive[] all motions”—precluded
Respondents from cross-examining the witness. See Pet’r
Resp. to Order of Apr. 14, 2025, at App. 917 to App. 918 (Apr.
15, 2025), Dkt. No. 2111203. None of Respondents’ counsel
objected. In fact, counsel for another defendant, al Baluchi,
saw “it pretty much the same way,” and questioned whether
Respondents “should be required to appear for the first day of
each session anymore.” Id. at App. 918. The Military Judge
agreed, essentially ruling that waiving a motion encompasses
agreeing not to question a witness at a hearing on said motion.
See id. at App. 919. The CMCR, which has seen more PTAs
than any judge on this Court, construed the language in the
same manner. Pet. Ex. B at 17 (“Respondents clearly began
performance of a promise contained in the PTA—not to make
or participate in motions . . . .”). Respondents thus refrained
from cross-examining the witness testifying at the joint motion.
The most reasonable inference based on the record is that
Respondents either conferred with the prosecutor before the
August 1 hearing and collectively agreed on how to proceed
with the substantive motion, and/or that they concurred in the
government’s assessment of the PTAs. For the Court or the

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government to suggest otherwise inverts the burden of proof at
the mandamus stage. This understanding is further supported
by statements made by Al Hawsawi’s counsel the following
day, when he informed the Military Judge (before the Secretary
withdrew from the PTAs) that he understood that not
“engaging in any examination of the witness” and “abstaining
from that” constituted “specific performance on that plea
agreement.” Pet’r Resp. to Order of Mar. 4, 2025, at
49420:19–21:5 (Mar. 5, 2025), Dkt. No. 2103963; see also Al
Hawsawi & Mohammed Resp. in Opp’n to Pet. 18, Dkt. No.
2095002 (“No defense team disputed counsel for the
government’s stated understanding of their obligations or that
the letter and spirit of the pretrial agreements required the
parties to bring contested litigation of guilt to a stop.”).
From this record, the Military Judge appropriately
determined that Respondents began performance of a promise
contained in the agreements. So too did the CMCR. I first
address the scope of the relevant promise and explain why the
majority’s hyper-technical reading of the PTAs misses the
mark. Even assuming that the Court correctly construed the
promises, Respondents began performance under the Rule.
The majority’s cramped interpretation of the agreements and
R.M.C. 705(d)(4)(B) finds no support in those authorities’ text,
the criminal context, or military jurisprudence.
B.
A guilty plea necessarily waives a defendant’s right to
further factual development, even as to non-waivable motions.
This foundational principle of criminal practice is why every
military justice actor below—Respondents, the government,
the Military Judge, and the CMCR—understood that once both
parties had signed the PTAs, it would be fruitless and futile for
Respondents to litigate the scope of the factual record through

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cross-examination at a suppression hearing. It is clear from
longstanding Supreme Court and military justice precedent and
the record below that, had Respondents insisted on
cross-examining the witness, the government would argue that
Respondents breached the PTAs. See R.M.C. 705(d)(4)(B)
(permitting withdrawal when accused “fail[s] . . . to fulfill any
material promise or condition in the agreement”). For the
Court now to suggest that refraining from questioning was not
beginning performance both misapprehends the basic realities
of criminal procedure and also fails to give due deference to the
reasoning of these specialized tribunals in the construction of a
military procedural rule.
In United States v. Broce, 488 U.S. 563, 571–74 (1989),
the Supreme Court held that a defendant whose plea agreement
was ratified by the trial court is not entitled to an evidentiary
hearing or further fact development to lodge a collateral attack
on the conviction, even as to a claim of double jeopardy (which
is non-waivable). It should thus be no surprise that the parties
and the Military Judge all agreed that the PTAs precluded
Respondents from developing the factual record through
cross-examination. Any other interpretation of the meaning of
waiving all motions would indeed undermine Broce’s central
holding. Cf. Joubert v. Hopkins, 75 F.3d 1232, 1248 (8th Cir.
1996) (“[W]e are perplexed by Joubert’s argument that the trial
court somehow wronged him by not holding a suppression
hearing when his plea was unconditional.”).
The very effect of Respondents’ agreement to plead guilty
was to forego the factfinding process (that is, their opportunity
to test and contest the record against them), rendering
cross-examination at the suppression hearing inapt. This is
why the CMCR construed the PTAs’ promises to mean that
Respondents could not “make or participate in motions,” also
described as a promise “not [to] litigate or contest motions.”

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Pet. Ex. B at 17, 3. The Military Judge and the CMCR had no
need to identify a precise provision of the agreements which
contained a particularized promise because, as Broce instructs,
the entire purpose of a plea agreement is to conclude litigation
by taking the possibility of a trial off the table—meaning the
promises in the plain text of the PTAs had that same effect. See
United States v. Jones, 69 M.J. 294, 299 (C.A.A.F. 2011) (“An
unconditional guilty plea generally waives all pretrial and trial
defects that are not jurisdictional or a deprivation of due
process of law.”); United States v. Dusenberry, 49 C.M.R. 536,
540 (C.M.A. 1975) (stating that an accused who “factually
admit[s] guilt by a plea of guilty and receive[s] the benefit of a
possible pretrial agreement . . . waives both his right to a trial
of the facts and any corresponding right to appellate review of
any issues that may have been raised in that proceeding”); MIL.
R. EVID. 311(e) (“[A] plea of guilty to an offense that results in
a finding of guilty waives all issues under the Fourth
Amendment . . . and MIL. R. EVID. 311–317 with respect to the
offense, whether or not raised prior to plea.”).12
This practical reality was reflected in the text of the
agreements since, as both military tribunals recognized, Pet.
Ex. A at 8 n.41; Pet. Ex. B at 3, Respondents began
performance of two promises in the PTAs when they refrained
from cross-examining the witness: Respondents’ agreement to
12 See also United States v. Ellis, 2008 WL 4898643, at *2 (A.F. Ct.
Crim. App. Oct. 22, 2008) (“[T]rial defense counsel properly advised
the appellant that he would forever waive his motion to suppress by
accepting the [PTA].”); United States v. Felicies, 2005 WL 958397,
at *4 n.4 (N-M. Ct. Crim. App. Apr. 27, 2005) (enforcing waiver of
motion to suppress even though “[t]he actual [PTA] does not include
a provision waiving possible motions[,]” because “appellant
understood that by pleading guilty, he was agreeing to waive any
Fourth Amendment issues”) (citing MIL. R. EVID. 311)).

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waive all waivable motions, and their promise to move to
withdraw all pending motions, see, e.g., Mohammed PTA ¶ 23.
The majority nevertheless contends that the subject matter
experts below committed “straightforward error given the plain
text of the pretrial agreements and the undisputed facts in this
case.” Majority Op. 22. The Court’s sparse analysis begins
and ends with its observation that “a commitment not to
question witnesses appears nowhere in the agreements’ text.”
Id. at 22–23. It then engages in a hyper-literal reading of the
two promises identified by Respondents, applying dictionary
definitions to each word (e.g., “move,” “withdraw,” “waive”)
to conclude that abstention from cross-examination does not
fall within those parameters. See id. at 24–25, 28–30. While
dictionary definitions can shed light on the intended meaning
of a plea agreement’s text, we have repeatedly declined to rely
on such extra-textual sources isolated from relevant criminal
context. See United States v. Hunt, 843 F.3d 1022, 1028 (D.C.
Cir. 2016) (“True, ‘term’ can mean ‘condition.’ But in the
context of Hunt’s appeal waiver, it more likely connotes
‘duration.’”) (citation omitted) (evaluating two competing
definitions using context); Ramsey v. U.S. Parole Comm’n, 840
F.3d 853, 863 (D.C. Cir. 2016) (considering dictionary
definitions “in the criminal context” with reference to binding
caselaw construing the relevant terms). Blackletter contract
law adopts the same approach. Although “[d]ictionary
definitions may be of help in showing the general use of
words, . . . they are not necessarily dispositive[;]” instead, “the
meaning attached to a word by the parties [often] must be
gleaned from its context, including all the circumstances of the
transaction.” FARNSWORTH § 7.11.
The majority never acknowledges, let alone analyzes, how
motions hearings are generally handled once a plea agreement
is reached, as described by the Supreme Court in Broce,

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countless other military and civilian cases, see supra, and the
commentary to Rule 705, see supra Section III.B. This is error,
given that these practices are clearly part of the “surrounding
circumstances” that the majority concedes, Majority Op. 19,
are relevant to determining what the promises to waive and
withdraw motions mean, and whether those promises are
ambiguous, even on de novo review. Both the Military Judge
and the CMCR took those surrounding circumstances into
account, which is why they concluded, quite reasonably, that
these promises meant Respondents had agreed not to litigate
their motions. See supra Section IV.A.
In other words, simply because “[d]eclining to examine
witnesses is [not] mentioned” in the text of the PTAs does not
mean that Respondents made no such promise. Cf. Majority
Op. 24. Their conduct still fell within the parameters of the
promises to waive all waivable motions and to move to
withdraw. And even accepting that the majority’s
word-by-word definitional construction of the relevant
promises holds water, it is far from the only reasonable
interpretation of the contract language: Two different military
tribunals and the parties disagreed with its interpretation. It
defies logic, then, for the majority to proclaim that these
contract terms are unambiguous and thus subject to de novo
review. See id. at 18–22 & n.6. In essence, the majority’s
reasoning is circular: It first ignores contrary interpretations of
the PTAs to conclude that its reading is “straightforward” from
the text, which in turn allows the Court to elide the requisite
deference owed to the Military Judge’s factual findings
regarding the scope of ambiguous promises. See supra Part II.
Appreciating the criminal procedural context and applying a
deferential review to the Military Judge’s determinations
necessitates a conclusion that the PTAs encompassed a broader
promise to cease litigating the pending motions to suppress,

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including by cross-examination. So defined, Respondents
undisputably performed a promise contained within the PTAs.
C.
Even accepting the Court’s narrow definition of the
promises contained in the PTAs, Respondents began
performance by refraining from cross-examination.
1.
First, Respondents began performance of their promise to
waive all waivable motions when they refrained from
cross-examining the witness at the suppression hearing. Each
PTA encompassed such a promise. See Mohammed 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.”); bin
‘Atash PTA¶ 22 (similar); Al Hawsawi PTA¶ 23 (similar).
Although the majority contends that Mohammed and Al
Hawsawi forfeited any argument based on this provision of the
PTAs, they sufficiently defended the Military Judge’s ruling on
this basis in their filings here.13
13 See Al Hawsawi & Mohammed Resp. in Opp’n to Pet. 5, Dkt. No.
2095002 (“Respondents duly suspended their participation in
on-going hearings, which included waiving the examination of a
government witness then testifying on the remaining defendant’s
highly contested motion to suppress.”); id. at 18 (arguing that
Military Judge’s decision below rested on government representation
that waiver provision barred cross-examination); see also bin ‘Atash
Resp. in Opp’n to Pet. 12, Dkt. No. 2094923 (“[P]ursuant to his
promise[] . . to ‘waive[] all waivable motions,’ . . . Mr. bin ‘Atash
refrained from questioning any witnesses to support, among other
things, his pending motion to suppress . . . .”).

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Recall that Rule 705(d)(4)(B) encompasses action taken
pursuant to a promise contained in the agreement, so the text
of the Rule is broader than consummated performance. To
determine whether conduct is pursuant to, or in accordance
with, a promise, we must understand the scope of the promise.
Legal dictionaries define “waive” as “[t]o abandon, renounce,
or surrender (a claim, privilege, right, etc.); to give up (a right
or claim) voluntarily,” or “[t]o refrain from insisting on (a strict
rule, formality, etc.); to forgo.” Waive (vb.), BLACK’S LAW
DICTIONARY (12th ed. 2024). One can thus “waive” an
argument through forbearance, by refraining from pursuing
such an argument, so long as waiver is committed knowingly
and voluntarily. See Waiver, BALLENTINE’S LAW DICTIONARY
(3d ed. 1969) (“[The term] implies the intentional forbearance
to enforce a right, and necessarily, therefore, assumes the
existence of an opportunity for choice between the
relinquishment and the enforcement of the right.”); id. (waiver
may be shown by “an act or omission”) (emphasis added)).
This understanding aligns with common usage definitions.
See Waive, OXFORD ENGLISH DICTIONARY,
https://www.oed.com/dictionary/waive_v1
[https://perma.cc/9Y9KVX3L] (“To relinquish (a right, claim,
or contention) either by express declaration or by doing some
intentional act which by law is equivalent to this; to decline to
avail oneself of (an advantage); to refuse to accept (some
provision made in one’s favour).”) (emphasis added)); id. (“To
refrain from insisting upon, give up (a privilege, right, claim,
etc.); to forbear to claim or demand.”) (emphasis added)); id.
(“To forbear persistence in (an action or course of action); to
refrain from pressing (an objection, a scruple, an argument).”)
(emphasis added)).
Moreover, Respondents’ abstention from prosecuting their
pending motions was consistent with the ultimate waiver of

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waivable motions that would accompany their formal guilty
plea. See supra Section IV.B. Thus, to “begin[] performance”
of the promise “contained in the agreement[s]” to waive all
waivable motions, R.M.C. 705(d)(4)(B), Respondents had to
“act[] pursuant to” their commitment to forbear from enforcing
a waivable motion, 1984 MCM at A21-35 to A21-36; see also
supra Section III.B (explaining that “pursuant to” means to act
in conformance with). As the Military Judge correctly
concluded when it interpreted this military procedural rule,
they unquestionably did so by refraining from enforcing their
right to cross-examine the witness in support of their pending
motions to suppress.
Respondents’ forbearance sufficed here. While “one must
understand his right to object and indicate in some appropriate
manner a desire to refrain from asserting that right,” United
States v. Kelley, 23 C.M.R. 48, 52 (1957), “[m]any courts have
taken the position that where there is no objection and it is
otherwise clear from the record that it was an intentional
relinquishment of a known right, the doctrine of waiver will
apply,” United States v. Campos, 67 M.J. 330, 332 & n.3
(C.A.A.F. 2009) (collecting cases). In its waiver analysis, the
Court of Appeals for the Armed Forces considers whether
“defense counsel’s trial strategy could . . . be considered an
intentional relinquishment or abandonment” of the right at
issue. United States v. Harcrow, 66 M.J. 154, 157–58
(C.A.A.F. 2008) (cleaned up). If “defense counsel [is] clear
about her intent to refrain from questioning [a] witness,” she
“need not have literally told the judge that she waived the
issue.” United States v. Avery, 52 M.J. 496, 498 (C.A.A.F.
2000). Basic contract principles also reflect that forbearance
can constitute performance on a promise. See FARNSWORTH
§ 2.04; Hamer v. Sidway, 27 N.E. 256 (N.Y. 1891)
(prototypical consideration case, in which one party’s promise
to forbear from certain conduct constituted consideration, and

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actual forbearance was performance). It is thus immaterial that
“[n]o Respondent objected to that preservation of their pending
motions or asked the court to withdraw [their] motion to
suppress.” Majority Op. 26.
Here, the execution of the PTAs, coupled with the
prosecutor’s representation that cross-examination was
foreclosed by the agreements and Respondents’ decision not to
object to that representation, followed by Respondents’
declining to cross-examine the available witness, demonstrates
that Respondents “intentional[ly] relinquish[ed] or
abandon[ed]” the right at issue, consistent with their “trial
strategy” of compliance with the PTAs. Harcrow, 66 M.J. at
158 (quotation omitted); cf. United States v. Bridges, 55 M.J.
60, 65 (C.A.A.F. 2001) (Sullivan, J., concurring) (concluding
that failure to cross-examine a witness did not constitute waiver
where “[t]here was no stipulation” and “no strategic inaction”
could be discerned). Nothing in the record suggests
Respondents’ lawyers made a careless or haphazard decision
to not prosecute a significant and substantive pretrial motion.
As the Court of Appeals for the Armed Forces has clarified,
“[n]o magic words are required to establish a waiver.” United
States v. Smith, 50 M.J. 451, 456 (C.A.A.F. 1999).
True, “[c]ounsel stood silent in response to the military
judge’s proposal.” Majority Op. 26. And while I agree that we
should not endorse an across-the-board rule that “criminal
defendants can waive motions protecting their constitutional
rights by saying and doing nothing,” id. at 30, we need not
reach such a conclusion. Under military law, what matters is
whether the evidence demonstrates “that defense counsel made
a purposeful decision to agree to the” course of action. Smith,
50 M.J. at 456. Here, the record amply demonstrates such
agreement. The clearest read of the Military Judge’s decision
is that he made such a finding. Pet. Ex. A at 8 & n.41, 26 &

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n.114 (identifying Respondents’ forbearance from prosecuting
the motion to suppress and citing the representation made by
government’s trial counsel that the promise to waive waivable
motions precluded the accused from contesting litigation). On
review, the CMCR agreed with the Military Judge’s finding.
Pet. Ex. B at 17.
The majority attempts to undermine the Military Judge’s
understanding of the parties’ intent by noting that he had not
read the PTAs before the July 30 and August 1 hearings and
thus “did not purport to interpret or effectuate” the agreements.
Majority Op. 26 n.7. That rejoinder is not dispositive and
instead confuses what happened below. The Military Judge
heard the parties’ representations that the PTAs contained a
promise to “waive all motions,” and he did not need to see a
piece of paper to understand what those words meant. He was
entitled to rely on the litigants’ representations when
expressing his view of what the PTA provision required.
Furthermore, his ultimate decision was rendered following his
consideration of the PTAs’ text. Pet. Ex. A at 6– 7 & nn.29–30
(citing PTAs). He reached that decision by citing his August 1
colloquy with the prosecutor, leaving no question about how
we should understand the hearing transcript. Id. at 8 n.41. And
the view of both military courts comports with a basic
understanding of guilty pleas in the criminal and military
contexts, along with the waivers of motions that accompany
them. Broce, 488 U.S. at 569–76; cf. Hunt, 843 F.3d at
1028–29 (“A criminal defendant may take a district court’s oral
pronouncement about a written waiver at face value even if it
mischaracterizes the waiver, and even if the waiver is otherwise
unambiguous, . . . especially because the government made no
objection and offered no clarification . . . .”) (internal quotation
marks omitted). The majority offers no basis to rule that this
finding was clear error. The Court’s attempt to debase the

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Military Judge’s statements at the suppression hearings falls
flat.
The Rules for Military Commissions further support the
Military Judge’s conclusion. They provide that “[f]ailure by a
party to raise defenses or objections or to make [pretrial]
motions or requests . . . shall constitute waiver.” R.M.C.
905(e). Specifically, the Rules state that where the defense has
failed to move to suppress or to object to admission, “the
defense may not raise the issue at a later time except as
permitted by the military judge for good cause shown. Failure
to so move or object constitutes a waiver of the objection.”
R.M.C. 304(c)(2)(A); see also R.M.C. 801(g) (“Failure by a
party to raise defenses or objections or to make requests or
motions” in a timely manner “shall constitute waiver thereof.”).
It is thus immaterial that Respondents did not “inform the court
that they no longer wished to prosecute or proceed with their
suppression motions,” or that they did not make a “formal or
even informal request of the court.” Majority Op. 25.
That the waiver of all waivable motions was, by the terms
of the PTAs, to take effect upon the court’s acceptance of the
guilty plea does not change this analysis. See id. at 29 (noting
that “the promise[s] to waive motions [were] conditioned on a
particular act that had not yet occurred when the Secretary
withdrew from the agreements”). Of course, “[t]here is no
doubt that a plea of guilty implicitly waives” a number of
waivable rights. United States v. Cowles, 16 M.J. 467, 468
(C.M.A. 1983) (right against self-incrimination); R.M.C.
910(j) (“[A] plea of guilty which results in a finding of guilty
waives any objection, whether or not previously raised, insofar
as the objection relates to the factual issue of guilt of the
offense(s) to which the plea was made.”); R.M.C. 304(c)(5)
(“[A] plea of guilty to an offense that results in a finding of
guilty waives all . . . motions and objections under this rule

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with respect to that offense regardless of whether raised prior
to plea.”); see also Joubert, 75 F.3d at 1248; United States v.
Arango, 966 F.2d 64, 66 (2d Cir. 1992).
But while the legal effect of a guilty plea is to waive all
waivable motions, an accused may still voluntarily waive such
motions prior to pleading guilty. And Rule 705(d)(4)(B), as
emphasized earlier, is not concerned with the completion of
performance (i.e., actual waiver), but rather the beginning of
performance (i.e., conduct undertaken pursuant to a promise to
waive). Respondents’ strategic decision to refrain from
cross-examination began performance: They began “to refrain
from pressing” their pending motions in anticipation of the
acceptance of their guilty pleas. See Waive, OXFORD ENGLISH
DICTIONARY (last modified Sept. 2024),
https://www.oed.com/dictionary/waive_v1?tl=true
[https://perma.cc/9Y9KVX3L].
The majority agrees that Respondents could voluntarily
waive any motions prior to pleading guilty, Majority Op. 29,
but protests that “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,”
id. This may very well be true under the common law of
contracts. But the majority does not explain why we should
read R.M.C. 705(d)(4)(B) as wholly constrained by the
common law. Cf. United States v. Burwell, 122 F.4th 984, 994
(D.C. Cir. 2024) (rejecting government’s argument that
“Congress imported extortion’s common law tradition
wholesale into the bank robbery statute” absent any evidence
of such legislative intent). Contract principles are only
illuminating to the extent that they shed light on the scope of
legal terms of art contained in the Rule, such as “performance”
or “promise,” derived from the common law. See Scheidler v.
Nat’l Org. for Women, Inc., 537 U.S. 393, 402 (2003) (“Absent

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contrary direction from Congress, we begin our interpretation
of statutory language with the general presumption that a
statutory term has its common-law meaning.”). Where drafters
have expressed no intent to cabin their remedies to those
available at common law, the common law does not reach from
the grave to constrain the outcome.14 See supra Part III.B.
The majority (and the government) protest that “the
prosecutor’s atextual reading of the pretrial agreements cannot
change what the contract means.” Majority Op. 27; Pet’r Reply
12–14. In other words, they reject reliance on the
government’s concession before the Military Judge that
Respondents’ refraining from cross-examining the witness at
the suppression hearing was required by the promises they
made in the PTAs. Majority Op. 27.
Yet, as shown above, there was nothing textually
unanchored about the prosecutor’s understanding of the waiver
language in the PTAs. Furthermore, even if this line of
reasoning had some merit, it only advances the majority’s
14 Prudential Insurance Co. of America v. Rand & Reed Powers
Partnership, cited by the majority, is consistent with this point. 141
F.3d 834 (8th Cir. 1998). There, the Eighth Circuit “recogniz[ed] the
common law ‘perfect tender in time’ rule to reject premature
performance as performance” under a statutory provision, Majority
Op. 29 (quoting Prudential Ins., 141 F.3d at 836), but did so because
the Iowa Supreme Court had reaffirmed the application of the
common-law rule following the enactment of the statute, see
Prudential Ins., 141 F.3d at 836. The Eighth Circuit’s recognition of
the common-law rule followed from its textual interpretation of the
statutory provision, which it reasoned did not create any absolute
rights and was thus amenable to limitation by common-law
principles. Id. By contrast, here, the majority does not attempt to
reconcile its contention that the common law constrains R.M.C.
705(d)(4)(B) with the plain text of the Rule.

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conclusion as to the scope of the relevant promise in the PTAs.
And assuming the relevant promise is as narrow as the majority
suggests (i.e., limited to filing a formal waiver of all waivable
motions), the majority’s reasoning does not undermine the
Military Judge’s analysis applying the Rule 705(d)(4)(B)
standard to such a promise to determine whether Respondents
began performance. It further fails to engage with what it
means to “waive” a motion, which includes refraining from
prosecuting a motion. Again, the scope of a promise to “waive
all waivable motions” is most properly considered a question
of fact, and yet the Majority fails to apply the clear error
standard of review.
Similarly, the majority dismisses the statement by Al
Hawsawi’s counsel as insufficient to perform the promise to
withdraw, cf. id. at 27 (“[S]aying so . . . is not the same thing
as actually beginning perform[ance] . . . .”), but never explains
why it was improper for the Military Judge to consider this
evidence to determine whether Respondents had begun
performing by refraining from prosecuting the motion. See
supra Section II.A (describing trial court’s unique role in
assessing the conduct before him and weighing credibility).
After all, as described above, to “waive” is to “refrain.” The
prosecutor was intimately familiar with the PTAs, and he
believed that if the accused questioned the witness, they would
be in breach of the agreements. Al Hawsawi’s counsel
represented that he refrained from questioning the witness
because he understood cross-examination to be a step in
furtherance of breach.
The Court also places unwarranted emphasis on the
Military Judge’s statement that, if the PTAs fell through,
Respondents would have another chance to cross-examine the
witness. Id. at 25–27, 30. Holding their motions in abeyance
was nothing more than a trial judge wisely managing his

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docket. Why in the world would the Military Judge
immediately treat Respondents’ motions as having been fully
withdrawn at this juncture, so that their motion hearings would
have to start all over again from the beginning, if, for some
reason, their guilty pleas were not accepted at a later date? At
best, we can consider the Military Judge’s statement as
attempting to minimize harm to Respondents if the PTAs were
not eventually accepted by the court. Such mitigation efforts
could weaken a detrimental reliance claim in contract, but this
point has no relevance to whether Respondents began
performing under Rule 705(d)(4)(B). Finally, even if we
understand the Military Judge to have “kept those motions
alive pending further proceedings” such that “[n]othing was
terminated or withdrawn,” id. at 26, this at most suggests
Respondents may not have fully performed. But again, the
proper inquiry is whether Respondents had begun performing.
See infra Section IV.B.
The majority nowhere explains why it is clear and beyond
dispute that the Military Judge erred in concluding that when
Respondents refrained from cross-examining the witness, such
inaction constituted a first step to “waive all waivable
motions.” Based on the text of the agreements, military justice
caselaw on waiver, and the authoritative regulations,
Respondents began performance of their promise to waive all
waivable motions. Against this wealth of authority, I cannot
join the majority’s unreasoned holding to the contrary. The
government has not carried its heavy burden.
2.
A second promise also supports the Military Judge’s
decision. Respondents each promised to “move to withdraw
all pending motions.” Mohammed PTA¶ 23; see also bin
‘Atash PTA¶ 22 (same); Al Hawsawi PTA¶ 23 (same). Their

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decision to forego cross-examining the witness at the
suppression hearing constituted beginning performance of this
promise.
Starting again with the text, the majority correctly notes
that “move to withdraw” means “telling the court that a request
for some type of relief is abandoned and will no longer be
pursued.” Majority Op. 24. More specifically, “move” means
“[t]o make an application (to a court) for a ruling, order, or
some other judicial action,” Move, BLACK’S LAW DICTIONARY
(12th ed. 2024), and “withdraw” means “[t]o refrain from
prosecuting or proceeding with (an action),” Withdraw,
BLACK’S LAW DICTIONARY (12th ed. 2024). To begin
performance of such a promise, then, Respondents must have
taken some action pursuant to seeking judicial action that
would allow them to refrain from prosecuting a pending
motion. By accepting the government’s characterization of the
PTAs, refraining from questioning the witness at the
suppression hearing, and then reiterating the shared
understanding of the scope of the agreements the following
day, Respondents’ counsel took steps towards withdrawing
their pending motions to suppress by failing to prosecute
them.15 The Military Judge’s conclusion was thus not clearly
and indisputably erroneous.
The majority rightly notes that to complete performance of
this promise, Respondents would likely need to make an oral
or written motion. See Majority Op. 25 (“They made no formal
15 The majority characterizes this conduct as “silent acquiescence”
and “silent inaction.” Majority Op. 28; see also id. at 27, 30. But it
provides no further explanation as to why, under these particular
circumstances and based on the unusual inaction and representations
of various counsel, the Military Judge clearly erred in concluding
that such silent acquiescence began performance.

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or even informal request of the court that could amount to
moving to withdraw a motion or even beginning to do so.”).
But again, Rule 705(d)(4)(B) forbids withdrawal in
circumstances short of completed performance. The Court’s
contrary reasoning thus collapses the distinction between
“begin[ning] performance” under R.M.C. 705(d)(4) and
concluding performance. Such analysis is atextual because it
fails to give effect to the term “begins.” Cf. Fischer v. United
States, 603 U.S. 480, 486 (2024) (“[W]e must give effect, if
possible, to every clause and word of the statute.”) (cleaned
up)); United States v. Hunter, 65 M.J. 399, 402 (C.A.A.F.
2008) (applying principle to interpretation of a Rule for
Courts-Martial). It also lacks support in the text and history of
R.M.C. 705(d)(4). See supra Section III.B.1. As discussed,
the Rule precludes withdrawal not only upon completed
performance, but also once a party takes steps towards
performing. That “Respondents’ pending motions were
preserved for future action” thus does not govern the
applicability of R.M.C. 705(d)(4)(B). See Majority Op. 26.16
For these reasons, the government has come nowhere close
to establishing, clearly and indisputably, that the Military Judge
erred in concluding that Respondents began performance of
16 Nor would I assign any weight to whether defense counsel used
talismanic words, such as “motion” or “withdraw.” Cf. Majority Op.
24–25. Judicial review requires us to look at the factual findings and
record below and apply the law to what transpired, including by
analyzing whether what happened maps on to a legal standard. Cf.
United States v. Abney, 957 F.3d 241, 248 (D.C. Cir. 2020) (“We do
not require defendants or their counsel to invoke magic words or
talismanic language . . . when the party asked the court for the
desired judicial action.”). And here, our review of what occurred
below is circumscribed by the deference we owe to the Military
Judge’s factual findings. See supra Part II.

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promises contained in the PTAs when they refrained from
cross-examining the witness at the suppression hearing.
V.
Against the weight of authority, the government insists
there was no “promise” that Respondents began to perform.
See Pet. 17. That view is contradicted by the parties’ collective
decision to write promissory language into the agreement, the
parties’ further agreement to frame the failure to enter
stipulations as a material breach, the way both sides
characterized the PTAs during negotiations, the conclusions
that the Military Judge reached, and the view of the CMCR.
However the promise is construed, Respondents began
performance under the Rule by signing the factual stipulations.
And by refraining from cross-examining a witness at the
motion to suppress hearing, they similarly began performance
of their promises to waive all waivable motions and to move to
withdraw pending motions.
It is impossible for me to conclude that the government has
shown it is clearly and indisputably entitled to relief. That
demanding mandamus standard is even further out of the
government’s reach where the government cannot cite binding
on-point precedent in support of its claims and we are
constrained to reviewing for clear error both the Military
Judge’s finding that the PTAs encompassed the relevant
promises and his application of the withdrawal regulation. But
even on de novo review of those findings, the government has
not met its burden.
I respectfully dissent.

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