Susan Escallier excelled at being an Army lawyer. During her 32 years in uniform, she had jumped out of airplanes, deployed to Iraq three times and was a devoted, competitive runner. Then she suffered a stroke and had to retire in 2021.
So, a year ago, when she was offered a job as the Pentagon official in charge of the war court system at Guantánamo Bay, it was her ticket back to serving the military. It was a thankless job, largely unseen and even less understood.
For months, Ms. Escallier quietly oversaw years-old cases. Then she made one of the most important decisions in the court’s history, setting off events that have drawn attention to her role and to the dysfunctional military commissions.
On July 31, Ms. Escallier approved a prosecution plea deal with the man accused of masterminding the Sept. 11 plot, Khalid Shaikh Mohammed, and two other defendants. In exchange for pleading guilty, they would serve life in prison instead of someday possibly facing a death sentence.
Two days later, Defense Secretary Lloyd J. Austin III reversed her decision.
Now, a judge must decide whether Mr. Austin acted properly when he overruled her. The judge has agreed to hear arguments on the question this month.
Mr. Austin also took away Ms. Escallier’s authority to reach plea agreements in the cases against the men accused of helping to plan and finance the hijackings that killed nearly 3,000 people on Sept. 11, 2001. She continues in her job in a nondescript office building in Alexandria, Va., with the same title but diminished responsibility.
Those who work in her offices have little to say about their boss, whose role is part judicial, part administrative. Some described her as aloof and humorless. She declined a request for an interview.
But U.S. military officers who worked with her say she was an outstanding military lawyer who steadily rose through the ranks from one demanding job to another in a career that took her to the Middle East and Africa.
Maj. Gen. John D. Altenburg Jr., who became the first overseer of the war court in 2003 after he retired, said Ms. Escallier held “some of the hardest jobs the Army ever had for lawyers and came out the other end as a one-star,” a brigadier general.
One of her last public remarks comes from a video in 2019 when, as a brigadier general, she advised junior military lawyers that their job may require telling a commander that a course of action is forbidden or unlawful.
“You just have to stand strong and say, ‘Here’s what the law is,’” she said.
California Upbringing
Ms. Escallier grew up in the small town of Los Banos in central California, the daughter of a pharmacist and a real estate agent. She made the local newspaper for being on the high school honor roll in 1980, then again for obtaining a scholarship to attend the University of California at Berkeley.
Another article recounted that after her freshman year in college, Ms. Escallier and a friend visited Los Angeles and landed stints as extras in a bar scene on “Days of Our Lives,” a soap opera that premiered the week she was born.
She went to Berkeley to study literature and to become a teacher, the scholarship announcement said. But by her junior year she had joined the Army R.O.T.C. Within a few years she discovered an Army program that sent promising officers to law school, in her case at Ohio State University.
Early in her career she was among the first female paratroopers assigned to an infantry unit, the 82nd Airborne Division’s Third Brigade Combat Team, said Col. Candice E. Frost, who was the first, in 1999.
“She took the hardest assignments in the Army over and over and over again,” said Colonel Frost, who was an intelligence officer and is now retired. “I can’t think of a JAG that has been in more combat situations than her,” she said, referring to judge advocate generals.
Physical endurance also gained her respect in the Army, at a time when women were excluded from combat roles.
Ms. Escallier took up skydiving for sport in North Carolina with a rising star, David H. Petraeus, becoming “one of Petraeus’s jump buddies,” a former boss said. That was long before the future General Petraeus took command of the 101st Airborne and she traveled as a member of the legal team advising his “Screaming Eagles” in the 2003 invasion of Iraq.
“She struck me as a very impressive legal counsel and an equally impressive soldier and paratrooper,” General Petraeus said by email.
Battlefield Lawyering
On Sept. 11, 2001, Ms. Escallier was a major attending advance training at the JAG school in Charlottesville, Va., when word reached the classroom that America was under attack. The students were in their everyday uniforms, office attire, but would soon don combat uniforms, even when far from the battlefield.
In March 2003, on the eve of the invasion of Iraq, she was working the overnight shift at a desert encampment in Kuwait for Col. Richard O. Hatch, the senior lawyer at the 101st, when someone rolled three grenades into a tent there, killing two officers and wounding 14 troops.
First reports suggested it was an enemy attack. As it became clear that it was the work of a fellow soldier, a “fragging,” she summoned Army investigators to gather evidence for what became the court-martial of Sgt. Hasan K. Akbar.
Ms. Escallier recalled the episode in an oral history on the Iraq war compiled by the Army in 2006, referring to Sergeant Akbar as a “rat bastard.” Today, Sergeant Akbar sits on death row at Fort Leavenworth, Kan., his appeals exhausted in a military justice system that has not executed one of its own since 1961.
During the Iraq war, she handled a variety of legal issues, from reviewing proposed bomb targets to looking for signs of war crimes at a Saddam Hussein-era prison to working with local leaders.
Ms. Escallier was “gung-ho in everything that I had dealing with her,” Colonel Hatch recalled. “She was very professional but very much into all things Army.”
Rewarding Career
“If you look at her career path,” Colonel Hatch said, “she punched all the right tickets for a challenging career.”
Ms. Escallier did time as a prosecutor, as a court-martial judge and at an appeals court. There was also office work, as the commander of the U.S. Army Legal Services Agency and as the senior staff lawyer at the 101st Airborne and at III Corps — the role that she had said sometimes required a lawyer to “stand strong” and tell the commander that something was not allowed.
Colonel Frost called her “incredibly methodical” in her analysis and decision making, “fearless but not reckless,” conscious about the safety of her troops, and a tough competitor in sports, which was expected of women. “Physically you had to consistently not only hang with the rest of the pack, but you couldn’t let them see you sweat,” she said.
So it came as a surprise to colleagues when one of their fittest soldiers had a stroke. More senior jobs went to other Army lawyers while she was recovering, essentially forcing her to retire in 2021 in the military’s up-or-out system.
She returned to California, helped care for a parent, sat on a board for a proposed memorial for female combat veterans and volunteered in nature conservancy projects in Yosemite National Park before she got the call to return to the Pentagon.
Quiet Return
The role of the convening authority is unique to the military. In the court-martial system, that person typically decides whether a soldier should be charged and with what crimes, what resources are necessary for the trial and, once convicted, whether a sentence should be reduced.
In her appointment letter on Aug. 21, 2023, Mr. Austin authorized her to “exercise her independent legal discretion with regard to judicial acts and other duties of the convening authority.”
The top lawyer in the Army, Lt. Gen. Stuart W. Risch, issued a special announcement that one of their own was returning to service. He described the core duty of the job in the first paragraph: “Brigadier General (retired) Escallier will oversee the Guantánamo war court, a position that includes approving plea deals and deciding whether prosecutors can seek death sentences.”
He noted that she had a record of advising “on the most difficult of decisions in the most difficult of times, holding the rule of law in the highest regard.”
The Sept. 11 case was more than a decade into pretrial proceedings when Ms. Escallier started on the job. Prosecutors were also more than a year into plea negotiations, which her predecessor had authorized in March 2022. The Biden White House had been asked if it would sign off on certain conditions of their lifetime confinement, and had declined.
General Altenburg, who helped set up the commissions, said that as early as 2004, Pentagon officials had discussed whether to have a death penalty at the war court. Officials knew there would be opposition to not having capital punishment as the maximum penalty in the war crimes cases. But they also discussed the complex resources required to pursue a capital case and whether putting the prisoners to death would turn them into martyrs.
A Question of Legacy
The plea agreement stunned and divided some Sept. 11 families, and many members of the public. But others who had carefully followed the proceedings were less surprised. The case had bogged down in the new, untested war court, largely because of the decision to seek the death penalty against prisoners who had been tortured by the C.I.A.
Members of Congress responded with anger. Then the House Armed Services Committee ordered the White House to turn over relevant documents, and the House Oversight Committee opened an investigation.
In overruling Ms. Escallier, Mr. Austin left her with oversight of other aspects of the Sept. 11 case, including whether to fund experts for the legal team of the defendant, Ramzi bin al-Shibh, who was found not competent to stand trial.
She still has the authority to approve plea agreements in the other two active prosecutions, for Al Qaeda’s bombing of the Navy destroyer Cole off Yemen in October 2000 and an affiliate terrorist organization’s attacks on a nightclub district in Bali, Indonesia, in 2002.
Yet to be decided is whether Mr. Austin acted too late, and whether the deals she signed are still valid. If so, Ms. Escallier would go down in history as the Pentagon official who signed away the possibility of an eventual death penalty sentence, and the possibility of years of appeals.
In exchange, she and prosecutors settled for “judicial certainty,” detailed guilty pleas with life sentences that cannot be appealed.
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