In a leak that seems designed to gauge public opinion — and that of lawyers and other relevant parties around the world — anonymous officials in the Obama administration have told the New York Times about a proposal, in draft legislation to be submitted to Congress, which, as the Times put it, “would clear the way for detainees facing the death penalty [in Guantánamo] to plead guilty without a full trial.”
The five alleged co-conspirators in the 9/11 attacks. From the top: Khalid Sheikh Mohammed (KSM), Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash.
Such a statement can only set alarm bells ringing, of course, as it clearly refers to the five alleged co-conspirators in the 9/11 attacks — Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash — and it indicates that, in order to avoid having to disclose distressing details of the torture to which these men were subjected, during their long years in secret CIA prisons, the Obama administration is wondering if allowing them to fulfill their stated aim of pleading guilty and becoming martyrs might be an effective way to dispose of what is probably the thorniest problem inherited from the government of George W. Bush.
It’s tempting to take this view, of course, because the Obama administration has already demonstrated its unwillingness to thoroughly repudiate its predecessor’s brutally innovative approach to detention and trials in terrorist cases; firstly by announcing its intention to revive the system of trials by Military Commission (the much-criticized “terror courts,” conceived by Dick Cheney and his legal counsel David Addington, which were mired in incompetence and corruption throughout their seven-year history), and secondly by proposing to push for legislation authorizing the use of “preventive detention” for 50 to 100 of the remaining 239 prisoners. As I explained in an article three weeks ago, “Fundamentally, Guantánamo is a prison that was founded on the presumption that the Bush administration’s “new paradigm” [in the “War on Terror”] justified “preventive detention” for life,” and “to even entertain the prospect that a third category of justice (beyond guilt and innocence) can be conjured out of thin air without fatally undermining the principles on which the United States was founded is to enter perilous territory indeed.”
These are not the only proposals put forward by the administration to facilitate the closure of Guantánamo by January 2010, as Obama promised on taking office. In fact, one prisoner — Ahmed Khalfan Ghailani, allegedly involved in the African embassy bombings in 1998 — has already been put forward for trial in a federal court in New York, demonstrating that the administration is capable of trusting the federal courts to successfully prosecute cases related to terrorism, as they have done on over a hundred occasions in the last 15 years (PDF). As I also explained in my article three weeks ago, I regarded the decision to charge Ghailani in a federal court “as a clear indication that trials in the US court system are the only legitimate way forward, and that setting up a two-tier system — of federal courts on the one hand, and Military Commissions on the other — appears to be nothing but a recipe for disaster.”
However, the leaked proposal to allow guilty pleas that could lead to swift executions has been raised specifically in connection with the Military Commissions, and it should be noted that, although it appears to be designed primarily to circumvent all mention of torture while reaching a verdict that the government thinks is appropriate, it is not quite as cynical as this analysis suggests.
Essentially, the question of whether guilty pleas are acceptable in the Commissions was raised last year, during pre-trial hearings for the alleged 9/11 co-conspirators, when, as the Times described it, military prosecutors sought “to clarify what they view[ed] as an oversight in the 2006 law that created the commissions.” This oversight — based, it should be noted, on the Bush administration’s determination to fashion a legal system that was based neither on the federal court system nor on precedents in the military’s own judicial system — centered on the fact that the Military Commissions Act of 2006 “did not make clear if guilty pleas would be permitted in capital cases,” and the problem is that federal courts permit guilty pleas in capital cases, but the military’s own judicial system, on which the military commissions are modeled, do not. As the Times explained, “Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.”
The five alleged co-conspirators in the 9/11 attacks are shown this sketch by courtroom artist Janet Hamlin at their arraignment in Guantánamo on June 5, 2008. They are, from top to bottom, Khalid Sheikh Mohammed, Walid bin Attash, Ramzi bin al-Shibh, Ali Abdul Aziz Ali, and Mustafa al-Hawsawi.
In December, when Khalid Sheikh Mohammed and his co-defendants announced that they wanted to plead guilty, all parties discovered that the Military Commissions Act had failed to provide clear rules determining the appropriate response. Military prosecutors argued that the men should be allowed to make a guilty plea, because Congress had a “clear intent” to allow them to do so, while their defense teams countered by stating that the trial should follow US military law, and that therefore guilty pleas were not allowed.
In response to these conflicting opinions, the judge, Col. Stephen Henley, pointedly asked, “Can an accused plead guilty to a capital offense at a military commission?” and ordered both sides to provide written submissions, but, as the Times noted, he has not yet made a decision about how to proceed.
However, while this provides a context for the Obama administration’s deliberations, lawyers are unimpressed by the nuances, and have seized on the leaked proposal as an indication that the administration is only concerned with securing guilty verdicts via the least problematical route. Denny LeBoeuf, a lawyer for the ACLU who works on issues relating to Guantánamo and the death penalty, told the Times that “Requiring prosecutors to reveal what they know about detainees and how they know it would cast light both on the interrogation techniques used against the men and the acts of terrorism for which they are facing death,” and asked, “Don’t we have an interest as a society in a trial that examines the evidence and provides some reliable picture of what went on?” and
David Glazier, a law professor in Los Angeles, who has studied the commissions, explained, “This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed. But I think it’s going to lack international credibility.”
Both made valid points about openness and international credibility. As David Seth asked in a Daily Kos article on Saturday, “How does dispensing with a full, albeit difficult trial for prosecutors and avoiding inquiries about extensive torture benefit the detainees? How does it assure that their guilty pleas are knowing, intelligent and voluntary?” Moreover, as the website Moon of Alabama explained, “military law forbids death penalties based solely on guilty pleas for two good reasons: the guilty plea could be coerced, [and it] could be a way for people who are not guilty to commit a form of suicide” (as happened in the case of the Beatrice Six, four of whom “falsely confessed in a rape and murder case and were later exonerated through DNA analysis”).
These fears are especially true in the cases of two of the men. Lawyers for Ramzi bin al-Shibh have long claimed that they have doubts about his mental health. Noting, during a pre-trial hearing last September, that his medications include “a psychotropic drug prescribed to persons with schizophrenia,” his lawyers stated that he “might not be competent to stand trial or able to participate in his own defense,” and lawyers for Mustafa al-Hawsawi have claimed that his involvement in the rush to martyrdom is not voluntary because he has been bullied by Mohammed and at least two other co-defendants.
In addition, David Glazier’s comments about “international credibility” only scratch the surface of what would undoubtedly be ferocious opposition to a trial that was perceived as providing a short-cut to convenient executions — even, for a moment, leaving aside other complaints that, if the men are guilty, then it would be far better to imprison them for life than to kill them, which, if their statements are to be believed, is the twisted “martyrdom” they seek.
However, what is most disappointing about the leaked proposal is a suggestion in the Times article that what is motivating the administration more than any other factor is the fear that establishing a case against these men in a conventional trial in a federal court might result in the Justice Department’s inability to mount an effective case against one of them. As the Times described it, “Officials involved in the process said that lawyers reviewing the case have said that federal-court charges against four of the men might be possible, but that the evidence might be too weak for a federal court case against one of the five, Walid Bin Attash.”
As David Seth explained,
Usually, when “the evidence might be too weak for a federal court case” the prosecution recognizes that it cannot meet its burden of proof and it dismisses the charges. If the prosecution doesn’t dismiss the charges, it’s up to a jury or a judge to find the accused not guilty. And then? And then the accused goes free. Not so in Gitmo. Evidently in Gitmo, somebody who might be released because the case is “too weak for a federal court case” instead gets to plead guilty and be executed.
Seth added, “And to think that I was worried that those with weak cases would be ‘preventively detained’ forever and ever. Even that would be better than coerced guilty pleas followed by execution.”
Sadly, I think that this analysis is accurate, and I can only hope that the leaking of the proposal — which has already provided yet another example of the administration’s inability to act decisively to undo the crimes of the Bush years — is intended to test the waters, and that the feedback will so overwhelmingly negative that the government will accept that, in cleaning up its inherited mess, justice must not only be pursued without cutting corners, but must also be seen to be done, and must also involve an acceptance that the men it is dealing with are criminals — not “warriors” who stand somehow outside the law — and that, as in any criminal case, it is possible that not every prosecution will be successful.
If senior officials need any further reminders about the importance of operating within the bounds of the law, they should recall that one of the reasons that Col. Morris Davis, the former chief prosecutor of the Commissions, resigned in October 2007 was the following exchange with William J. Haynes II, the Pentagon’s chief counsel, which took place in August 2005.
According to Col. Davis, Haynes “said these trials will be the Nuremberg of our time ” — a reference to the 1945 trials of Nazi leaders, “considered the model of procedural rights in the prosecution of war crimes,” as an article in the Nation described them. Col. Davis replied that he had noted that there had been some acquittals at Nuremberg, which had “lent great credibility to the proceedings,” and added, “I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process. At which point, his eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.
As published exclusively on the website of the Future of Freedom Foundation.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
For this one occasion, I’ll drop back and say this leak is probably more about “trial-ballooning” than intended policy: the Obama Admin. wants to see what the reaction is going to be to it. Many human rights groups and my own: not happy.
It seems that the 9-11 masterminds have had a number of privileges denied to ordinary non-9-11-conspirators at GTMO, such as being allowed to commune with other human beings, even if only each other… this, of course, is in exchange for they and the Gov’t giving each other what they want most: martyrdom, in exchange for silence over treatment in CIA and military custody, and as Andy notes, to allow the commissions to do what no military court-martial could do, and sentence someone to death without a full trial.
Thing is, this same exact charade could be played out in federal court… a federal judge would doubtless order competency hearings on defendants’ ability to kill themselves in this way, but there is little reason to think that, if Padilla and al-Marri were sufficiently competent to avoid talking about their torture, why these guys wouldn’t be.
In that sense, what we have is an extraordinarily cynical move by the Obama Admin.– the fear that they may draw a federal judge who won’t rubber stamp the express train to lethal injection. For God’s sake: the terrorism conviction rate in federal court is around 100%. What the hell are these guys afraid of?
The Obama Admin., as this was a leak rather than an announcement, has “credible deniability;” it would be well-advised to use it in this case. Otherwise, the Obama Admin. is behaving simply “as bad or worse” compared to its predecessor… that is to say… not good.
[...] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 8 June [...]
Andy and “Dog”,
I can’t say I agree with you that this is a “trial balloon” or a “testing of the waters.” From the NYT article on the leak:
“The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy. People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.”
Why the restrictions requiring secrecy? This seems to be more than a trial balloon. The “task force on detention” is led by deputy chief of staff in the National Security Division of the Department of Justice (or was in the Bush administration), Brad Wiegmann.
So, this is not an anonymous leaking, really. We are hearing that this is the task force recommendation, and the details are in secrecy delivered to Gates.
Set up the tumbrils and the guillotine. Each new administration is made to pay its blood price to be part of the ruling elite, and the time for Obama has come.
I’ll be happy to be proven wrong, and will eat my crow with a smile.
Good to hear from you. I must say that it’s not often that the “Dog” is outflanked on suspicions regarding the motives of the Obama administration, but this is certainly one of those occasions.
I tend to think that it’s still one of several options being put forward — and that it addresses valid questions about the Commissions that were raised before Obama froze all proceedings for four months — but who knows?
What I do know is that it shouldn’t have come to this, and, as TD says, “the terrorism conviction rate in federal court is around 100%. What the hell are these guys afraid of?”
A reader called t.m. wrote a comment on the following article:
I then replied, as a thank-you for the message, and received the following reply, which I’m posting here not because it specifically refers to this article, but because this is probably the most likely place for it to be read at present:
Thanks. I’m a Finn living in the US at the moment, and I am getting more and more concerned about the tone of the public debate here, as it appears to me that the election of Obama has effectively muted the opposition to US military operations.
I am trying to contact Finnish politicians, since Finland has sent a small force of “peace”keepers to Afghanistan, to ask how Finland can take part in an operation that has such a large civilian death toll and keeps prisoners in Bagram without legal recourse. Ironically, Finland was even helping Afghanistan build women’s prisons, which seems like a strange priority for foreign aid?? Unfortunately our foreign minister seems to be starstruck by Hillary Clinton after their recent meeting about Afghanistan, so it’s not likely that this would lead anywhere.
This was my reply:
Great to hear from you. I suppose we had plenty of warning about further military operations, as Obama promised to get troops out of Iraq but also promised to step up operations in Afghanistan. At the time, I hoped that wiser heads might prevail over Afghanistan, but, of course, that doesn’t seem to be happening.
Interesting that the “Obama effect” also applies to Hillary Clinton — at least in the case of Finland’s foreign minister. I have great difficulties understanding how the UK can justify remaining in Afghanistan, losing soldiers in a seemingly endless occupation that has no purpose (and again, wiser heads have been talking about the need to sit down and talk with the Taliban for several years).
I also know that at least some in the UK army have a problem with Bagram. Last year I briefly met a former British officer who told me that, when British soldiers captured prisoners, they were in an insoluble quandary, as they had grave doubts about either the Americans’ or the Afghans’ willingness or ability to hold prisoners according to the Geneva Conventions.
What a sad state of affairs!
Oh, and for more on Jeff Kaye’s take on the story above — and ABC News’ interview with released prisoner Lakhdar Boumediene, see:
It’s hard to conceive of a more dispiriting post. If this is the best answer the administration can offer, it is asking the wrong question.
I think that’s absolutely correct, Frances. The administration is asking completely the wrong question, and needs to be aware that we can discern hypocrisy, especially when one “high-value detainee,” Ahmed Khalfan Ghailani, has already been put forward for a trial in a federal court in New York:
More on this story soon.
And how are we to also weigh the many “mistakes” related to this Admin’s “choices” of
McChrystal (go one or two down on http://www.oneheartforpeace.blogspot.com) for Afghanistan, Philip Mudd who (perhaps due to many concerns such as our own) pulled himself out – all the while with this current Admin stating something about Mudd having Obama’s full support. Is somone keeping track in case needed for reference? For an interesting take on those who watch/read Bill Moyers’ Journal – can still do so online or read transcript. Go see the recent poll there after Scahill Interview – he’s the guy who has written perhaps the most on Blackwater and writes on our same concerns for The Nation magazine. 84 % agree with Scahill on Moyers’ poll. So how to get all these folk together on one page? What about interviewing him, TD?
I’d like to see more discussion or refer me to some items please which look at why even in these tricky cases where all vengeance appears justified & the admitted guilty want – the death penalty may prove counter-productive since it may only feeds the soul that drives unconscionable martyrdom..and those who want to follow them.
[...] And to think: this mangy little whine is only the excuse. (See also – ooh, hello if you’ve read this far; damn good of you – Andy Worthington.) [...]
Connie Nash: This may not be specifically what you’re looking for, but it’s relevant background to the point that the Talking Dog mentioned in his comment: The Guantanamo authorities’ outrageous and obvious manipulation of the prisoners at last December’s arraignment, allowing Khaled Sheikh Mohammed to intimidate four other prisoners into making guilty pleas and shedding their lawyers by giving them unprecedented opportunities to be together.
This is a vivid account by someone observing the proceedings that day.
Sorry, my memory isn’t trustworthy. The arraignment in question was last June. I think the Bush administration’s hope was that they’d have guilty pleas and executions to use as campaign props in the fall.
Obama may be aiming for the midterm elections…
You think I’m being too cynical? Nothing’s beyond them.
[...] to the rule of law, the New York Times revealed that a Justice Department task force, looking into the proposed trial of five other “high-value detainees” (including Khalid Sheikh Mohammed), who are accused of [...]
[...] Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July [...]
Obama: Just like Bush but less so. He gave up the opportunity to attack Bush’s legacy, and now he is just hoping it will go away quietly.
Why is it that in the US the Democrats act like sheep and the Republicans act like bull dogs? Bush/Cheney had a (bad) vision, and they went for it, no vacillating.
Thanks for the succinct analysis of what’s wrong with US politics today. I regularly find myself wondering why Democrats in general are so sheep-like, while so many Republicans obviously wake up every day looking for a fight, and you’re spot-on about Obama’s inability to confront Bush’s horrendous legacy.
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