Plea Deals in Federal Court Mooted for Guantánamo Prisoners in Next Year’s National Defense Authorization Act

21.5.16

A campaigner wearing a President Obama mask calls for the closure of Guantanamo in London (Photo: AP/Kirsty Wigglesworth).I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Last week there was an interesting development in relation to President Obama’s hopes of closing Guantánamo, when the Senate Armed Services Committee announced that it had included a provision in its version of next year’s National Defense Authorization Act, which, as Charlie Savage reported for the New York Times, would allow Guantánamo prisoners to “plead guilty to criminal charges in civilian court via video teleconference,” and would also allow them to be “transferred to other countries to serve their sentences.”

Last November, a number of lawyers sent a letter to the Justice Department, which the New York Times discussed here, in which they “express[ed] interest in exploring plea deals by video teleconference — but only in civilian court, not military commissions.”

Lawyers for six prisoners said that they “may wish” to negotiate plea deals — Abu Zubaydah, the “high-value detainee” for whom the CIA’s torture program was developed, Abu Faraj al-Libi, another “high-value detainee,” Sanad al-Kazimi, a Yemeni who recently went before a Periodic Review Board, Abd al-Rahim Ghulam Rabbani, a Pakistani, Abdul Latif Nasser, the last Moroccan in the prison, and Soufian Barhoumi (aka Sufyian Barhoumi), an Algerian whose PRB is taking place on May 24. As Savage described it, the letter also “said several others are interested, and that Majid Khan, who has pleaded guilty in the [military] commissions system but has not been sentenced, would like to plead again, in civilian court.”

Katya Jestin and Anthony Barkow, lawyers for Majid Khan, noted, “A reduction of this size to the detainee population at Guantánamo would significantly aid the administration’s efforts to close the prison and may help facilitate the disposition of other detainees.”

In November, writing about Abu Zubaydah, Charlie Savage described how he “was initially portrayed after his 2002 capture as a senior Al-Qaeda leader, but his importance and role were later downgraded.” He also explained how Joe Margulies, one of his lawyers, “confirmed his interest in a plea deal but declined to say what length of sentence he would accept.” Margulies said, “We are happy to engage in negotiations with any prosecutor who would entertain a fair negotiation based on his genuine, not mythologized, culpability.”

Speaking about last week’s announcement by the Senate Armed Services Committee, Wells Dixon, a lawyer at the Center for Constitutional Rights, said, “Allowing a detainee to plead guilty and cooperate with the US government is a no-brainer. This provision should draw broad bipartisan support. It is an important step toward cleaning up the mess that exists at Guantánamo, and reducing the so-called irreducible minimum who remain in limbo.”

Examining the plea deal proposal, Charlie Savage also noted that federal courts offer advantages for prisoners “seeking a defined sentence and an exit from the wartime prison,” explaining that prisoners “who participated in a terrorist group but were not linked to any specific attack could plead guilty to several offenses under domestic criminal law, including conspiracy and providing material support to terrorism” — extremely important after appeals court judges ruled, in memorable and influential rulings in 2012 and 2013, that the offenses mentioned above cannot be tried in military commission trials because they are not war crimes.

As Charlie Savage also noted, unlike military commissions, federal courts “can count previous time in custody toward any sentence.”

The bill put forward by the Senate Armed Services Committee now goes to the full Senate, where it may secure Republican support, if the comments of Sen. Lindsey Graham, a longtime opponent of Guantánamo’s closure, are anything to go by. The Republican Senator for South Carolina, who is a member of the committee, said, as Charlie Savage described it, that “he supported an ‘all-of-the-above approach’ that would give the government a ‘criminal disposition path’ for rank-and-file detainees — especially if it did not involve bringing them to a courthouse on domestic soil, something he said could make the courthouse a target.” Sen. Graham emphasized, however,  that he still thought it “made more sense” to use military commissions for what Savage described as “contested trials of high-value terrorists.”

Unfortunately, the Senate Armed Services Committee’s bill does nothing to allow President Obama to close Guantánamo before he leaves office — not just implicitly, because the plea deal plan wouldn’t kick in until next year, but also explicitly, because it “would largely extend an existing ban” on bringing prisoners to the US mainland, despite President Obama asking Congress to lift that ban, as part of a plan for closing the prison, unveiled early this year, which also involves an intention to bring to the US mainland a small number of prisoners the government wants neither to put on trial nor release.

However, the bill does, for the first time, “allow the temporary transfer” of prisoners to the US mainland “for emergency medical treatment,” because the prisoners are getting older and more ill, and Guantánamo itself “has only limited medical equipment and capabilities.”

80 men are still held at Guantánamo. Ten have been charged — or already  convicted — in the military commission trial system, and 28 have been recommended for transfer. Charlie Savage noted that the administration’s inter-agency process approved transfer deals for 14 of the 28 men approved for release “several weeks ago,” according to officials, although he added that defense secretary Ashton Carter “has not yet notified Congress,” which he must do at least 30 days before any prisoner leaves.

While the prospect of Guantánamo’s population being reduced to 66 is heartening news indeed, this still leaves 42 men facing Periodic Review Boards, and perhaps, in some cases, the plea deals proposed by the Senate committee. I hope that Congress will agree to the proposal, but it would be better, of course, if lawmakers accepted President Obama’s plan and allowed him to close the prison before he leaves office.

Note: For further discussion of the NDAA proposals, see Steve Vladeck’s analysis for Just Security, and Lyle Denniston’s analysis for Constitution Daily.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose debut album, ‘Love and War,’ is available for download or on CD via Bandcamp — also see here). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, and The Complete Guantánamo Files, an ongoing, 70-part, million-word series drawing on files released by WikiLeaks in April 2011. Also see the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

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12 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    In my latest article, I look at the news that, in its version of next year’s National Defense Authorization Act (NDAA), the Senate Armed Services Committee will allow some ‪#‎Guantanamo‬ prisoners to make plea deals in federal court and serve sentences abroad, and will also allow emergency medical treatment for others on the US mainland. The changes need to be agreed by the Senate, and they also suggest that President Obama will not be able to close Guantanamo before he leaves office – which may, sadly, be true, although I still have slim hopes that he can fulfill his promise. Cross-posted from http://www.closeguantanamo.org.

  2. Andy Worthington says...

    Rose Ann Bellotti wrote:

    The American Congress has little to no soul….or priniciples. Once Gitmo was no longer an issue to campaign against, Democrats adopted the same deplorable attitudes about it that Republicans have always held. Shameful.

  3. Andy Worthington says...

    Yes, I think that’s an accurate assessment, Rose. Some Democrats took a position against Bush (but only in his 2nd term), and then lost interest when Obama became president, and the Republicans started playing a “tough on terror” card that they were too cowardly to argue against.

  4. Andy Worthington says...

    Bernadette Langbein wrote:

    Our Colorado senators have succumbed to the hysteria.

  5. Andy Worthington says...

    Rose Ann Bellotti wrote:

    Even Barbara Boxer has, and she is one of the most liberal, open minded person in Congress. To deny these men even emergency medical treatment on the “mainland” after the way they’ve already been treated is criminal.

  6. Andy Worthington says...

    Yes, a plague of NIMBYism has swept through Congress when it comes to holding Guantanamo prisoners on the US mainland, Bernadette. It may play well domestically, but it looks pathetic internationally. The big tough Americans who are so scared of the Guantanamo prisoners – who’ve persistently been portrayed as some kind of superhuman terrorists – that they won’t even trust the security of the domestic prison system.

  7. Andy Worthington says...

    Rose Ann Bellotti wrote:

    Everytime an event happens, going back to the failed Christmas Day bombing of a plane over Detriot, another key to the cages in Gitmo gets forever lost.

  8. Andy Worthington says...

    That’s well put, Rose. The hysterical response to that failed plot certainly marked a major downturn in the fortunes of the Guantanamo prisoners. And yet I recall when politicians were far more robust, and wouldn’t even have dignified a failed plot with any kind of weak and cowardly response. Back in those days, pre-9/11, real plots were dealt with, but it was considered demeaning and counter-productive to give the oxygen of publicity to people who were so inept that their intended attacks failed.

  9. Martin says...

    Now the Guardian is saying 22 or 23 detainees will be transferred by the end of July. Hopefully Omar Abdulayev is one of them.

    http://www.theguardian.com/us-news/2016/may/23/guantanamo-bay-detainees-release-plan-obama

  10. Andy Worthington says...

    Yes, his release is certainly long overdue, Martin. He is one of just four prisoners left out of the 126 men who were approved for immediate release by the Guantanamo Review Task Force, when its final report was published in January 2010.

  11. Thomas says...

    What about the truly innocent? Why should they have to plead guilty?

  12. Andy Worthington says...

    I’m not sure that anyone who hasn’t done anything would be put in that position, Thomas, but perhaps. However, I can certainly imagine people agreeing that they did things they didn’t do just to get out of the endless limbo of indefinite detention, even if that means serving a finite sentence elsewhere. It’s yet another reason for insisting that, when Guantanamo finally closes, there must be no resuscitation of indefinite detention without charge or trial under any circumstances, although we mustn’t forget that there are many people in influential positions in the US who want it to continue.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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