[R-G] Obama to "Clear the Way for Detainees Facing the Death Penalty to Plead Guilty without a Full Trial"

[Yoshie Furuhashi]

<http://www.nytimes.com/2009/06/06/us/politics/06gitmo.html>
June 6, 2009
Obama Weighs Plan Allowing 9/11 Suspects to Plead Guilty
By WILLIAM GLABERSON

The Obama administration is considering a change in the law for the
military commissions at the prison at Guantánamo Bay, Cuba, that would
clear the way for detainees facing the death penalty to plead guilty
without a full trial.

The provision could permit military prosecutors to avoid airing the
details of brutal interrogation techniques. It could also allow the
five detainees who have been charged with the Sept. 11 attacks to
achieve their stated goal of pleading guilty to gain what they have
called martyrdom.

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.

The proposal would ease what has come to be recognized as the
government’s difficult task of prosecuting men who have confessed to
terrorism but whose cases present challenges. Much of the evidence
against the men accused in the Sept. 11 case, as well as against other
detainees, is believed to have come from confessions they gave during
intense interrogations at secret C.I.A. prisons. In any proceeding,
the reliability of those statements would be challenged, making trials
difficult and drawing new political pressure over detainee treatment.

Some experts on the commissions said such a proposal would raise new
questions about the fairness of a system that has been criticized as
permitting shortcuts to assure convictions.

David Glazier, an associate professor at Loyola Law School in Los
Angeles who has written about the commission system, said: “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.”

The draft legislation includes other changes administration officials
disclosed last month when President Obama said he would continue the
controversial military commission system with changes that would
increase detainees’ rights. It is not known whether the White House
has approved the proposed death penalty provision. A White House
spokesman declined to comment.

The provision would follow a recommendation of military prosecutors to
clarify what they view as an oversight in the 2006 law that created
the commissions. The law did not make clear if guilty pleas would be
permitted in capital cases. Federal civilian courts and courts in most
states with capital-punishment laws permit such pleas.

But American military justice law, which is the model for the military
commission rules, bars members of the armed services who are facing
capital charges from pleading guilty. 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.

During a December tribunal proceeding in Guantánamo, the five
detainees charged with coordinating the Sept. 11 attacks said they
wanted to plead guilty. Military prosecutors argued that they should
be permitted to do so. Defense lawyers argued that tribunals should
follow American military law and bar the guilty pleas. The military
judge has not yet made a decision.

Lawyers who were asked about the administration’s proposed change in
recent days said it appeared to be intended for the Sept. 11 case.

“They are trying to give the 9/11 guys what they want: let them plead
guilty and get the death penalty and not have to have a trial,” said
Maj. David J. R. Frakt of the Air Force, a Guantánamo defense lawyer.

The military commission system has been effectively halted since
January while the administration considers its options. The only death
penalty case now before a military judge is the case against the five
detainees charged as the planners of the Sept. 11 attack, including
the self-proclaimed mastermind, Khalid Shaikh Mohammed.

Cmdr. Suzanne M. Lachelier, a Navy lawyer for one of the detainees in
the Sept. 11 case, Ramzi Bin al-Shibh, said of the Obama
administration, “They’re encouraging martyrdom.”

The administration has not announced whether it will continue with the
Sept. 11 case in the military commissions or charge some of the men in
federal court. 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, a
veteran jihad fighter who was known as Khallad.

Dean Boyd, a Justice Department spokesman, said no decisions had been
made about where the men would be prosecuted. Mr. Boyd said it was
premature to discuss any legislative proposals. But, he said, “As the
president has said, the administration is working diligently to
identify possible legislative amendments to the current military
commission system.”

A bill presented to Congress seeking changes in the commissions could
open a new debate about the system for trying terrorism suspects. The
administration is already in a standoff with Congress over financing
for Mr. Obama’s plan to close the Guantánamo prison by January.

In the Sept. 11 case, the five detainees have seemed to be daring the
United States to put them to death, expressing pride in their acts of
what they call jihad against America, which they described as “the
terrorist country,” and its allies, “the filthy Jews.”

In December, the military judge, Col. Stephen R. Henley, ordered
written arguments from lawyers. “Can an accused plead guilty,” Colonel
Henley asked, “to a capital offense at a military commission?”

The military prosecutors argued that Congress had a “clear intent” to
permit guilty pleas in death penalty cases at Guantánamo. They note
that a detainee could be sentenced to death only after a unanimous
vote by a panel of military officers.

Critics of the military commission system say that the battles over
its fairness show that any execution would bring new scrutiny around
the world. They say the prosecutors should be required to present
evidence proving that anyone who is to be executed was actually guilty
of the crimes charged.

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, said Denny LeBoeuf, an American Civil Liberties Union
lawyer who works on Guantánamo death penalty issues.

“Don’t we have an interest as a society,” Ms. LeBoeuf asked, “in a
trial that examines the evidence and provides some reliable picture of
what went on?”