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

[Suzanne de Kuyper]

The ultimate Constitutional law professor has spoken, rejecting law by
remaking it to fit lawlessness.
Suzanne

On Sat, Jun 6, 2009 at 1:27 PM, Yoshie Furuhashi <
critical.montages at gmail.com> wrote:

> <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?”
>
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