Legal Commentary

Guilty Pleas By Gitmo Detainees In Capital Cases

By Big Tent Democrat

An interesting paradox is presented by this story:

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. . . . 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.

So by placing people like Khalid Sheik Mohammed in a military commission system, the Bush Administration (and now by extension, the Obama Administration) has inadvertently forced the issue of torture into the equation. Of course, in civil courts, KSM and others like him could plead guilty (in spite of the torture committed upon them) and the issue of torture would not require the airing military commissions would require. As an ACLU spokesman puts it:

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?”

I think we do have such an interest. I do not believe putting on a trial when a person wishes to plead guilty is the way to get that information. These detainees should have the right to plead guilty. They have no duty to allow us to inform ourselves about the atrocities committed in our names. Congress can do that. A Truth Commission can do that. The Justice Department can do that. It is not KSM and his fellow terrorists' responsibility to facilitate our own examination of our own monstrous actions.

Whether KSM and his cohorts feel remorse for their crimes against humanity is not for us to judge. They want to plead guilty. No more need be said.

This paradox provides one more reason to eliminate these ill advised and constitutionally questionable military commissions. Why Obama is reluctant to do so is hard to understand.

Speaking for me only

Full post as published by TalkLeft on June 06, 2009 (boomark / email).