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Cross posted from The Dream Antilles and docuDharma

According to the New York Times, the Obama Administration may modify the military commission rules to permit require have Gitmo prisoners plead guilty and be executed:

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.

How, you might want to know, 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? Doesn't dispensing with the requirement of any proof after years and years of confinement make the eventual killing of these prisoners even more egregious?

Think about it. The prisoners in Gitmo have been held for about seven years.  They have not received a speedy trial.  In fact, many haven't received any process at all.  And while they've been confined there's been a worldwide uproar over their detention without trial and the conditions of confinement and their being tortured and the potential show trials conducted by military commissions and the utter lack of due process in these show trials and their having no real access to US Courts.  These are all obvious problems.  And now, added to these problems and not resolving them in any regard, we have the distinct possibility that prisoners will "volunteer" for death by pleading guilty, and we will have no way at all of knowing either that they committed the acts for which they will be killed or that their confessions were truthful or even that their guilty pleas are minimally voluntary.  Hence, the headline: guilty pleas coerced by torture, long term isolation, and desperation, will cover up the torture and the conditions of confinement. The prisoners, we are told, want to be martyrs, and they will be.  The US, we are told, doesn't want to discuss their torture or how they got to Gitmo or what it's been like for them in confinement, and the US won't have to.  It's a win-win.

Can someone who is held for seven years without procedural due process, who is tortured, who is in harsh conditions of confinement enter a knowing, voluntary, intelligent guilty plea?  Theoretically, I suppose it is possible.  But it's going to take a lot more than the accused's answering "yes" to a standard Rule 11 allocution (what you have to say "yes" to to enter a guilty plea in a federal criminal case) to convince me or anyone else who is watching that the plea is voluntary in any conventional sense.  That's why in the Military Justice System, you cannot plead guilty to a capital crime. As the Times tells us, "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."

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... snip

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.

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.

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.

Originally posted to davidseth on Sat Jun 06, 2009 at 07:32 AM PDT.

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