Race to Guilt in Guantánamo Threatens to Taint Justice for 9/11 Attacks

Devon Chaffee – Advocacy Counsel at Human Rights First – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, December 9, 2008: Yesterday's tumultuous military commissions proceedings in the trial of Khalid Sheikh Mohammed and four co-defendants kicked off with a bang. Within the first half-hour, Presiding Army Judge Col. Stephen Henley read aloud a joint letter submitted by the five defendants asking that all motions filed in their names be revoked and requesting the opportunity to plead guilty. They had signed the letter on November 4, 2008—the day Barack Obama was elected president—firing the starting gun in an urgent race against the clock to preserve the ability of the next administration to seek real justice in one of the most important capital cases in American history.

President-elect Obama has made his intention to close Guantánamo crystal clear. On the campaign trail and in his first post-election interview on “60 Minutes,” he repeated that closing the facility was a priority. During his campaign he also committed to opposing the Military Commissions Act, which governs the commission proceedings and which he voted against in September 2006. But if the commissions continue to rush forward, it could hamper the ability of the next administration to bring these cases to trial in ordinary federal courts and to obtain verdicts that all Americans could have confidence are fair and final.

Monday's proceedings were held in Guantánamo's "Expeditionary Legal Complex" or ELC, which, according to the testimony of Cpt. Patrick Michael McCarthy, was designed under close supervision of the commissions' Convening Authority specifically for the trial of the high-value detainees. Observers sat behind sound-proof glass, while the sound system periodically failed and the audio delay—instituted to protect classified information—grew longer and longer.

As the morning session progressed, two things became clear: 1) Judge Henley would not allow two of the defendants—Ramzi bin al Shibh and Mustafa Ahmed Adam al Hawsawi—to enter guilty pleas until they were declared competent to stand trial and 2) it is an open question whether the Military Commissions Act allows for a death penalty sentence in a case where the defendants plead guilty. In a courts-martial proceeding under the Uniform Code of Military Justice, unlike in federal criminal courts, a defendant is not permitted to plead guilty to "an offense for which the death penalty may be adjudged." The rules for guilty pleas in capital cases in the military commissions, however, remain unclear.

Nail-biting prosecutors were noticeably anxious as Mr. Mohammed and Judge Henley went back and forth about the potential death penalty limitations with Mr. Mohammed asking: "If we plea, is it true that we will not be able to be sentenced to death?" After Judge Henley said he could not answer that question, the three pro se defendants—Mr. Mohammed, Walid Muhammed Salih Mubarek bin Attash and Ali Abdul Aziz Ali—indicated that they wished to postpone their pleas, at least until their co-defendants' competency issues were resolved.

But the struggle to keep open the door to bringing these defendants to legitimate justice in our federal criminal justice system is not over. Judge Henley appears intent on pushing forward with the competency questions, denying Mr. bin al Shibh's defense counsel's motion to abate the proceedings and giving defense counsel less than 12 hours to respond whether the prosecution could produce a brief on certain evidentiary issues within 24 hours.

If the judge finds Mr. bin al Shibh and Mr. al Hawsawi competent to stand trial before January 20, then all five may again withdraw all outstanding motions and attempt to plead guilty. This would trigger an inquiry into the circumstances of their plea, which may or may not be resolved before President-elect Obama takes office.

The sense of urgency running through the prosecution team was plain. After the defendants expressed their intention to delay their guilty pleas, Judge Henley said he was inclined to hold off on briefing the death penalty issues until the competency issue was resolved. But when the chief prosecutor, Col. Robert Swann, insisted the government would have the brief ready as soon as it was needed, the judge set a submission deadline of December 21. An exacerbated CDR Suzanne Lachelier, defense counsel for Mr. bin al Shibh, on the other hand, adamantly told the commission that the discovery issues related to the competency claims could not conceivably be resolved before late January.

Allowing the discredited military commissions to move forward in the final weeks of the current administration is a mistake. President-elect Obama will need all available tools to responsibly close the detention facility. And closing the facility is critical to repairing the damage the unfair and inhumane detentions have caused to the United States’ reputation as a leader in humane treatment and due process standards. The commissions should not be rushing forward to conclude cases that could obstruct the ability of our next president to restore the moral authority of the United States and to seek real justice for those who commit crimes of terror.