Legal Commentary

Another Look at Detainee Guilty Pleas

By TChris

Allowing Guantanamo detainees to plead guilty to capital offenses related to the 9/11 attacks (an opportunity they do not clearly have in the military commission system) would sidestep the dicey issue of proving their guilt without relying on confessions that were coerced by torture. BTD makes the point that detainees who want to plead guilty should not be put on trial against their will simply to expose the details of their interrogations. That's true, but if the guilty pleas are accepted in a revamped military commission system (a proposal an administration task force has reportedly submitted to Secretary of Defense Robert Gates), detainees who are not actually guilty might be convicted and executed.

The detainees who want to plead guilty are apparently motivated by the allure of martyrdom. The desire to be a martyr (particularly after a prolonged and isolated incarceration) might convince a detainee to plead guilty despite his actual innocence. An innocent detainee shouldn't be executed even if that's his wish. [more ...]

There are a couple of ways around this problem. As BTD notes, federal prosecutions in federal courts would give the detainees the option of pleading guilty. In federal court, the presiding judge would not be permitted to accept the guilty plea unless the government could establish a factual basis for the charged offense. In other words, while there would be no trial, the judge would still be required to decide whether the government has sufficient evidence of guilt to support a conviction. Upon the government's proffer of that evidence and the defendant's admission (in open court, free from the coercive effects of torture) that the evidence is accurate, the detainees could plead guilty and the public could be assured that they actually are guilty. In BTD's words, eliminating "these ill advised and constitutionally questionable military commissions" in favor of federal prosecutions would assure the procedural protections that guard against punishing the innocent.

If the military commission system were modified to permit guilty pleas in capital cases, some sort of factual basis determination would probably be required, but how reliable would it be? Proceedings in the commissions aren't subject to the kind of public scrutiny that attends federal court hearings. The task force's contemplated plan likely wouldn't answer "questions about the fairness of a system that has been criticized as permitting shortcuts to assure convictions."

The problem could also be solved by abandoning capital punishment as a sentencing option. Frustrating a detainee's hope for martyrdom would discourage an innocent prisoner from pleading guilty while depriving terrorists of a propaganda tool.

These two suggestions are not mutually exclusive. In fact, I favor both. They don't address the underlying problem that the administration is evidently trying to skirt -- how to obtain convictions at trials without using evidence coerced by torture -- but accepting guilty pleas in the secretive military commission system isn't a solution that is consistent with American values of fairness and openness of criminal proceedings.

I should stress that a task force proposal is just that: a proposal.

It is not known whether the White House has approved the proposed death penalty provision. A White House spokesman declined to comment.

Before his election, President Obama expressed an interest in hearing from a variety of viewpoints before making executive decisions (as opposed to hearing only from Dick Cheney and Karl Rove). His willingness to entertain alternatives does not mean he will accept them. He may (I think he should) reject the idea of executing detainees on the basis of guilty pleas entered before military commissions. It's difficult to understand the downside of showing the world that the United States is capable of living up to its principles.

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