Legal News

Harvard?s Noah Feldman Breaks Down the Guilty Pleas in the 9/11 Case

By Dan Slater

It’d been a little while since Gitmo news made the front page. And then this morning came along, and bam: 9/11 Defendants Seek to Enter Guilty Pleas in Capital Case. (WSJ, NYT)

Here’s a quick refresher: As the LB noted yesterday, Khalid Sheikh Mohammed, an alleged 9/11 mastermind, and four co-defendants, said they wanted to confess to the 9/11 conspiracy and asked a military judge to take their guilty pleas. The move came as the court was scheduled to hear a host of defense motions challenging the military charges against the defendants.

The judge, Col. Stephen Henley, ruled that Mohammed, Ali Abdul Aziz Ali (Mohammed’s nephew and alleged assistant) and Walid bin Attash, who’s accused of running an al Qaeda training camp, could drop the motions entered on their behalf and enter pleas. But defense lawyers claimed that the other two defendants are mentally incompetent to plead guilty. So the judge deferred a decision until psychological evaluations were considered by the military commission. Then the other three defendants asked to defer their own guilty pleas until the question of their co-defendants’ mental competency is settled.
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Today, the Law Blog caught up with Con law expert and Harvard Law School prof Noah Feldman. “This is an extremely interesting development from a legal standpoint,” says Feldman, “because it opens the possibility of future conflicts over defendants’ willingness to participate in their own trial.” (It’s rare, but not unheard for capital defendants to enter guilty pleas. Gary Gilmore, the first person to be executed after the reinstatement of the federal death penalty, pleaded guilty and demanded that he be put to death.)

Feldman continued: “Their position could be that the trial is merely an attempt to make this look legitimate when it’s not. By pleading guilty, they draw attention to what they consider its illegitimacy.”

The judge can refuse to accept their guilty pleas, but he needs a reason, such as incompetency. “He could say that they were under a lot of pressure, for instance, or that if some were waterboarded that might be a reason to doubt their ability to enter the plea,” says Feldman. “But that’s obviously a catch-22 for the judge. What would it say about the conditions of detention? So I suspect he’ll accept the pleas.”

Another fascinating development in the case involved a letter sent by the defendants to the court. Mohammed said in court yesterday that the defendants had met several times to discuss their case. After a Nov. 4 meeting, he said, they signed a letter to the judge seeking to withdraw the defense motions and seeking a hearing “in order to announce our confessions.” It was unclear when they passed the letter to the commission. But, according to the judge, he didn’t read the letter until Sunday. (Annoyed, Mohammed asked, “Is the commission using a carrier pigeon?”)

“Ignoring the letter,” said Feldman, “looks bad because it makes it look like the government thinks it needs to show the world that we’re fair by giving them a trial. We look like we’re desperate to give them a trial.”

Full post as published by Law Blog - WSJ.com on December 09, 2008 (boomark / email).