Jury Still Out on U.S. Military Tribunals Experts Doubt Value of Guantanamo Inmates’ Recent Confessions

By Adam Liptak

In the last few weeks, the two most famous prisoners at the Guantanamo Bay naval base in Cuba have responded to proceedings against them by admitting their guilt.

That might appear to be a vindication of the Bush administration’s strategy of creating a built-from-the-ground-up military justice system limited to people said to be terrorists.

But because of the unusual circumstances surrounding the two admissions, it is not clear yet that either is truly representative of the system the administration has established, legal experts said.

Neither the guilty plea David Hicks entered on Monday, admitting to providing material support to a terrorist organization, nor the wide-ranging confession from Khalid Shaikh Mohammed, contained in a Pentagon transcript of a closed hearing held on March 11, had about it the solemn finality of a conviction in a civilian criminal court, and in some ways they were aberrations.

To hear critics of the Bush administration describe them, the conclusions of the two proceedings were tainted by past abuse and a justice system not worthy of the name.

“The proceedings themselves just demonstrate the absence of fixed rules,” said Jonathan Hafetz, a lawyer with the Brennan Center for Justice at New York University School of Law who represents other prisoners at Guantanamo. “This is justice on the fly.”

The administration’s defenders say the recent developments are more than satisfactory and demonstrate that the administration may have struck the right balance between gathering intelligence in wartime and providing prisoners with the full array of due process protections.

John Yoo, a law professor at the University of California, Berkeley, and one of the principal architects of the administration’s legal strategy after the Sept. 11, 2001, attacks, said, “We are finally beginning to see whether the military commissions can balance a fair trial with protecting national security in a way that the civilian courts cannot.”

“One of the purposes of the military commissions,” he added, “was to provide a forum where the government and Al Qaeda terrorists could reach plea bargains that would allow our intelligence agencies to win their cooperation.”

Guilty pleas are common in ordinary American criminal cases, too, of course. But in a garden-variety criminal prosecution, the parties bargain, in the famous phrase, in the shadow of the law.

In the usual case, defendants make a rational calculation based on the strength of the evidence against them, the state of the law and, most important, outcomes in earlier cases. If defendants think a plea will result in a shorter sentence than the likely one at trial, discounted by the possibility of acquittal, they plead guilty.

None of that holds at Guantanamo. The incentives and calculations are quite different there.

Hicks, for instance, was bargaining in the shadow of many things – the conditions at the base, international diplomacy, homesickness and the possibility of indefinite detention without charge. But he was not, for the most part, bargaining in the shadow of the law.

The statute under which he was to be tried was brand new and untested. The relevant regulations are as yet largely unwritten. There is no body of similar trials to set the parameters for settlement discussions.

“The proceedings that led to Hicks’s plea,” Hafetz said, “underscore that the military commissions are a makeshift system that lacks legitimacy.”

In the hours before Hicks’s plea, the military judge hearing the case, Colonel Ralph Kohlmann of the Marines, disqualified two defense lawyers, one for refusing to agree to abide by regulations that have yet to be written.

Hicks’s plea appears to have been based on his calculation that he will be allowed to serve out his sentence in his home country, Australia. He may even be able to challenge his conviction there, in conventional courts.

The alternative to a transfer to Australia was a trial some months from now with an unpredictable outcome, the possibility of having to serve any sentence at Guantanamo and the risk of continued detention as an enemy combatant even once that sentence was completed.

While Mohammed’s calculations seem to have been very different from Hicks’s, they were just as unusual.

Mohammed, said to have been the mastermind of the Sept. 11 attacks, did not appear before a military commission like the one that heard from Hicks. The function of a military commission is the one associated with most criminal courts: It hears cases against defendants charged with violating the law and decides whether they are guilty. Military commissions are largely open to the public, and reporters and human rights groups saw Hicks plead guilty.

Mohammed, on the other hand, appeared before a combatant status review tribunal. The session at which he apparently issued his comprehensive confession was brief, closed to the public and held before officers whose names were not disclosed.

Detainees appearing before the status tribunals are not represented by lawyers. And the tribunals’ purpose is different from that of a military commission. All they are meant to do is determine if the prisoner before it has been properly designated as an enemy combatant.

Mohammed used the opportunity for grandstanding and propaganda, comparing himself to George Washington and pleading on behalf of those he said were falsely imprisoned.

He also seemed to allude to having been tortured while in CIA custody, though the transcript was redacted after the topic was introduced. Human rights groups said such abuse could taint and undermine everything Mohammed said.

The Hicks case is unrepresentative in another way, legal experts said. The vast majority of the 385 men held at Guantanamo have not been charged with any crimes, and the Pentagon may never charge them. The only tribunal they ever see may be the one that heard Mohammed.

(c) 2007 International Herald Tribune. Provided by ProQuest Information and Learning. All rights Reserved.