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US may let 9/11 detainees skip trials

Guilty plea would be option for men who face death

A US proposal would ease the government's task of prosecuting Guantanamo detainees who have confessed to terrorism but whose cases present extraordinary challenges. A US proposal would ease the government's task of prosecuting Guantanamo detainees who have confessed to terrorism but whose cases present extraordinary challenges. (Brennan Linsley/AFP/Getty Images)
By William Glaberson
New York Times / June 6, 2009
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The Obama administration is considering a change in the law for the military commissions at the US prison at Guantanamo 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 Secretary of Defense 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 acts of terrorism but whose cases present extraordinary 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 CIA prisons. In any legal proceeding, the reliability of those statements would be challenged, making full trials difficult.

Some specialists on the military commissions said such a proposal would raise new questions about the fairness of a system created by the Bush administration that has been criticized as permitting shortcuts to assure convictions.

David Glazier, an associate professor at Loyola Law School in Los Angeles who has written about the commission system, said: "This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed. But I think it's going to lack international credibility."

The draft legislation includes other changes administration officials disclosed last month when President Obama said he would continue the controversial military commission system with changes that would increase detainees' rights. It is not known whether the White House has approved the proposed death penalty provision. A White House spokesman declined to comment.

The provision would follow a recommendation of military prosecutors to clarify what they view as an oversight in the 2006 law that created the commissions. The law did not make clear whether guilty pleas would be permitted in capital cases. Federal civilian courts and courts in most states with capital-punishment laws permit such pleas.

But US military law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly 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.

During a December tribunal proceeding in Guantanamo, the five detainees charged with coordinating the Sept. 11 attacks said they wanted to plead guilty. Military prosecutors argued that they should be permitted to do so. Defense lawyers argued that tribunals should follow American military law and bar the guilty pleas. The military judge has not yet made a decision.

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 Major David J.R. Frakt of the Air Force, a Guantanamo defense lawyer.

The military commission system has been effectively halted since January while the administration considers its options. The only death penalty case before a military judge is the case against the five detainees charged as the planners of the Sept. 11 attack.