Guantánamo Dispatch: When a Guilty Plea is the Way Out

I watched a man yesterday plead guilty to war crimes in a military commission, and it troubled me. It troubled me because just the day before, I watched the defense counsel in another commission proceeding taking place at Guantánamo this week make compelling arguments that the very same charges should be dismissed because they are not legitimate war crimes.

The man who pled guilty is Ahmed Mohammed Ahmed Haza al-Darbi. He pled to five charges concerning an October 2002 attack on a French oil-tanker, the MV Limburg, off the coast of Yemen. That attack took place four months after Mr. al-Darbi was captured. He has been in U.S. custody for nearly 12 years, and at the Guantánamo prison for a majority of that time.

Under the plea deal, Mr. al-Darbi waived his right to a trial in return for a recommendation that he will be sentenced for no more than 15 years at his sentencing in August 2017.The government has said that Mr. al-Darbi could leave for a Saudi Arabian prison in four years, and serve out the rest of his time there.

In the upside-down world that is the Guantánamo military commissions, pleading guilty and serving a sentence is the only sure route out of that system — and perhaps out of Guantánamo itself. Four out of five commission defendants who have pled guilty are now in their home countries, and the fourth is scheduled for return this year. The fifth, Majid Khan, agreed to a plea deal similar to Mr. al-Darbi's — guaranteed sentencing recommendation (and, presumably, the possibility of release) in 2016. In the meantime, more than 70 men whom the government cleared for release by 2010 — and never charged with a crime — still languish in prison.

The chief prosecutor of the military commission said today that Mr. al-Darbi's guilty plea affirmed that his detention for the last 12 years was "grounded in strong legal authority and fact." But there's good reason to doubt that the charges to which Mr. al-Darbi pled guilty even fit the alleged crime. The pre-trial hearings in the other case I'm observing this week showcase the shaky legal grounding of those charges.

Abd al-Rahim Hussayn Muhammed al-Nashiri faces the death penalty for charges in connection with the attack on the MV Limburg, as well as a bombing and attempted bombing of two U.S. vessels in 2000. At a pre-trial proceeding yesterday, Mr. al-Nashiri's defense counsel asked the military judge to throw out all of the charges against him related to the attack on the MV Limburg — charges similar to the ones in Mr. al-Darbi's guilty plea.

First, the defense counsel pointed out that one of the charges against Mr. al-Nashiri, called "hazarding a vessel," did not exist under the international lawof war in 2002. Mr. al-Nashiri's defense counsel pointed to a court of appeals ruling, which overturned the military commission conviction of Salim Hamdan, and held that the military commissions do not have the power to try someone for an offense that was not a violation of the laws of war at the time the crime was committed.

Second, defense counsel argued that all of the charges related to the MV Limburg should be dismissed because if Al Qaeda was at war with France in 2002 — as the government argues, perhaps to the surprise of the French, who have not weighed in here — then the attack on the MV Limburg would not have been a war crime. That's because, according to the defense, an oil-tanker is a permitted target in a war. In the alternative, the defense acknowledged that criminal charges could be filed in a civilian court, such as our federal criminal justice system.

In short, according to the defense's strong arguments, no charge related to the MV Limburg can be tried in the military commissions.

By pleading guilty, Mr. al-Darbi avoided what could be years of litigation as these kinds of arguments work their way through the military commissions and the federal courts. In Mr. al-Nashiri's case, the military judge will issue his rulings later. What seems certain in that case, though, is that these challenges, among so many others in this novel and broken system, will continue.

Correction: This post has been amended to reflect the fact that four, not three, defendants who pled guilty are now in their home countries.

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Anonymous

Oh, well THAT'S really GOOD. I hope this MaJID person wasn't pleading guilty to doing something in the September 11 plot; b/c if he DID, *I* don't find it one BIT satisfying to know that someone involved with killing a person in my family will be out in 2 measly years.
While we OTOH have been sentenced to the rest of our LIVES in terms of being punished by having our loved one ripped out of our lives - some of us when we were in the beginning of a high school freshman year, as was the case of my daughter.
All you people might think a murder has some kind of "closure" and more such buzz words created by the press to pretend it gets better, but it DOESN'T get "better." It gets different and there's no restitution for murder, absolutely none at all.
But at the very least, if they really did do what they're saying they did, they should have to stay in prison for 15 years, like the guy in the first example. Except that HE wasn't guilty of doing the September 11 plot; I'm referring to the one who did something in France.

I'd still like to know what I'm supposed to tell my daughter about why they killed her dad when a) they never met him, b) they didn't even know what he looked like and c) the ones who actually flew the planes never DID find out they killed him.
She's never understood their reason for doing it, and I've never been able to help in the matter b/c I'm as baffled by it as she. My only comfort is knowing that at least her uncle, his brother, is pretty damn clueless about it too. He admitted he didn't know.
The only one who provided even an inkling of what it might actually be is one of our family friends, who was infantry in Vietnam.
He's the only person I know who makes war sound like there's absolutely NOTHING good about it; he even makes it sound like there's nothing necessary about it although I think some people force you into some decisions with such gusto that every once in a while I see no alternative.
Richard OTOH ALways sees an alternative.
He got in trouble by HHQ one time b/c he did this mission where he came across civilians and instead of imprisoning or doing something worse to them, he let them go. It was only three people and one was a child, but the CO "went on a flaming tirade" and asked why he "abandoned protocol and didn't bring them in." He must have given a satisfactory answer for why they didn't need them, so the CO asked the next "obvious question of 'why did you not neutralize them instead of letting them get away and now they can tell people where you were?' "
He said he "didn't neutralize them b/c it wasn't absolutely necessary to kill anybody."
Which earned him a demerit and more yelling from the CO.
Richard believes that THEY believe they're in a constant war with people and he knows that war is hell, things are done for arbitrary or mostly paranoid reasons, and that's what he believes is the reason they did what they did on September 11.

Been There, Don...

Obviously this article was written without much research or even thought. To say or think a plea is necessary to leave GTMO is just wrong. Merely check the numbers of how many were detained there since 2004 until present. One can see the population steadily declining and the number is no where near the number who have pled to anything. Ridiculous!

Anonymous

First, it's "pleaded," not "pled." Second, if he's guilty, he's getting a pretty good deal considering 17 people were killed in the Cole bombing.

Anonymous

First, it's "pleaded," not "pled." Second, if he's guilty, he's getting a pretty good deal.

Anonymous

Believe me: The French WEREN'T at war with ANYbody. That's where the whole "freedom fries" name came from.
President Bush had a sh*ttin' conniption fit just b/c France wouldn't go into Iraq and to "get back at them" he renamed French Fries freedom fries.

I know this b/c I like Johnny Depp and he made a comment about it right after it occurred. He said "I was fascinated when they changed the name of French Fries to freedom fries; people in positions of power in the U.S government showing themselves to be idiots."

from Richard, V...

The Geneva Convention and its rules on how to conduct oneself in a war are admirable but not in the least bit practical. And that statement that trainers make, "we are warriors, but we're human beings first," is also admirable but in practical use looks pretty damn silly.
There's simply no way to train a soldier to "kill the enemy using both grace and tact and to show yourself to be a paragon of humanity's virtues."
The act of taking another human's life is by definition artless and graceless, and I see no way that doing so is anything OTHER than "legalized murder."
It's just too bad Mister Bush, Cheney and their legal team didn't do their own dirty work but instead sent out privates and noncoms to do the UGLY business that war demands of its fighters.
I see that concept has been left completely intact in all the years that separate Vietnam from Iraq and Afghanistan.
Make no doubt about it: War is ugly. War is hell.
War is a short term solution that creates an everlasting problem.
Nothing can make it "humane," not even the Geneva Convention, who have tried to do so but the ugly nature of war fails them in the attempt.

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