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.