The New York Times is reporting that the Obama Administration is considering changing the law to permit prisoners at Gitmo to plead guilty to death penalty cases without need for a trial. This is apparently a reaction to the stated desires of five Gitmo prisoners to become "martyrs."
The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.Skip to next paragraph
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.
Although most civilian US federal and state courts permit guilty pleas in capital cases, the Uniform Code of Military Justice does not. Article 45 of the UCMJ reads as follows:
(a) If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.
(b) A plea of guilty by the accused may not be received to any charge or specification alleging an offense for which the death penalty may be adjudged. With respect to any other charge or specification to which a plea of guilty has been made by the accused and accepted by the military judge or by a court-martial without a military judge, a finding of guilty of the charge or specification may, if permitted by regulations of the Secretary concurrence, be entered immediately whither vote. This finding shall constitute the finding of the court unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty. [emphasis added]
Basically, what happens in capital cases is that the prosecution presents their case, at the resting of the prosecution case and prior to putting on a defense case, the defendant, if he chooses to do so, can change his plea to guilty. The reason behind this is that if the prosecution fails to make out a case against the defendant, the court would dismiss the charges, even if he wanted to plead guilty. This is a safeguard against coerced confessions.The UCMJ specifically prohibits the use of coerced testimony, which would include a guilty plea
Uniform Code of Military Justice art. 31(d), 10 U.S.C. § 831(d) (2000) (“No statement obtained . . . through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against [the accused] in a trial by courtmartial.”).
According to the Times article, the rationale behind changing the law (a bit ex post facto if you ask me–of course, no one did ask me) is to avoid having the defendants talk about being tortured. However, even with a guilty plea the judge is obligated to make sure that the defendant allocates to every element of the crime to which he is pleading guilty and whether such plea is voluntary and knowing and free from coercion.
So, I have to admit, I don’t get it. I don’t understand how changing a really good law, designed to prevent coerced confession and to uncover evidence of coerced confessions, will somehow paper over the fact that we already know that these Gitmo detainees were tortured.
Even at the guilty plea allocution, they would have to answer in the affirmative if they were asked if they had been coerced. A negative answer, in view of what is publicly known to everybody—including the judge who hear the plea—would be obvious perjury and the lawyer allowing it would have the ethical violation of suborning perjury. I just don’t understand how this proposed change in the law solves—-anything.
Feel free to edjamakate me in the comments.
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It would be lovely to live in a country that believed in the rule of law. Someday….
A great catch and depressing but important article in NYT.
But how can you not get it, as you set up the rationale for the change in the UCMJ so well?
This particular effort by the Obama administration is so transparent, so unnecessary, and therefore, so pernicious, as to boggle one’s mind. It shows that despite all the glorious talk from Obama, he is not above changing the laws and protections set down in US law if it suits the political purposes of the executive branch.
Of course this is to hide the coerced confessions, and with small extension, further examination of the intelligence induced thereby to produce the false intel for the criminal invasion of Iraq.
War criminals ran the government, and now those that rule seek to protect the war criminals. Why? So they may feel free to conduct war crimes themselves? That’s the logical extension of these actions. It may be an incorrect extrapolation. It may only be to prevent prosecutions and dampen the call for investigations into torture. In any case, it is an abomination.
This is just beyond mentally ill. Who the hell do these people think they are?
Does this mean we are going to get some more detainees suicided in full public view?
Yeah.. Saddam’s hanging sure brought a sense of joy, victory and liberty to my heart.
This is obscene. Obushma and his cronies should be ashamed of themselves.
This is NOT the President I voted for.
I’m not bashing him for not fixing everything in the first 100 days.
But the actions he’s taking and HAS taken, or directed his DOJ, etc, to take on his admin’s behalf are just making me heartsick. IOW, I’m VERY unhappy with what he’s actually DONE so far.
11-teen dimensional, upside-down underwater chess? My a$$.
Funny Wheelie Diva
if this report is true, i want to know the names of the people on the “administration task force on detention.”
Should have named the group something like…Feith No More. /s
Oh this is a good plan; eh, or not. Very nice post Cynthia Kouril.
Saw something about this early today and found myself thinking about clanging cymbals and tinkling bells.
And the futility of trying to prevent something from having been done.
[Throws up both hands.]
“They can do anything you can’t stop them from doing.”
They are your rulers.
Got a problem with that?
Who is this task force? Ten minutes of googling yields zip about the membership.