Plea Deals in Federal Court Mooted for Guantánamo Prisoners in Next Year's National Defense Authorization Act

Campaigners calling for the closure of Guantánamo outside the White House on January 11, 2016 (Photo: Andy Worthington via Flickr).

By Andy Worthington, May 20, 2016

Last week there was an interesting development in relation to President Obama's hopes of closing Guantánamo, when the Senate Armed Services Committee announced that it had included a provision in its version of next years's National Defense Authorization Act, which, as Charlie Savage reported for the New York Times, would allow Guantánamo prisoners to "plead guilty to criminal charges in civilian court via video teleconference," and would also allow them to be "transferred to other countries to serve their sentences."

Last November, a number of lawyers sent a letter to the Justice Department, which the New York Times discussed here, in which they "express[ed] interest in exploring plea deals by video teleconference -- but only in civilian court, not military commissions."

Lawyers for six prisoners said that they “may wish” to negotiate plea deals -- Abu Zubaydah, the "high-value detainee" for whom the CIA's torture program was developed, Abu Faraj al-Libi, another "high-value detainee," Sanad al-Kazimi, a Yemeni who recently went before a Periodic Review Board, Abd al-Rahim Ghulam Rabbani, a Pakistani, Abdul Latif Nasser, the last Moroccan in the prison, and Soufian Barhoumi (aka Sufyian Barhoumi), an Algerian whose PRB is taking place on May 24. As Savage described it, the letter also "said several others are interested, and that Majid Khan, who has pleaded guilty in the [military] commissions system but has not been sentenced, would like to plead again, in civilian court."

Katya Jestin and Anthony Barkow, lawyers for Majid Khan, noted, "A reduction of this size to the detainee population at Guantánamo would significantly aid the administration’s efforts to close the prison and may help facilitate the disposition of other detainees."

In November, writing about Abu Zubaydah, Charlie Savage described how he "was initially portrayed after his 2002 capture as a senior Al-Qaeda leader, but his importance and role were later downgraded." He also explained how Joe Margulies, one of his lawyers, "confirmed his interest in a plea deal but declined to say what length of sentence he would accept." Margulies said, "We are happy to engage in negotiations with any prosecutor who would entertain a fair negotiation based on his genuine, not mythologized, culpability."

Speaking about last week's announcement by the Senate Armed Services Committee, Wells Dixon, a lawyer at the Center for Constitutional Rights, said, "Allowing a detainee to plead guilty and cooperate with the U.S. government is a no-brainer. This provision should draw broad bipartisan support. It is an important step toward cleaning up the mess that exists at Guantánamo, and reducing the so-called irreducible minimum who remain in limbo."

Examining the plea deal proposal, Charlie Savage also noted that federal courts offer advantages for prisoners "seeking a defined sentence and an exit from the wartime prison," explaining that prisoners "who participated in a terrorist group but were not linked to any specific attack could plead guilty to several offenses under domestic criminal law, including conspiracy and providing material support to terrorism" -- extremely important after appeals court judges ruled, in memorable and influential rulings in 2012 and 2013, that the offenses mentioned above cannot be tried in military commission trials because they are not war crimes.

As Charlie Savage also noted, unlike military commissions, federal courts "can count previous time in custody toward any sentence."

The bill put forward by the Senate Armed Services Committee now goes to the full Senate, where it may secure Republican support, if the comments of Sen. Lindsey Graham, a longtime opponent of Guantánamo's closure, are anything to go by. The Republican Senator for South Carolina, who is a member of the committee, said, as Charlie Savage described it, that "he supported an 'all-of-the-above approach' that would give the government a 'criminal disposition path' for rank-and-file detainees -- especially if it did not involve bringing them to a courthouse on domestic soil, something he said could make the courthouse a target." Sen. Graham emphasized, however, that he still thought it "made more sense" to use military commissions for what Savage described as "contested trials of high-value terrorists."

Unfortunately, the Senate Armed Services Committee's bill does nothing to allow President Obama to close Guantánamo before he leaves office -- not just implicitly, because the plea deal plan wouldn't kick in until next year, but also explicitly, because it "would largely extend an existing ban" on bringing prisoners to the U.S. mainland, despite President Obama asking Congress to lift that ban, as part of a plan for closing the prison, unveiled early this year, which also involves an intention to bring to the U.S. mainland a small number of prisoners the government wants neither to put on trial nor release.

However, the bill does, for the first time, "allow the temporary transfer" of prisoners to the U.S. mainland "for emergency medical treatment," because the prisoners are getting older and more ill, and Guantánamo itself "has only limited medical equipment and capabilities."

80 men are still held at Guantánamo. Ten have been charged -- or already convicted -- in the military commission trial system, and 28 have been recommended for transfer. Charlie Savage noted that the administration’s inter-agency process approved transfer deals for 14 of the 28 men approved for release "several weeks ago," according to officials, although he added that defense secretary Ashton Carter "has not yet notified Congress," which he must do at least 30 days before any prisoner leaves.

While the prospect of Guantánamo's population seen being reduced to 66 is heartening news indeed, this still leaves 42 men facing Periodic Review Boards, and perhaps, in some cases, the plea deals proposed by the Senate committee. I hope that Congress will agree to the proposal, but it would be better, of course, if lawmakers accepted President Obama's plan and allowed him to close the prison before he leaves office.

Note: For further discussion of the NDAA proposals, see Steve Vladeck's analysis for Just Security, and Lyle Denniston's analysis for Constitution Daily.