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In the last installment of the long-running Guantanamo Show, the Congress asserted its primacy by refusing to fund the closure of the American facility in Cuba, and President Obama announced that, to administer justice to detainees, he may use the Bush-era military tribunal trial system, after all. Perhaps the French are right: the more things change, the more they stay the same.
And now the administration says that detainees charged with the most egregious offenses---including Khalid Sheik Mohammed, who proudly avers that he was the organizer of the 9-11 attacks---may be permitted to plead guilty to avoid the death penalty. Although the prospect of murderers' escaping the needle may be repulsive to some people, copping a plea may please all the litigants, but this means yet another change in the inconsistent patchwork of rules established to deal with these people.
Originally, the idea was that the prisoners of the war on terror, a term of convenience now obsolete, would remain incarcerated for the duration of the conflict. This scheme has parallels with procedures in conventional war, in which prisoners are not repatriated until the armistice, but since the expectation was that the war against terrorists would last an indeterminate period of time, so would the period of internment.
It didn't take long for the Bush administration to be swamped with complaints about these arrangements, and the system of tribunals was devised. This was something of a bastard arrangement in which many detainees were released, while the remainder were to have their cases heard in situ by military judges who used some procedures similar to those in courts martial. Among the rules of interest here is the requirement that a defendant may not plead guilty in a case for which the maximum penalty is death. That is, the possibility of a capital penalty demands that there must be a trial, whether the defendant wants one or not.
But a trial does not suit the government, because there is always the possibility that the guilty may go free, and the government's evidence includes both classified material and some information gleaned through coercive measures. And notwithstanding the detainees' assertions that they want martyrdom, it appears that they prefer the certainty of incarceration to the probability of death.
Some are already grousing about these new arrangements, and much more consternation will be heard from those who want full disclosure of American excesses so that they will not recur, or so that the fanaticism of jihadists can be revealed in full, or so that the previous administration can be heaped with maximum ignominy. If President Obama gets his way, objectors along the entire political spectrum will be have plenty to complain about.
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Thanks. As much as an extremist as I am---and as we all tend to be on some subjects, especially as we get older---I find it useful to cut to basics, something we all learned as brand new soldiers.
