Sec. Gates Should Suspend Military Tribunals

Our guest blogger is Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress Action Fund.

Those who thought it couldn’t get any worse at Guantanamo were once again proved wrong on Monday after the farcical on-again off-again guilty pleas from Khalid Sheikh Mohammed and four other defendants played out in front of the international media and the families of the 9/11 victims. President-elect Obama has consistently stated that he views the military commissions as fundamentally flawed and we need no more evidence than this latest sorry episode. Secretary of Defense Robert Gates should step in and immediately suspend the entire military commissions system to prevent any more fiascos.

The Bush administration had intended the latest pre-trial hearings — involving Mohammed and four others accused of the 9/11 attacks — to serve as an international media bonanza, complete with the presence of the families of 9/11 victims at Guantanamo for the first time. But KSM and the other defendants turned the tables on the Bush administration and instead used the assembled media for their own propaganda coup, offering to plead guilty in the hopes that they would be executed by President Bush after trial in this deeply flawed system.

Little did they know that the system is so flawed that the judge was unaware of whether he could accept the guilty pleas and sentence them to death. Imagine that, five defendants accused of the most heinous crime perpetrated on Americans in decades offer to confess and actually want to be executed, but the judge isn’t sure if he can accept what amounts to a complete victory for the prosecution.


It turns out the hastily crafted Military Commissions Act only allows for a death sentence to be imposed by a unanimous vote of a military jury and does not have any provision that grants authority for the judge to order execution in the instance of a guilty plea. The judge has set a hearing for January 4, 2009, to hear arguments about how to impose a death sentence if the defendants plead guilty and no military jury is impaneled.

Back to KSM. It is clear this offer to confess is not a sincere admission of guilty, but rather a cynical ploy to obtain his desired outcome: martyrdom at the hands of his most hated enemy, President Bush. After all of the shenanigans about whether the judge could accept them, KSM and his other defendants withdrew their offer to plead guilty. So now we are back to where we started after a humiliating series of events that makes the Keystone Cops look like Delta Force.

But the fallout from this embarrassing episode reaches beyond mere propaganda setbacks and could tie the hands of the incoming Obama administration. Perversely, Khalid Sheikh Mohammed and George W. Bush now want exactly the same thing: a quick path to a guilty verdict and a death sentence. Even though the commissions as a whole have been a complete disaster, with both sides working towards the same objective it is not inconceivable the January 4 hearing results in a system to call in a military jury for the sentencing phase. Since the defendants actually want to be executed, that process may not take long and this military commission could produce a death sentence for these five defendants a mere two weeks before the Obama takes office.

Such a result may preclude any trial of KSM in U.S. federal court on criminal charges related to 9/11 because the double jeopardy clause prohibits any one person from being put on trial twice for the same offense. If that is true, then the Obama administration could be saddled with this horribly flawed result and stuck in a terrible situation: either carry out the sentence and execute KSM and the others, giving them exactly what they want and inviting international criticism that could imperil the whole project of closing Guantanamo; or deny KSM his favored path to martyrdom, instead imprisoning them for life, but risk a serious domestic political backlash that could also imperil the whole project of closing Guantanamo.

Secretary Gates can prevent all of this from happening. The Military Commissions Act make the secretary of defense the convening authority for the entire process. He has the power to suspend all activity in the military commissions and he should do so with immediate effect. However small the likelihood of this worst possible scenario, Secretary Gates should take action to ensure it does not occur because one thing we have learned about Guantanamo is that it can always get worse.