OPINION:
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“O, what a tangled web we weave/When first we practice to deceive.” — Sir Walter Scott (1771-1832)
The case of the Guantanamo plea agreement gets curiouser and curiouser.
A few weeks ago, we learned that a plea agreement had been entered via a signed contract between the retired general in the Pentagon who is supervising all prosecutions at the U.S. military base at Guantanamo Bay, Cuba, the defendants and defense counsel, and the military prosecutors.
The agreement, as we understand it from sources who have seen it, provides that in return for a guilty plea, Khalid Sheikh Mohammed and others will serve life terms at Gitmo rather than risk the death penalty at trial. A condition of the plea deal is a public and detailed recitation of guilt.
Stated differently, Mohammed has agreed to reveal under oath the nature and extent of the conspiracy that resulted in the crimes of 9/11.
So far, this is straightforward. While the trial judge may have given his nod of approval to the terms of the agreement, under the federal rules of criminal procedure, the agreement is not final until the judge hears the defendants admit guilt under oath in a public courtroom and then accepts the plea in a written order.
That admission has not yet taken place because the secretary of defense, who learned of the plea agreement while traveling in Europe, removed the authority of the retired general supervising the prosecution to make plea agreements without his express approval.
Thereupon, defense counsel asked the court to enforce the agreement anyway since it is a signed contract and schedule the plea hearing at which Mohammed and others will presumably comply with their obligations to spill the beans on the 23-year-old case.
The military prosecutors — who initiated plea negotiations because they recognized that they could not ethically defend the George W. Bush administration’s torture of these defendants — have been ordered by the Pentagon to ask the judge to reject the plea.
Thus, we have a tangled web, tangled because the government deceived the public and federal judges about its own criminal behavior — the Bush torture regime. The signed contract was initiated and drafted by the same military prosecutors who have been ordered — against their professional judgment — to ask the trial judge to repudiate it.
Those who have seen it have revealed that the agreement contains a poison pill — a clause that survives the agreement even if it is nullified.
That poison pill removes the possible imposition of the death penalty should the case go to trial.
This was apparently included in the agreement in case the political winds blow against the government and it gets cold feet. That is probably what happened.
When Secretary of Defense Lloyd Austin — who is not a lawyer — was asked why he ordered the agreement rescinded, he said that the public has a right to learn all the evidence in the case. He must have made that comment while ignorant of the terms of the plea agreement, as the agreement requires a full recitation by the defendants of their knowledge of the events leading up to 9/11, and nothing prevents prosecutors from revealing whatever evidence they choose to reveal.
Moreover, the Pentagon’s own team of prosecutors has warned against the public revelation of all the evidence in the case because the evidence of stomach-churning torture will expose war crimes for which there is no statute of limitations.
Stated differently, if this case is tried in the traditional way rather than reaching a plea agreement with the defendants’ recitation under oath of their knowledge of the crimes, President George W. Bush himself and others in his administration, in the CIA and in the military could be indicted and tried in foreign countries on war crimes charges.
There will also be blowback against American troops stationed abroad, most of whom were not born when Mr. Bush ordered torture and deception and invasions of Afghanistan and Iraq. His “don’t mess with Texas” presidential style continues to haunt today. He failed to understand that the problem of searching the world for monsters to slay is that the monsters you find will follow you home.
Adding to the jurisprudential oddities here is the intrusion of Congress. When President Barack Obama revealed his intention to close Guantanamo — it costs $500 million a year to operate — Congress enacted a statute that prohibited the removal of the defendants from Gitmo to the U.S. mainland for any reason, including the infliction of capital punishment.
That statute is probably unconstitutional since it violates the separation of powers. Just as the president cannot tell Congress when and how to vote, Congress cannot tell the president how to manage federal prisons or prosecutions.
Gitmo was a Devil’s Island, flawed from its inception. More than 100 years ago, the U.S. leased the land on which Gitmo stands from Cuba. When the lease ran out, the U.S. refused to leave. Mr. Bush’s lawyers advised him that if he tortured and prosecuted suspected terrorists in Cuba, federal laws didn’t apply, the Constitution wouldn’t restrain him and, best of all, pesky federal judges couldn’t interfere with him.
The Supreme Court rejected Mr. Bush’s arguments for evading the Constitution in five cases. Mr. Bush has visited upon all of his successors a nearly insoluble jurisprudential mess — a mess born of his antipathy to the Constitution he swore to uphold and the knee-jerk bravado apparently integral to his persona.
Gitmo is a tragic example of what happens when Americans entrust the preservation of constitutional norms to those unworthy of that trust and quick to cut constitutional corners to persecute unpopular defendants. The Constitution was written in large measure to ensure that these things can’t happen here, but they do.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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