Constitution Check: Is plea bargaining a step toward closing Guantanamo?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a possible solution to the detention of prisoners at Guantanamo involving long-distance plea bargains.

THE STATEMENTS AT ISSUE:

“The [proposed] National Defense Authorization Act for Fiscal Year 2017 extends the prohibition on the use of funds for transfer to the United States of individuals detained at Guantanamo Bay, [and] extends the prohibition on the use of funds for closure of Guantanamo Bay….The Act also allows detainees to plead guilty to criminal charges in Article III courts via teleconferences and authorizes the government to transfer such detainees to third countries to serve out their sentences.”

– Excerpt from a news release on May 12 by the Senate Armed Services Committee, outlining the details of a new military policy bill that must now be reconciled with a somewhat different measure in the House of Representatives, before going to President Obama for his signature.  The president is likely to sign the resulting measure, even though he and his aides do have strong objection to some of the congressional restrictions on government detention policy at Guantanamo Bay.

“In a case where a district judge [in a civilian Article III court] assures herself that a Guantanamo detainee’s waiver of his right to be physically present (and all of the other waivers in the plea agreement) was knowing, voluntary, and intelligent, it seems to me that there would be no constitutional objection to such a plea bargain.”

– Excerpt from commentary by American University law professor Steve Vladeck on the “Just Security” website on May 12, reacting to the Senate committee’s approval of plea bargaining for Guantanamo prisoners.

WE CHECKED THE CONSTITUTION, AND…

Except for one Supreme Court decision eight years ago, creating one constitutional right for the foreign nationals being held in a U.S. military prison at Guantanamo Bay in Cuba, those detainees have only the rights that Congress is willing to give them.  That is something of an anomaly for those who spend their lives in a military facility totally under the control of the U.S. government.

That control over Guantanamo led the Supreme Court, in the 2008 decision in Boumediene v. Bush, to create a right for the detainees there to go into civilian courts to challenge their continued imprisonment.  After more than 14 years of the detention operation at Guantanamo, that remains the only right yet extended to the detainees.

Congress has been very resistant to creating any other rights.   And, although one of President Obama’s earliest actions when he entered the White House in early 2009 was to declare that he would close down Guantanamo, Congress does not want it closed, and each year has used its power over the federal purse to impose a series of restrictions on how the Defense Department can deal with those prisoners.

Congress has not been the only point of resistance.   A series of rulings by a federal appeals court in Washington, D.C., has turned the promise of the Boumediene decision into a frustration for detainees and their volunteer defense lawyers.  After those appeals court rulings came down (and were left intact by the Supreme Court), not one additional detainee has won a court challenge seeking release from Guantanmo.

The Guantanamo population, though, has come down in recent years, as a result of the combined efforts of the Defense and State Departments in clearing detainees for release and finding other countries willing to receive them after their release.  Now, there are only 80 prisoners still at Guantanamo Bay, and 26 of them have been cleared for release, but will only depart from the prison facility when another country has agreed to accept them.

That leaves 54 prisoners.  Ten of those are facing trials (or have already been convicted) by military tribunals at the Cuba facility, but those trials have been plagued by problems and complications, and there is no way to know when that part of Guantanamo’s operation will come to an end.

The question now, therefore, is what do with the other 44 prisoners.  It now appears that Congress may be willing to relax its stance on Guantanamo, at least to the point of allowing some of the remaining detainees to make plea bargaining deals with federal prosecutors.  The plan would be for them to agree to plead guilty to criminal charges in civilian court, and then be sent to other countries to serve any resulting sentences.

Because of continuing congressionally imposed restrictions, however, none of those detainees could be brought to the U.S. to enter their pleas.   The proposal is to have them do so by videoconferencing – a judge in a courtroom in the U.S. would preside over a plea hearing with the detainee appearing via closed circuit TV.  Where each detainee’s lawyers would be, in this process, is not yet specified.

At least some of the lawyers who represent Guantanamo detainees have made clear that they would advise their clients to enter into such plea deals.  At a minimum, those lawyers say, such a proceeding may be a path out of Guanantamo.  The judges presiding over such bargains could accept the guilty pleas, if they found that the bargain was entered freely by the detainees, But those judges would also have the authority to give the detainees credit for the time they have been held in detention – 13 or more years, for most of the detainees.  That might even spare them from having to serve in another country any of the sentence they got – which is what Congress apparently wants.

There could be some risk for the government in such proceedings.   They might encounter federal judges who would conclude that the plea bargain had not been made entirely voluntarily, -- or that, now that the civilian courts have finally gotten involved – some judges might question the treatment that detainees had experienced at Guantanamo.  And some judges might even decide, after a guilty plea, to reduce the resulting sentence by the amount of time the prisoner had been held at Guantanamo, thus suggesting release.  But where?

Once a civilian court judge got involved in such a case, the government might not have the control and the wide discretion that it clearly has in the military commission system at Guantanamo.

Some legal observers have raised questions about the constitutionality of such long-distance guilty pleas, with the prisoner not in the courtroom.  Their lawyers, of course, would likely advise them that, if they are willing to enter a plea deal, they would have to forfeit any rights that they otherwise might have – such as the right to be present at the plea hearing.   But, since the detainees seem to have only such rights as Congress has conferred upon them, they might not have any rights to surrender – unless the judge chose to recognize rights that, so far, no one in the cells at Guantanamo has yet enjoyed.