The New York Times | June 5, 2009
By William Glaberson

The Obama administration is considering a change in the law for the military commissions at the prison at Guantánamo Bay, Cuba, that would clear the way for detainees facing the death penalty to plead guilty without a full trial.

The provision could permit military prosecutors to avoid airing the details of brutal interrogation techniques. It could also allow the five detainees who have been charged with the Sept. 11 attacks to achieve their stated goal of pleading guilty to gain what they have called martyrdom.

The proposal, in a draft of legislation that would be submitted to Congress, has not been publicly disclosed. It was circulated to officials under restrictions requiring secrecy. People who have read or been briefed on it said it had been presented to Defense Secretary Robert M. Gates by an administration task force on detention.

The proposal would ease what has come to be recognized as the government’s difficult task of prosecuting men who have confessed to terrorism but whose cases present challenges. Much of the evidence against the men accused in the Sept. 11 case, as well as against other detainees, is believed to have come from confessions they gave during intense interrogations at secret C.I.A. prisons. In any proceeding, the reliability of those statements would be challenged, making trials difficult and drawing new political pressure over detainee treatment.

Some experts on the commissions said such a proposal would raise new questions about the fairness of a system that has been criticized as permitting shortcuts to assure convictions.

David Glazier, an associate professor at Loyola Law School in Los Angeles who has written about the commission system, said: “This unfortunately strikes me as an effort to get rid of the problem in the easiest way possible, which is to have those people plead guilty and presumably be executed. But I think it’s going to lack international credibility.”

The draft legislation includes other changes administration officials disclosed last month when President Obama said he would continue the controversial military commission system with changes that would increase detainees’ rights. It is not known whether the White House has approved the proposed death penalty provision. A White House spokesman declined to comment.

The provision would follow a recommendation of military prosecutors to clarify what they view as an oversight in the 2006 law that created the commissions. The law did not make clear if guilty pleas would be permitted in capital cases. Federal civilian courts and courts in most states with capital-punishment laws permit such pleas.

But American military justice law, which is the model for the military commission rules, bars members of the armed services who are facing capital charges from pleading guilty. Partly to assure fairness when execution is possible, court-martial prosecutors are required to prove guilt in a trial even against service members who want to plead guilty.

During a December tribunal proceeding in Guantánamo, the five detainees charged with coordinating the Sept. 11 attacks said they wanted to plead guilty. Military prosecutors argued that they should be permitted to do so. Defense lawyers argued that tribunals should follow American military law and bar the guilty pleas. The military judge has not yet made a decision.

Lawyers who were asked about the administration’s proposed change in recent days said it appeared to be intended for the Sept. 11 case.

“They are trying to give the 9/11 guys what they want: let them plead guilty and get the death penalty and not have to have a trial,” said Maj. David J. R. Frakt of the Air Force, a Guantánamo defense lawyer.

The military commission system has been effectively halted since January while the administration considers its options. The only death penalty case now before a military judge is the case against the five detainees charged as the planners of the Sept. 11 attack, including the self-proclaimed mastermind, Khalid Shaikh Mohammed.

Cmdr. Suzanne M. Lachelier, a Navy lawyer for one of the detainees in the Sept. 11 case, Ramzi Bin al-Shibh, said of the Obama administration, “They’re encouraging martyrdom.”

The administration has not announced whether it will continue with the Sept. 11 case in the military commissions or charge some of the men in federal court. Officials involved in the process said that lawyers reviewing the case have said that federal-court charges against four of the men might be possible, but that the evidence might be too weak for a federal court case against one of the five, Walid Bin Attash, a veteran jihad fighter who was known as Khallad.

Dean Boyd, a Justice Department spokesman, said no decisions had been made about where the men would be prosecuted. Mr. Boyd said it was premature to discuss any legislative proposals. But, he said, “As the president has said, the administration is working diligently to identify possible legislative amendments to the current military commission system.”

A bill presented to Congress seeking changes in the commissions could open a new debate about the system for trying terrorism suspects. The administration is already in a standoff with Congress over financing for Mr. Obama’s plan to close the Guantánamo prison by January.

In the Sept. 11 case, the five detainees have seemed to be daring the United States to put them to death, expressing pride in their acts of what they call jihad against America, which they described as “the terrorist country,” and its allies, “the filthy Jews.”

In December, the military judge, Col. Stephen R. Henley, ordered written arguments from lawyers. “Can an accused plead guilty,” Colonel Henley asked, “to a capital offense at a military commission?”

The military prosecutors argued that Congress had a “clear intent” to permit guilty pleas in death penalty cases at Guantánamo. They note that a detainee could be sentenced to death only after a unanimous vote by a panel of military officers.

Critics of the military commission system say that the battles over its fairness show that any execution would bring new scrutiny around the world. They say the prosecutors should be required to present evidence proving that anyone who is to be executed was actually guilty of the crimes charged.

Requiring prosecutors to reveal what they know about detainees and how they know it would cast light both on the interrogation techniques used against the men and the acts of terrorism for which they are facing death, said Denny LeBoeuf, an American Civil Liberties Union lawyer who works on Guantánamo death penalty issues.

“Don’t we have an interest as a society,” Ms. LeBoeuf asked, “in a trial that examines the evidence and provides some reliable picture of what went on?”