At Guantánamo: Enough Already

Yesterday morning, I watched Sudanese detainee Noor Uthman Muhammed plead guilty before a military commission in Guantánamo as part of a sealed plea deal capping his sentence at an undisclosed number of years. Noor Uthman Muhammed’s case is the only war crimes prosecution currently before the Gitmo military commissions. He is accused of training recruits at the Khalden terrorist training camp in Afghanistan and providing additional logistical support to the camp’s operations between 1996 and 2002.

In what felt like carefully choreographed pageantry, the judge, Navy Capt. Moira Modzelewski, accepted a plea from Noor Uthman Muhammed (whom she referred to simply as “Noor”), who admitted guilt to two charges of material support and conspiracy to provide material support to terrorist networks. However, the plea excised the part of the charges that asserted Noor had conspired to provide material support to attacks on civilians, murder in violation of the laws of war, murder against protected persons, or destruction of property in violation of the laws of war -- essentially, the crimes you might think were the most serious, and that bear some resemblance to war crimes.

The details of the plea deal are under seal; the judge explained that she didn’t want the military panel en route to the sentencing hearing today to be prejudiced beforehand.

Muhammed, separated from me and the other NGO monitors and reporters by 30 feet and a double-faced glass window, was hard to see. He looked tired and diminutive and spoke haltingly when asked by the judge if his plea was voluntary. From where I sat, I could only see his white skullcap, except for the times when he stood, with the help of a military guard and his translator, to be sworn in and to acknowledge his guilty plea.

The judge spoke cautiously and simply in asking Muhammed whether his plea was voluntary, whether he understood that he was giving up the right to appeal, whether he understood he was accepting guilt. The whole process took an hour and a half, and although the rituals of “consent” were respected by this deliberative questioning, as I sat in the maximum security courthouse and watched the judge rattle off the list of rights Muhammed was forfeiting. It was hard to believe that Muhammed had any real choice.

Noor answered “na’am” (“yes”) to every question about whether he understood what the plea meant. But a reporter later told me that the court translator failed to translate Mr. Muhammed’s one full sentence in court: “Enough, enough already…Let’s get it over with.”

That sentence says a lot about the “voluntariness” of Muhammed plea. After almost nine years in U.S. detention, and with the prospect of a military commission trial riddled with flaws, it is no surprise that Muhammed opted for the plea deal. This is a calculation made by criminal defendants all the time, but the calculus for Gitmo detainees is completely different: Under the new military commission rules, Muhammed can’t even count his many years in detention towards his eventual sentence if he goes to trial. And given defense counsel’s previous concerns about Muhammed’s deteriorating mental health and the policy of indefinite detention adopted by the Obama Administration, it’s hard to pretend this “choice” was about responsibility, autonomy or fairness.

By securing the third guilty plea at Gitmo since Obama took office, the government will avoid review of the critical legal issues raised by Muhammed’s case—and the issues are significant. The principal charges against Noor are material support and conspiracy to provide material support—neither of which is a crime under the laws of war. “Material support” laws have been challenged before the Supreme Court for their vagueness. Most of the events that gave rise to the charges against Muhammed took place before 2001—before there was any “war” between the United States and any terrorist group or Afghanistan. And now the military commissions will not have to address the defense’s argument that the military commissions violate U.S. constitutional law because they only apply to non-citizens.

Asked why it took over 8 years to bring this case to court, the military commissions’ chief prosecutor, Captain John Murphy, fumbled through a series of reasons—the detailed discovery, complicated issues, temporary suspension of commissions, etc.. This is the 10th year of the Guantánamo military commissions, and they are still demonstrably incapable of producing justice. We should use our tried and true federal courts, instead of perpetuating a discredited military commissions system that is recognized as a dark stain on American history. Yesterday, Chief Prosecutor Captain Murphy maintained he was “extremely comfortable” with the level of justice produced by the military commissions, but I feel incredibly uncomfortable with the spectacle I witnessed.

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