Can Pre-Trial Agreements Satiate Indefinite Detention Concerns?

Evi-Katsantonis-indef-det-150×150.jpg” alt=”” width=”150″ height=”150″ />Indefinitely detaining suspected terrorists is just one of the many longstanding concerns surrounding Guantanamo Bay’s prolonged existence. The Obama administration has consistently tried to respond to indefinite detention concerns by closing the facility, to circumvent military custody for detainees, and even prosecuting detainees in U.S. federal court. Despite these efforts, the facility still remains open, and currently holds 171 detainees – only 36 of which have been deemed eligible for prosecution. Recently, however, prosecutors in the Office of Military Commissions at Guantanamo Bay have proposed an alternative legal mechanism to satiate indefinite detention concerns: pre-trial agreements.

Like a defendant in U.S. federal criminal court may be afforded the opportunity to enter into a plea agreement with the government, Rule 705 of the Military Commissions Act (MCA) of 2009 enables detainees who are eligible for prosecution in military commission proceedings to enter into pre-trial agreements with military prosecutors. Rule 705 Section (b)(2)(A)-(C) specifically enables parties to negotiate pre-trial agreements, which may include, a promise by the convening authority to refer charges to a certain type of court-martial, a promise to refer a capital case as non-capital, and/or a promise to withdraw one or more charges or specifications from the court-martial.

The use of pre-trial agreements in military commission proceedings is particularly evident in two recent cases. In February of this year, Majid Khan was the first high-value Guantanamo detainee to strike a plea bargain with the U.S. government. Khan, a Pakistani citizen, acknowledged that he flew to Pakistan after 9/11 and volunteered to work for Khalid Sheikh Mohammed. Khan is specifically accused of helping KSM plan explosions of fuel tanks at U.S. gasoline stations and delivering funds for the Marriott hotel bombing that occurred in Jakarta, Indonesia in 2003. Khan’s agreement stipulates that he will serve no more than 19 years in exchange for his full cooperation, including pleading guilty to five war crimes and providing testimony at other detainees’ military commission trials.

Subsequently, in October 2010, Omar Ahmed Khadr, a Canadian national and Al Qaeda associate, pled

guilty for committing murder and other war crimes before he was subsequently sentenced to eight years confinement. Khadr still remains in custody despite the fact that his plea agreement stipulates that he is eligible for transfer to Canada to serve the remainder of his sentence. Khadr’s limbo status is primarily a result of bureaucratic delays within the Canadian government. Before the Secretary of Defense can sign the final paperwork and give Congress a legally mandated 30-day notice of Khadr’s pending transfer, the Canadian minister of public safety must formally ask for Khadr. The status of Khadr’s file and whether the Canadian minister will even review it in the near future is unknown since the Khadr family is quite unpopular in Canada and the Canadian prisons agency must first conduct a public safety review of Khadr.

Recent reports indicate that Khadr’s predicament casts a dark shadow on the U.S.’ ability to honor the stipulated length of Khan’s detention. However, differences in Khadr and Khan’s cases and the extent to which pretrial agreements can be offered and upheld present more complications in satiating indefinite detention concerns. First, whereas Khadr has already been sentenced, Khan’s sentence is not scheduled for another four years and is ultimately contingent upon Khan’s cooperation with the U.S. government. Even though it is too early to determine Khan’s specific sentence terms and whether he will face the same hurdles that Khadr currently faces with the status of his transfer application, the mere inability to compare and/or distinguish pre-trial agreement cases may arguably dilute the legal mechanism’s credibility and the likelihood that they will be honored. Secondly, since pre-trial agreements can only be offered to detainees who are eligible for prosecution – like Khadr, Khan, and the 36 detainees currently at Guantanamo – pre-trial agreements will arguably only limit, rather than end, the likelihood of indefinite detention. Ultimately, indefinite detention is inevitable for the other detainees that the Obama administration task force has deemed as either too dangerous to release or too difficult to prosecute because the evidence against them was not acquired in compliance with the Geneva Conventions. Lastly, since the U.S. government reserves the right to continue to detain suspected terrorists even after they serve their sentences or are acquitted at trial, such as in Khan’s case, pre-trial agreements that propose shorter sentences may be undermined. Khan has described his decision as a “leap of faith” – hoping that

he will be released after serving whatever sentence he is given.

If the U.S. government continues to retain the right to continue to detain suspected terrorists, countries, including Canada in Khadr’s case, may be justified in their wariness to accept Guantanamo detainees. Ultimately, pre-trial agreements may be the immediate answer to satiating indefinite detention concerns; however, if national security interests are considered, they will always be weighed in favor against any long-term implications.