One of the more curious tidbits to emerge from the Senate Armed Services Committee’s draft of the FY2017 National Defense Authorization Act (which the Committee approved last Thursday by a 23-3 vote) is a provision that (apparently) would allow Guantánamo detainees to “to plead guilty to criminal charges in Article III courts via teleconference and authorizes the government to transfer such detainees to third countries to serve out their sentences.” Our best efforts notwithstanding, the actual text is apparently still not available (thanks, SASC!). But at the risk of jumping the gun, this post seeks to explain why such a provision (1) is actually a good idea; and (2) almost certainly does not raise constitutional concerns. 

I.  The Purpose of the Plea Provision

There’s a fairly decent case to be made that no new legislation is even necessary to allow Guantánamo detainees to plead guilty via videoconference to appropriately filed criminal charges in an Article III court. Rule 43 of the Federal Rules of Criminal Procedure could be read to require a defendant to “be present” for a plea colloquy (which, in light of the existing restrictions on transferring detainees into the United States, ain’t happening), except that multiple district courts have held that, in light of 2002 amendments to Rules 5 and 10 of the Federal Rules of Criminal Procedure (providing that a defendant’s “presence” can be effected via videoconference at his initial appearance and his arraignment), presence can also be effected via videoconference at the guilty-plea stage if warranted by the circumstances. Indeed, there may be far more examples of such cases, since successful pleas that are not challenged tend not to generate reported case law.

To be sure, a handful of district courts have come out the other way, but only in cases in which there was no compelling reason why the defendant couldn’t appear in person. And, as significantly, no court of appeals has invalidated a guilty plea by videoconference since the 2002 amendments. Indeed, in the specific context of criminal prosecutions of high-value terrorism suspects, the Fourth Circuit has expressly sanctioned novel uses of videoconference technology that arguably transcend the text of the Federal Rules. Simply put, my own view is that there’s already a more-than-decent argument that, under the right circumstances, a Guantánamo detainee can plead guilty via videoconference in an Article III court.

All that said, a statute expressly authorizing such pleas from Guantánamo detainees would, quite obviously, settle the matter, since Congress is free to override the Federal Rules of Criminal Procedure by statute. And, if written correctly, the statute would also presumably take no position on the correct interpretation of Rule 43, leaving that issue to the district courts in non-Guantánamo cases, without changing existing law. That raises question of whether it’s constitutional for a defendant to plead guilty via teleconference, but more on that below.

The more interesting policy question, methinks, is whether any of the detainees will actually avail themselves of such an opportunity — to end their military detention by pleading guilty to civilian criminal offenses and serving their resulting sentences overseas. Although I’ve represented two detainees in the past, I do not represent any of the 80 remaining men at Guantánamo, and so obviously can’t (and wouldn’t deign to) speak for them or their attorneys. But it’s not hard to imagine that, for at least some of the high-value detainees — for whom transfer and release may not be an especially realistic option, even in the long term — pleading guilty and being sentenced to a specific term of imprisonment might be more attractive than the continued purgatory they face at Guantánamo (or, if President Obama gets his way, elsewhere). Thus, one intriguing example might be Majid Khan, thanks to his role as a cooperator — something that plea bargains in civilian courts know full well how to take into account.

But even if the ultimate size of the class is small, it seems to me that, so long as the provision is limited to the Guantánamo detainees, there’s no compelling policy reason not to at least put that option on the table… And as time marches inexorably on, having detainees plead guilty may be an increasingly attractive option from all sides, in contrast to perpetual military detention (that may increasingly be the sole reason for keeping the 2001 AUMF on the books). Indeed, this approach may be that much more attractive as a compromise measure, since it’s a means of reducing the “irreducible minimum” of remaining Guantánamo detainees that does not require a repeal of the ban on transfers into the United States.

II.  The Constitutionality of the Plea Provision

As for whether it would be constitutional to allow Guantánamo detainees to plead guilty via teleconference, let me suggest that this is, in fact, a fairly straightforward question about whether such pleas will be deemed to be knowing, intelligent, and voluntary, for purposes of Rule 11 of the Federal Rules of Criminal Procedure. This is so because defendants can usually waive most of the constitutional protections that a criminal trial and sentencing via videoconference might otherwise implicate (the same protections that would pose serious constitutional problems for some of the videoconference-related amendments to the Military Commissions Act proposed by the Obama administration and critiqued by Daphne Eviatar, which are not tied to waivers by the defendants).

Waiver is the key here; knowing, intelligent, and voluntary waivers can be used to sidestep a criminal defendant’s right to a grand jury indictment; a right to a particular venue; a right to a sentencing hearing (as opposed to an agreed-upon sentence or a sentence to be determined in the discretion of the sentencing judge); a right to be physically present; and, perhaps most importantly, a general right to appeal (with exceptions for illegal sentences or ineffective assistance of counsel claims). Such pleas can also manifest a defendant’s agreement to be immediately removed from US custody (waiving any right to object in deportation proceedings). And although there is some question about whether Confrontation Clause rights can be waived (or satisfied through videoconferencing), in the specific context of a plea bargain, that provision simply isn’t implicated, since there are no witnesses or evidence for the defendant “to confront.”

The question in the Guantánamo context, then, is not whether such waivers are generally permissible (they are), but rather whether they’ll be deemed effective — which, in turn, depends upon whether they are knowing, voluntary, and intelligent. And although it’s impossible to generalize the answer to that question in each case, district judges have long experience in answering that question, and in fashioning procedures (and plea colloquies) that would ensure that such waivers are indeed knowing, voluntary, and intelligent in each individual case.

Nor is there anything to the more general argument that, by dint of their current situation, the Guantánamo detainees are categorically incapable of “voluntarily” doing anything. After all, courts routinely hold that pleas are not coercive just because they come in exchange for reduced charges (including in exchange for taking the death penalty off the table). Similarly, courts have also routinely held pleas to be voluntary even where the defendant was previously exposed to coercive conduct. And, most significantly, the Al Bahlul litigation arising out of the military commissions has already produced one en banc D.C. Circuit ruling (and may shortly produce a second) holding that a Guantánamo detainee can waive particular constitutional objections simply by not raising them at trial. (Indeed, if Guantánamo were an inherently coercive environment for these purposes, then how could the military commissions themselves be remotely constitutional, let alone plea bargains before them?)

Thus, a guilty plea from a Guantánamo detainee in exchange for his release from military detention, even where the detainee in question was previously tortured, could still be voluntary — so long as the plea itself was not made under duress. In a case in which a district judge conducts a robust Rule 11 colloquy, then, and assures herself that a Guantánamo 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. To be sure, many of us may be uncomfortable with such a capacious understanding of voluntariness; my point here is simply that it’s what the case law currently reflects and allows in all contexts, and there’s no reason why Guantánamo should be different for these purposes (let alone the irony of creating a uniquely high bar for Guantánamo detainees to exercise their own agency).

Finally, from the government’s perspective, it seems to me that there’s very little litigation risk arising from such plea agreements. Yes, there are a handful of rights that can’t be waived in a plea bargain (including the right to challenge the ineffectiveness of trial counsel, the illegality of the sentence, and the trial court’s jurisdiction). But it seems to me that a sufficiently detailed Rule 11 plea colloquy can go a long way toward mitigating most of those concerns — and toward turning any subsequent effort collaterally to attack such a plea agreement into a patently meritless suit. And, perhaps most importantly, if a district judge is not sufficiently convinced that the plea (and concomitant waivers) are knowing, intelligent, and voluntary, then we’re just right back where we started, with the detainee in indefinite military detention Guantánamo.

Again, it remains to be seen how many Guantánamo detainees would actually want to avail themselves of this option, but this strikes me as a salutary — and constitutional — development, quite unlike the videoconference-related amendments to the Military Commissions Act, which would open the door to videoconferencing of key parts of military commission trials without the defendant’s consent. More fundamentally, and more significantly, it would be a tentative but significant step toward recognition that our ordinary civilian courts are, and always have been, the best option for resolving the fate of terrorism suspects, even those who have already spent upwards of 14 years at Guantánamo.