Last week Steve wrote about the then-not-yet public provision in the Senate version of the FY2017 National Defense Authorization Act (NDAA) that would permit Guantánamo detainees to plead guilty to criminal charges in Article III courts without ever stepping foot on US soil. The text of the provision (as well as the entire draft NDAA) is now out. The operative provision is here:


(a) USE OF VIDEO TELECONFERENCING.—A judge of a United States District Court shall have jurisdiction to take any of the following actions by video teleconferencing with respect to an individual detained at Guantanamo:

(1) Arraign the individual for a charge under the laws of the United States.

(2) Accept a plea to a charge under the laws of the United States.

(3) Enter a judgment of conviction and sentence the individual for a charge upon which the individual is convicted as a result of such a plea.

An action specified in paragraph (1), (2), or (3) may be taken by video teleconferencing only with the consent of the individual.

(b) VENUE.—A judge of a United States District Court may act by video teleconferencing under subsection (a) only where such District Court maintains venue concerning the offense alleged.

(c) TRANSFER TO SERVE SENTENCE OF IMPRISONMENT.—The Attorney General may transfer to a foreign country an offender who is convicted of an offense by reason a plea entered into as described in subsection (a) and who is under a sentence of imprisonment resulting from such conviction. Any such transfer shall be made for the purpose of the offender serving the sentence imposed on him, and shall be made under chapter 306 of title 18, United States Code, without regard to the provisions of section 4107 and subsections (a) and (b) of section 4100 of that title.

[A short definitions section follows.]

Amidst a hodge-podge of restrictions on transferring detainees out of Guantánamo — even when they have been cleared to leave by every national security agency in the government — this is a welcome provision. (Charlie Savage has a good write up of one of the more bizarre — and redundant — new transfer restrictions here.)

Among the many benefits:

It provides an alternative to the interminable military commissions prosecutions. It is thus a potential much more viable — and timely — means to hold detainees to account for their crimes.

It provides the option, although not the requirement, that the detainee serve out his sentence in either his home country or elsewhere (although not within the territorial United States, of course!). This creates another possible route for whittling down the Guantánamo population, consistent with national security.

It provides a long-term, and much more legitimate, tool for the incapacitation of those Guantánamo detainees that have committed a range of terrorism-related crimes. Once convicted, the detainee could be held until the completion of their sentence. The alternative basis for detention — so-called law of war detention — is more precarious; once a court deems the relevant conflict to be over, the detainees will be ordered released.

Steve has already analyzed — and debunked — the purported legal objections to such a provision, and I agree whole-heartedly with his analysis. To sum up: Whereas Rule 43 of the Federal Rules of Criminal Procedure (FRCrP) requires a defendant to “be present” at an arraignment, plea, or sentencing, statutes override the Federal Rules. This draft statute couldn’t be more explicit: Consensual videoconferencing of Guantánamo detainees would be permitted at each of these stages.

Moreover, as Steve points out, even without this statute, the purported concerns appear overstated. Other provisions of the FRCrP make explicit that videoconferencing is permitted, at least for the initial appearance and arraignment; several courts already have permitted a guilty plea colloquy to take place by video conference (even without this statute in place); and no appellate court has invalidated a video conference guilty plea.

The constitutional concerns are equally unavailing. The key issue here is whether the plea — and the decision to do so by video conference — was given knowingly, intelligently, and voluntarily. Some may question whether Guantánamo detainees can do anything voluntarily. But, rightly or wrongly, courts have long held that detainees in coercive situations can voluntarily enter guilty pleas. After all, defendants regularly plea to escape what would otherwise be an almost certain life sentence or extended term of years; there is thus little credence to the claim that Guantánamo detainees can’t enter a voluntary plea by dint of their status as Guantánamo detainees.

Finally, some may have questions about venue. But that has already been dealt with be a separate, long-standing statute. 18 USC § 3238 explicitly addresses venue for extraterritorial offenses and makes clear that if the offenders are neither arrested nor brought into the United States, the appropriate venue is the District of Columbia.

Thus, from the government’s perspective, the litigation risk is low. Moreover, once the guilty plea is entered and sentence imposed, the case is presumptively over. The detainee will serve his sentence — either in Guantánamo or elsewhere. Contrast that to the law of war detainees that are never charged or convicted. The US government is already fighting “end of conflict” habeas challenges based on the theory that the particular conflict for which the detainee was detained has ended, and he should therefore be released. To date, detainees have lost such claims. But the claims will no doubt keep coming, and at some point, some court may actually agree with some such detainee. Had the detainee been convicted, he could continue to de detained until the end of his sentence (which if we look at the civilian court record is likely to be a fairly lengthy period of years). If not, he will be ordered released.

It is of course unclear whether detainees would avail themselves of this plea option. They do, after all, have to consent. But at least from a national security perspective, it provides a welcome, additional tool for potentially whittling down the Guantánamo population; offers relatively expeditious means of bringing detainees to justice (as compared to endlessly protracted military commission trials); and, if successful, provides additional insurance against court-ordered release.