Last month, Ahmed Muhammed Haza al Darbi became the sixth Guantanamo detainee to plead guilty to war crimes before a military commission.  The U.S. has accused al Darbi of various offenses in connection with the 2002 attack by al Qaeda on the MV Limburg, a French-flagged oil tanker, off the coast of Yemen.  Prior posts by Thomas and Marty explain how al Darbi’s guilty plea avoids a ruling on the Military Commissions Act’s requirement that the offense be “committed in the context of and associated with hostilities.”  (That important issue is now being briefed in al Nashiri case).  The guilty plea also highlights the continued paradox created by a trial system that effectively occupies an island in a sea of indefinite detention.

Guantanamo rests on a dichotomy between prisoners held in nonpunitive law-of-war detention for the duration of hostilities and those who, in addition to being subject to law-of-war detention, may also be prosecuted for war crimes.   That distinction has roots in precedent (Ex parte Quirin, for example) and the law of armed conflict.   But, as I explain in a recent article, the dichotomy breaks down when it is superimposed on a transnational armed conflict against terrorist organizations that differs significantly from the traditional international armed conflict paradigm on which it is based.

The conflict with al Qaeda and associated forces inherently contains a greater potential for prolonged detention than international armed conflicts, with their more clearly defined temporal parameters.   Additionally, enemy fighters in this conflict are regarded as inherently culpable, notwithstanding the nonpunitive label assigned to them.   This presumption of culpability is perhaps best illustrated by the convergence of the standard for law-of-war detention under the 2001 Authorization for Use of Military Force (AUMF) and broad liability under the MCA for offenses such as material support for terrorism (MST).  The latter covers providing support or resources, including providing oneself as personnel, to a designated organization—substantially same criteria used to determine membership in a covered enemy force for purposes of the AUMF.   The U.S. thus could, if it chose, prosecute for MST virtually every enemy fighter subject to AUMF detention as “part of” al Qaeda or an associated force.

Under the current system, detainees who may be more culpable (and, as in al Darbi’s case, may therefore have more valuable information to offer prosecutors) have the opportunity to negotiate an earlier exit from Guantanamo.  As Marcellene Hearn has observed, four out of the five commission defendants who have pled guilty and been sentenced are now in their home countries (David Hicks, Ibrahim al Qosi, Omar Khadr, and Noor Uthman Mohammed); and the fifth (Majid Khan) agreed to a plea deal similar to al Darbi’s—a guaranteed sentencing recommendation (and, presumably, the possibility of release in 2016 after testifying against other “high value” detainees).  By contrast, individuals who are subject AUMF detention, but whom the government has chosen not to charge, lack any comparable opportunity to negotiate their release.

The civilian criminal justice system is not without its contradictions.  A drug dealer with sufficient knowledge about those higher up in the criminal enterprise can, for example, often negotiate a better deal by cooperating with prosecutors than those lower down the ladder who, while less culpable, lack the same knowledge about the enterprise.  But that low-level offender at least has the opportunity to negotiate, and the right to demand a trial and be sentenced if no deal is struck.

The current system also diminishes the expressive value of convictions.  As long as pleading guilty to a war crime appears a viable, if not the best hope, of exiting Guantanamo, military commissions will fail to achieve one of their core purposes: expressing condemnation of those truly guilty of serious criminality in armed conflict, such as the deliberate targeting of civilians.  Addressing military commissions’ continuing legitimacy deficit not only means fixing intra-commission problems, including overbroad subject matter jurisdiction, procedural shortcomings, and excessive secrecy.  It also demands cutting the Gordian knot of indefinite detention.