Guantanamo Detainees and the Right to Die

     Should Guantanamo detainees facing the death penalty for their alleged roles in the 9/11 attack be allowed to plead guilty without ever going to trial?  I suspect that a strong majority of Americans would say "yes," with little hesitation; an Administration proposal to allow pleas in these cases (reported by the New York Times) seems likely to encounter opposition primarily from human rights advocates, law professors not occupying the White House, and defense attorneys concerned with the voluntary nature of guilty pleas obtained after torture and years of extra-judicial detention, as well as with the legal and moral propriety of allowing guilty pleas in capital, military commission cases.  (Advocates of assisted suicide might also wonder why alleged 9/11 terrorists should effectively enjoy rights generally denied to the law-abiding, terminally ill.)
   
     The detainees themselves, however, have reportedly indicated their desires to plead guilty, raising awkward questions for attorneys involved in representing or assisting them.  Should they advocate for their clients' prerogatives to engage in what is probably the only act of self-determination left to them - pleading guilty in a quest for execution and martyrdom?  Or should Guantanamo detainees who have suffered torture and prolonged imprisonment be considered effectively incompetent to plead?  In these cases, are the rights of the accused to determine their own fates merely cynical excuses for the government to avoid the demands of due process, more exposure of "enhanced interrogations," and the trouble of a trial?
   
     Are there other considerations for attorneys counseling the detainees? ACLU lawyer Denny LeBoeuf suggested to the Times that the public interest requires that the detainees be tried, not summarily convicted on the basis of pleas.  "'Don't we have an interest as a society,' Ms. LeBoeuf asked, 'in a trial that examines the evidence and provides some reliable picture of what went on?' "  
   
     Defense attorneys, however, don't represent society (that's the prosecutor's job); they represent their clients, obviously.  For counsel to the detainees, the public interest in learning whatever a trial might reveal about 9/11 and our government's use of torture against the alleged conspirators is secondary, at best, as LeBoeuf understands better than I; she's a dedicated, experienced capital defense attorney (whom I've known for years.)  So, in advocating for the public interest, LeBoeuf doesn't seem to be advocating for the detainees.  

     But she's also director of the ACLU's John Adams Project, established in 2008 and promoted in fund-raising appeals as a groundbreaking initiative to provide defense counsel for these "high value" detainees charged in the 9/11 attack.  LeBoeuf's remark and her vague identification in the Times as an ACLU lawyer "who works on Guantanamo death penalty issues," suggests that the John Adams Project is not, in fact, involved in representing the alleged 9/11 conspirators (unless perhaps the ACLU has a retainer agreement with detainees specifying that its notion of the public interest could govern the representation, which I doubt.)  The ACLU website states that the John Adams Project "has worked with under-resourced military lawyers to provide legal counsel for several of the Guantánamo detainees," raising questions about whether the ACLU "is working" to assist in their defense and how attorneys might represent simultaneously the public's interest and the interests of the detainees.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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