With Few Strong Cases, Government Rushes Toward Plea Deals for Guantanamo Detainees

EXCERPT by Dafna Linzer | ProPublica | November 13, 2009

As the United States moves to prosecute Khalid Shaikh Mohammed and four others accused of being conspirators behind the Sept. 11, 2001, attacks, federal and military prosecutors are racing each other to strike plea deals with at least a dozen additional Guantanamo detainees whose testimony could be used against some of the most notorious prisoners.

The plea bargaining exposes the difficulty the government faces in bringing prosecutable cases against these defendants and others still in Guantanamo. Most of the remaining detainees are considered too difficult to prosecute, mostly because the evidence against them is thin or based on statements obtained through coercion.

One defense attorney said federal prosecutors had so little on his client that they asked the detainee to suggest a charge he would be willing to plead guilty to.

The unusual, competitive nature of the government's efforts, which pit the Justice Department against the Pentagon, was described by both defense attorneys and senior government officials. The officials acknowledged that the flurry of offers underscores the weaknesses in the cases against many of the Guantanamo inmates whom the Obama administration had hoped to prosecute.

A former senior Justice Department official who was directly involved in the cases said the rivalry could be damaging. "You can't have someone being fought over by two different systems," the official said. "It is not illegal, but it's certainly corrupt." ...

Interagency working groups headquartered inside the Justice Department have been combing files of detainees for months in search of possible cases to prosecute. But three government officials said the painstaking process failed to yield enough winnable cases and officials have struggled over whom to charge. Justice Department officials have said the cases of 40 detainees have been referred to government prosecutors for possible prosecution. But an administration official said it was unlikely that charges would be brought against more than 30. ...

David Remes, a Washington defense attorney who represents a number of detainees, would not discuss specific offers or discussions under way with federal and military prosecutors. But he argues that it would be difficult for the government to win trials against men who have not been charged in seven years. "The government is fishing in very shallow water," said Remes, who is at Guantanamo this week to meet with clients.

"The government would simply like to add notches to his belt by getting additional victories. But it has already charged all the men it believes did bad things. Any additional men are undoubtedly being targeted in order to turn against the original group," Remes said. ...

David Remes, a Washington defense attorney who represents a number of detainees, would not discuss specific offers or discussions under way with federal and military prosecutors. But he argues that it would be difficult for the government to win trials against men who have not been charged in seven years. "The government is fishing in very shallow water," said Remes, who is at Guantanamo this week to meet with clients."

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