This is a must read. When you scroll down, you'll see first hand notes from Anthony Romero at the ACLU who was given access to GITMO discussing what wasn't said in the Washington Post story referenced at the end. (snipped for relevant conversation)
....I just arrived off an airplane from Gitmo last night and thought you would appreciate an update on what happened down there this week. No doubt you have seen the many press reports, but I thought I would try to piece it together for you and let you know where it all stands from my perspective. First, I would point out that our struggle to shut Gitmo and shutter the military commissions is far from over, nor is it a fait accompli. That's the good news and the bad news. You probably read in the papers that all five defendants expressed an interest in entering guilty pleas in the 9/11 case. This wasn't news to us, as they essentially expressed that viewpoint from the very first hearing in June of this year. What did change was that the defendants have been meeting as a group since the last hearing. They have recently asked to have all pending law and evidentiary motions withdrawn and that they be allowed to proceed to enter guilty pleas and be sentenced to death. All five men submitted a handwritten motion to the Military Judge on November 4, 2008 (Election Day) stating that this is how they would like to proceed. The process for how this might happen is not clear from the press clips I looked at last night. First, the defendants have to formally enter guilty pleas, which they did not for reasons I will explain below. Second, the Military Judge has to accept the pleas, but only after an extensive round of questioning and a review of the evidence that supports the entry of those pleas. In normal courts, this process is known as "allocution" and even in these fundamentally flawed commissions, it is hard to imagine any judge accepting guilty pleas in capital cases without undertaking this second stage with rigor and care. Third, a panel of 12 jurors (most likely military officers) would have to be convened, and they would have to render a unanimous decision in order for a death sentence to be applied. None of this happened this week. Why? First, two of the five defendants do not represent themselves. These two were not allowed to go pro se, as there were questions about the intentions and their competency to knowingly and voluntarily waive their right to counsel. One of them, Ramzi bin al Shibh, had been placed on psychiatric medication against his will. The issue of competency is also being raised in the case of Mr. al Hawsawi. For these two defendants, they are still represented by JAG lawyers and by civilian counsel from the John Adams Project. In fact, Jeff Robinson from our John Adams Project did an outstanding cross-examination of Brig. General Hartmann on the unlawful command influence motion that did not garner any press attention. Legal and evidentiary motions on behalf of bin al Shibh and al Hawsawi have NOT been withdrawn and we expect continued back and forth with the government until issues of their competence have been resolved. Only then could Judge Henley allow them to represent themselves and move to the next stage of entering pleas. Second, three of the five defendants who do represent themselves (although we are still stand-by counsel for all three) changed their mind from the morning to the afternoon on Monday as to whether they wished to formally enter guilty pleas this week. Ironically, there is a conflict between the rules and the discussion section of the Military Commissions Act that leaves it unclear as to whether the death penalty could attach in an instance where guilty pleas are entered. In other words, if they plead guilty it is not clear they could be executed ("martyred" in their minds). When Mr. Mohammed learned this from our lawyers at lunch, he did a turn-around and said that he was not willing to enter pleas today until he gained clarity from Judge Henley on this issue. Third, after our John Adams lawyers conferred with the 3 pro se defendants at lunch and explained that if they proceed separately without resolution of the other two who are still represented by counsel, the five cases would not continue to proceed together. The idea that moving ahead on Monday on three pleas would essentially leave their other two "brothers" (as KSM put it) behind, made them reconsider their decision, much to the consternation of the prosecutor and the Military Judge. That's when we all breathed a sigh of relief for now. Finally, our status as lawyers for all five is a fluid situation. As I explained, two of the five are still directly represented by the JAG and John Adams Lawyers. KSM did fire his JAG lawyer, Prescott Prince, but by the afternoon he had welcomed ACLU lawyer David Nevin back to the counsel's table, was conferring with him, and receiving input from him. As in many capital cases, lawyers often encounter this on-again/off-again dynamic with clients -- even more so with those who have been tortured and waterboarded. The fact is Mr. Nevin and KSM have developed the best attorney/client relationship of anyone on his team, and they are meeting later this week in Gitmo to figure out next steps. This is far from over. Guilty pleas have not been entered or accepted, and we are a long way off (I hope) from sentencing. What we have done by providing expert civilian defense counsel is ensure that the worst case scenario (pleas, entering of pleas, and sentencing) did not happen in the remaining days of the Bush administration. Without the ACLU and NACDL's involvement, I can immodestly speculate that that almost certainly would have happened this week. ......
https://wikileaks.org/podesta-emails/emailid/40202
