Exclusive: Justice Department opposes new
Obama proposal on Guantanamo
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[June 21, 2016]
By Charles Levinson
NEW YORK (Reuters) - President Barack
Obama is again facing dissent from within his administration – this time
from Attorney General Loretta Lynch - over his plans to shutter the
Guantanamo Bay military prison, according to senior administration
Lynch, a former federal prosecutor whom Obama appointed to head
the Justice Department two years ago, is opposing a White
House-backed proposal that would allow Guantanamo Bay prisoners to
plead guilty to terrorism charges in federal court by
videoconference, the officials said.
Over the past three months, Lynch has twice intervened to block
administration proposals on the issue, objecting that they would
violate longstanding rules of criminal-justice procedure.
In the first case, her last-minute opposition derailed a White
House-initiated legislative proposal to allow video guilty pleas
after nearly two months of interagency negotiations and law
drafting. In the second case, Lynch blocked the administration from
publicly supporting a Senate proposal to legalize video guilty
“It’s been a fierce interagency tussle,” said a senior Obama
administration official, who supports the proposal and asked not to
White House officials confirmed that President Obama supports the
proposal. But the president declined to overrule objections from
Lynch, the administration’s top law-enforcement official.
“There were some frustrations,” said a White House official who
spoke on condition of anonymity. "The top lawyer in the land has
weighed in, and that was the DOJ’s purview to do that.”
If enacted into law, the Obama-backed plan would allow detained
terrorism suspects who plead guilty to serve their sentences in a
third-country prison, without setting foot on U.S. soil. The plan
would thus sidestep a Congressional ban on transferring detainees to
the United States, which has left dozens of prisoners in long-term
judicial limbo in Guantanamo, the American military enclave in Cuba.
Obama has vowed to close the prison on his watch. But while he has
overseen the release of some 160 men from the prison, the facility
still holds 80 detainees.
The video plea plan has broad backing within the administration,
including from senior State Department and Pentagon officials. A
Defense Department spokesman declined to comment.
The most enthusiastic backers of the plan have been defense lawyers
representing up to a dozen Guantanamo Bay detainees who are eager to
extricate their clients from seemingly indefinite detention.
Republicans in Congress have opposed the president’s plans to empty
the prison, on the grounds that many of the detainees are highly
dangerous. But there is some bipartisan support for the proposal as
well, a rarity in the Guantanamo debate.
Kevin Bishop, a spokesman for Senator Lindsey Graham, a leading
Republican voice on defense and national security issues, said
Graham was “intrigued” by the proposal.
While support from a Republican senator would by no means guarantee
the votes needed to pass, it does give the proposal a better chance
than schemes that would transfer detainees from the Cuban enclave to
the United States.
Obama views the video feed proposal as a meaningful step toward
closing the facility and making good on one of his earliest pledges
as president, administration officials said.
Of the 80 prisoners remaining in Guantanamo, roughly 30 have been
approved for transfer to third countries by an interagency review
board. Most of those 30 men are expected to be released from
Guantanamo in coming weeks, according to administration officials.
The officials said they think that as many as 10 more prisoners
could be added to the approved-for-transfer list by the review
board. Finally, another 10 detainees are standing trial in military
That leaves roughly 30 detainees whom the government deems too
dangerous to release but unlikely to be successfully prosecuted in
court. As a result, those men would likely have to be transferred to
detention in the United States if the prison were closed.
Administration officials say that allowing video feeds could reduce
that number to somewhere between 10 and 20. The administration
believes that with such a small number of prisoners requiring
transfer to the United States, it would be easier to win support for
closing the facility, which is run by a staff of 2,000 military
“This is the group that gives the president the most heartburn,”
said the senior administration official.
Lynch and her deputies at the Justice Department argued that the
laws of criminal procedure do not allow defendants to plead guilty
remotely by videoconference.
Even if Congress were to pass the law, Lynch and her aides have told
the White House that federal judges may rule that such pleas are in
effect involuntary, because Guantanamo detainees would not have the
option of standing trial in a U.S. courtroom.
[to top of second column]
The outside of the "Camp Five" detention facility is seen at U.S.
Naval Station Guantanamo Bay, Cuba December 10, 2008. REUTERS/Mandel
A defendant in federal court usually has the option to plead guilty
or face a trial by jury. In the case of Guantanamo detainees, the
only option they would likely face is to plead guilty or remain in
“How would a judge assure himself that the plea is truly voluntary
when if the plea is not entered, the alternative is you’re still in
Gitmo?” said a person familiar with Lynch’s concerns about the
proposal. “That’s the wrinkle.”
Lawyers for Guantanamo detainee Majid Khan, a 36-year-old Pakistani
citizen, first proposed allowing Khan to plead guilty by
videoconference in a legal memo submitted to the Department of
Justice in November. In 2012, Khan confessed in military court to
delivering $50,000 to Qaeda operatives who used it to carry out a
truck bombing in Indonesia, and to plotting with Khalid Shaikh
Mohammed, the mastermind of the Sept. 11 attacks, on various planned
Senate investigators found internal CIA documents confirming that
Khan’s CIA interrogators subjected him to forced rectal feedings.
Khan’s lawyers say the experience amounted to rape. He was also
That treatment makes it difficult for the Department of Justice to
successfully prosecute Khan in federal court, according to
When White House officials learned that Khan and other detainees
were ready to plead guilty to terrorism charges in federal court,
they thought they had found a solution.
Efforts to try detainees, including Mohammed and other Sept. 11
suspects, in military tribunals at Guantanamo have bogged down over
legal disputes. Only eight defendants have been fully prosecuted.
Three verdicts have been overturned.
“The beauty of a guilty plea is you don’t need a trial,” said the
senior administration official who supports the video plea proposal.
In February, senior Obama aides proposed pushing ahead with video
guilty pleas at an interagency meeting at the White House on the
closure of Guantanamo, according to officials briefed on the
Justice Department officials said they opposed video guilty pleas.
Matthew Axelrod, the chief of staff to Deputy Attorney General Sally
Yates, said the proposal would violate laws of criminal procedure,
according to the officials.
The meeting ended with an agreement to pursue new legislation
allowing the guilty pleas, the officials said, which the Department
of Justice supported.
One week later, President Obama rolled out his plan to close the
prison in a nationally televised announcement from the Roosevelt
Room. Obama’s plan included seeking “legislative changes … that
might enable detainees who are interested in pleading guilty" in
U.S. federal courts.
Administration officials spent much of the next two months drafting
the new law. On a Friday afternoon in mid-April, White House staff
emailed all the involved agencies with a final draft of the bill,
according to the officials. The bill would be submitted to Congress
the following Monday, the White House email said.
That weekend, Lynch intervened unexpectedly and said the Justice
Department opposed the bill. The eleventh-hour move frustrated White
House staff. Deciding again to not overrule Lynch, the White House
shelved the bill.
In late May, White House officials found a sympathetic lawmaker who
inserted language authorizing video pleas into the annual defense
spending bill. The White House drafted a policy memo publicly
supporting the proposal, which is known as a Statement of
Administration Policy, or SAP.
Lynch opposed the idea, according to administration officials,
sparking renewed tensions between the Justice Department and White
A SAP is the president’s public declaration on the substance of a
bill, according to Samuel Kernell, a political science professor at
the University of California at San Diego. Without one, it’s often
more difficult to get lawmakers on the fence to vote the way the
White House wants.
The White House again bowed to Lynch’s objections and declined to
issue the SAP.
(Additional reporting By David Rohde. Editing by Michael Williams)
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