As Georgetown's Center for National Security Law notes, Khalid Sheikh Mohammed and four men who stand accused of helping him plan the September 11 attacks on the World Trade Center and Pentagon offered to plead guilty today in front of a military tribunal at Guantanamo Bay. However, U.S. Army Colonel Stephen Henley, the presiding judge, ordered a hearing to determine whether two of KSM's co-defendants, Ramzi bin al-Shibh and Mustafa al-Hawasi, were competent to enter their pleas. KSM and his other two co-defendants, Ammar al Baluchi and Walid bin Attash, postponed entering pleas until a competency hearing can be held for al-Shibh and al-Hawasi. According to the Washington Post, the defendants also expressed concern that their pleas could render capital punishment less likely.
Because the hearing is the first capital case to go before the tribunals, it remains an open legal question whether the Military Commissions Act's requirement that a unanimous jury of military officers vote for a capital sentence precludes a capital sentence arising from a guilty plea. See Military Commissions Act of 2006, Section 949m(b)(1):
No person may be sentenced by a military commission to suffer death, except insofar as–
(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty;
(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;
(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and
(D) all the members present at the time the vote is taken concur in the sentence of death.
Of course, an additional step in the process could be crafted to ensure a panel vote accompanies a guilty plea in capital cases, but what specific procedures are necessary under the statute is a legal question that will require advocacy from the parties and judicial consideration – even if, judging from press accounts, the defendants are not interested in pressing the issue. The decision the judge makes will affect other defendants; accordingly, the parties will submit briefs by January 4 interpreting Section 949m of the Military Commissions Act.
