When Khalid Sheikh Mohammed and his fellow 9/11 conspirators attempted to plead guilty, Army Colonel Steve Henley, the judge presiding over the pretrial hearing, was not sure if the Military Commissions Act allowed him to impose the death penalty. That was the reason KSM withdrew his offer. Henley asked for legal briefs from the parties yet the military commissions were shut down before he could rule and the resulting appeals to the D.C. Circuit could take place. Facts be damned, this has become a Democrat talking point.

During last Wednesday’s Senate Judiciary Committee hearing, there was this exchange:

SENATOR RICHARD DURBIN: I want to make it clear that I am not creating or trying to cast any kind of negative impression about military commissions … Is it not true though that under the procedural rules of military commissions there are some limitations compared to Article III courts, for example, when it comes to capital offenses?

ATTORNEY GENERAL ERIC HOLDER: Yes. In an Article III court, a person can plead guilty to a capital offense; that is not allowed in a military commission.

DURBIN: There would have to be, in fact, some trial even if they wanted to plead guilty under those circumstances. [slide video to 1 hour 14 minutes]

Beyond disingenuous, former White House Counsel Greg Craig is quoted in the Harvard Law Review from an April 6 interview:

[Craig] also noted that support for military commissions is particularly surprising in light of the fact that they are not allowed to sentence detainees to capital punishment. “If you care about capital punishment for KSM and these individuals, then you would support what Eric Holder recommended.”

The MCA authorizes the death penalty.

As Debra Burlingame points out, Congress could clear up any ambiguity by amending the statute. She adds:

“Why would anyone who supports an Article III capital plea vote against it? The defendant wants to plead guilty. Also, the plea allocution in military court is way, way more extensive than in civilian court. Remember Richard Reid’s famous plea allocution (where the judge famously said, “you’re no warrior”), that took less than an hour. Military court takes days. They get every little last detail on the record. The judge will ask KSM all the kinds of questions that would have formulated the evidence in a full prosecution at trial.”

The Obama administration unsuccessfully tried running this sham past her last year:

“When I was at the DOJ meeting with families last June, [a senior official on the DOJ’s Guantanamo Task Force] tried to tell families that KSM could not be executed with an MCA guilty plea and I called him on that misstatement. I said, wait a minute, that it was an ambiguous statute, the judge asked for briefs, and the case was suspended without an answer, but that Congress could cure the problem. [The senior official] was red-faced, and admitted I was right.”

The MCA says a judge in an military commission can make a finding of guilty without the panel voting:

“Sec. 949i. Pleas of the accused

“(a) Entry of Plea of Not Guilty.–If an accused in a military commission under this chapter after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the military commission shall proceed as though the accused had pleaded not guilty.
“(b) Finding of Guilt After Guilty Plea.–With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
…
“Sec. 949m. Number of votes required

“(a) Conviction.–No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.
“(b) Sentences.–
(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.

The MCA also says:

“No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.”

It is reasonable to suggest that a judge can accept a guilty plea and impose those sentences without the concurrence by three-fourths of the panel.

It follows that a judge could also impose the death penalty for capital offenses subsequent to a guilty plea; there has been no ruling to the contrary and Holder and Durbin both know it. With no law on the books against their casting “negative impression[s] about military commissions,” they will go on misinforming until the American people vote them out of office (and off C-SPAN). It is punishment enough that Craig has been reduced to misinforming President Obama’s old newspaper.