Military Commissions

Al-Darbi Arraignment #2: Nuts and Bolts

By Wells Bennett
Thursday, February 20, 2014, 11:00 AM

With Al-Darbi’s guilty plea entered, we turn to the nuts and bolts for pleas under the Military Commissions Act and implementing rules---of which there are many.  Given that numerosity, we’ll summarize the next phase of the hearing in sketch form only.

First, Allred explains the nature of a guilty plea to Al-Darbi, which the court will not accept absent the accused’s understanding of precisely what he will admit to, and what that will mean.  The principles are familiar: don’t plead guilty if you don’t really mean it; courts don’t accept guilty pleas absent a factual basis; a guilty plea waives a right to contest the government’s evidence; and so on.  Each time the military judge asks, the accused says he understands and accepts all this.

Now to the stipulation of fact, which will underlie Al-Darbi’s plea.  This proceeds along the same lines as before: when questioned, the accused says he read the entire document (127 pages including attachments), discussed it with his lawyers in detail, and signed it.  (Your correspondent hasn’t yet seen this document, which isn’t publicly available so far.)  The facts in the stipulation, Al-Darbi admits, are true to the best of his knowledge and belief.

Legal stuff follows, as the military judge reads off and defines, among other things, the threshold requirements for commission jurisdiction and the elements of offenses.  The accused says he accepts that he is a person subject to trial by commission, an “alien enemy unprivileged belligerent.” Likewise he says he understands various theories of vicarious liability under the MCA, as Allred describes them.

When Allred goes over the legal ingredients of the five charges brought against Al-Darbi----including the requirement that the crimes were committed in the context of and associated with hostilities governed by the law of armed conflict---the accused says he understands, and has discussed such things with his counsel.  The allegations either describe his own conduct, or conduct legally attributable to him, he agrees.  Does he agree, for example, that the attack outlined in Charge One was directed against civilians?  Yes.  And just checking: does Al-Darbi still agree with account contained in the stipulation of fact, so far as concerns Charge One?  Yes again.  (As if to reiterate the prosecution’s vicarious liability theory, the accused himself puts on the record that, at the time of the Limburg attack, he had been in custody for four months.)  Or what about Charge Two, regarding an attack on civilian objects; yeah, Al-Darbi understands and accepts the legal mechanics and factual allegations there, too, among other things that the M/V Limburg was not a legitimate military target.  Similar questions and answers are heard thereafter, each time, as court and counsel march through the specifications and legal elements associated with each count against Al-Darbi---including possible defenses.  Al-Darbi admits that he did not, for example, withdraw from a “common plan” to commit the offenses charged.

So much for the crimes charged.  Judge Allred now turns to punishment, and the contents of Al-Darbi's pre-trial agreement.